November 8, 2015

The Right to Remain Silent in a Civil Context

That refusing to respond to questions does not justify an arrest for obstruction of governmental administration (OGA) has just been affirmed by the Second Circuit Court of Appeals. It's sort of an important decision. Many of the routine civil rights cases that I see involve the issue of respect and authority. Simple exchanges rapidly escalate and lost all semblance of proportionality to everyone's detriment. People are often needlessly hurt and arrested, and preconceptions are reinforced all the way around.

A classic example is when a police officer demands identification or an explanation for why the person is somewhere or where he is going to or coming from. These are the sorts of inquiries that are almost never made of certain people or in certain neighborhoods. Put differently, officers then to behave this way in poor areas populated by communities of color, who are sensitive to such race-based policing. When the person declines, the officer sees it as a sign of disrespect to him and his badge, and usually goes all in. As both sides dig in their heels it becomes clear that the only way the officer is getting the info is by forcibly taking it, but to do so without assistance would be foolish, so he radios for help. Moments later, backed up by another half-dozen officers, a forcible takedown is made. The civilian does not fight, but stiffens up, perhaps instinctively, perhaps out of anger, and more force is applied. Words are exchanged and batons or asps might be swung, pepper spray may be deployed. Crowds gather, filming and loudly complaining. The officers get nervous and call for even more backup. The original civilian is arrested because, if nothing else, the police now need to create a narrative to justify and explain all their conduct. The cold truth will usually not suffice, so it is embellished and ginned up until there are enough facts to justify the stop and the subsequent use of force. In cases that make it to lawyers like me, the charges are dismissed and litigation follows.