Criminal justice professor Maria Haberfeld explains all the things you need to keep in mind when you're stopped by the cops.
Late last month, a handful of conspiracy-minded websites started circulating an article entitled, "State Makes It Legal to Shoot Cops in Self-Defense If They Violate Your Rights." If you're wondering how you missed such an unprecedented change in the status quo between police and citizens in America, don't worry: The article blew up in niche online locales because it is highly misleading.
The law in question is actually a years-old Indiana statute allowing people to resist an unlawful home entrance by using a reasonable amount of force—and even lethal force in life-threatening situations. In 2012, the law was amended to clarify that public servants like cops are not exempt after a state Supreme Court ruling arguably could have prevented someone from claiming self-defense even if a rogue cop was, for example, trying to rape them. But the change in the law got hyped to hell and back as cops and citizens alike speculated about how it might pave the way for general resistance and even violence against police officers. But in short: It is still illegal, in Indiana and everywhere else, to open fire on a cop who is merely (for example) entering your property without a proper warrant.
The fact that this article spread online speaks to an unfortunate trend: As various civil-liberty groups attempt to educate citizens about their rights when it comes to encounters with cops, sometimes the message gets muddled. Some of the things promoted by groups like Flex Your Rights—declining to consent to searches, maintaining silence, asking to know what infraction you've committed, asking whether you're being detained, and filming all encounters with the police— are legit in the abstract. But advocates sometimes fail to point out to people who might try to exercise these rights just how circumscribed they are by local laws and court precedents, how cops might have knowledge and rights empowering them to act in ways you aren't aware of, or how risky exercising these rights can be in practice.
To clear all this up, VICE reached out to Professor Maria Haberfeld, the chairperson of the John Jay College of Criminal Justice's Department of Law, Police Science and Criminal Justice Administration. Although sympathetic to the desire to assert your rights, Haberfield thinks you should generally do what a cop tells you to do and pursue justice later on. And, yeah, shooting a cop in "self-defense" is almost always as dumb (and illegal) as it sounds.
VICE: What are the biggest caveats people looking to assert their rights in encounters with the police should keep in mind?
Maria Haberfeld: Resistance can create very dangerous situations, because police officers might interpret resistance as a guilty stance or aggressiveness or actually a threat against them and things can escalate within a split-second. It has to do with... the subculture of policing that emphasizes that only guilty people resist a police officer—so [they think that] if somebody doesn't want you to enter their apartment, if somebody doesn't want to be stopped and frisked, he's hiding something.
I always tell people, when we discuss, "What are my rights?" in class, that you have the rights. But when a police officer tells you to do something, the wisest thing to do is to follow [their instructions] unless it's absolutely outrageous and egregious—obvious misconduct like, "You have to undress right now." After it's done and you feel your rights have been violated, lawyer up and sue the department. But trying to take the law into your own hands is very dangerous.
Filming cops is legal in most states, probably doesn't count as active resistance, and could even be useful in a police misconduct case or claim. Are there things people should be wary of if they want to record police encounters?
Usually people don't follow police officers who're just standing in traffic. They start videotaping police officers when there is some sort of violent encounter, at least in the perception of the person videotaping them. And when police officers are using force, there's stress. They might perceive what you're doing as an additional threat to their safety or somebody else's.
I'm not saying, "Let's not film police officers." I'm saying that when a police officer tells you, "Stop videotaping," maybe it's a good idea for your own safety [and that of others].
You're trying to document something that you perceive as a misconduct that might not be, because frequently encounters between the police and the public that involve the use of force look horrible. But policing is about the use of force. Many [cops] don't get enough training in the use of coercive force. And at the same time... somebody's who's videotaping is usually either in close proximity to an event, close proximity to the officer who's using force. This can usually be perceived as interference. In addition to videotaping, there is often some commentary—screaming and yelling....This again elevates the level of stress that officers experience, and when you're under stress, you might do things that you usually wouldn't do. So I think that in a way, instead of defusing the situation, it escalates the situation.
I know that there are now classes that people take in how to videotape a police officer. I don't know if this is a wise thing because... it takes [time] to teach somebody something. It's a very thin line between documenting something and actually interfering with police officers.
Is there any way to teach that line or is it just too murky?
It is murky. If I'm told, "Be at a safe distance," what does this mean? Safe distance for the person videotaping? safe distance from the encounter that's happening? It's very similar, in a way, to the training that police officers receive in the use of force. You cannot really predict in training each and every situation that evolves. Similar to this, you cannot really train people how to react in each and every encounter—when to step back and when to move. [And] the person who's doing [the videotaping] is also experiencing a certain level of stress. When you're in a period of stress, you don't always act within the confines of rational behavior.
Is there comparable murkiness and risk in resisting searches, not answering questions, and things of that nature?
Legally? [They're safe] in theory. But there's a difference between theory and [practice]
There are many ways in which a police officer can claim that you've done something wrong... If you're standing on the corner and a police officer approaches you and says, "I would like to perform a stop and frisk," go ahead. Later, I will take your name and number and file a complaint if I don't have anything on me. If I have something on me, that's a problem.
There are police officers who are engaged in misconduct. I've studied police misconduct for over 20 years, so I know this. But I wouldn't say that this is something that is a matter of such frequency that it would require some blanket approach to policing as a profession that whenever any police officer asks you a question about something, then you have to resist.
In a blanket way, resisting a police officer in a democratic society, to me, is the end of democratic society. You have to have faith in your law enforcement.
You talk about filing a complaint or suing a department, but a lot of people don't have faith in or access to the resources to use that system of recourse. What do you say to them?
I still would say that it's a better idea not to resist a police officer unless it's obviously egregious.
You cannot provide for a safe and secure environment just by responding to something that's already happened. The whole idea of policing is to stop things from happening. How do you stop things from happening? By trying to identify a potential threat. And if you are among those individuals who fall within the category of potential threats and you feel that this is wrong because of your race, gender, age, or whatever, again, that is a matter for a lawsuit.
From the standpoint of simple safety, if you were to encounter somebody who is armed—not a police officer, just somebody who is armed telling you what to do—would you start resisting? You would probably do what that person is telling you to do because you'd be afraid that the person with the gun is going to hurt you. Take this scenario and superimpose it when the person who has the gun is a police officer. You don't know what kind of police officer you might be facing. It could be a 100-percent interpret-the-law police officer, or it could be a police officer who has a propensity to abuse the rights of people. Then what? Is the encounter going to go according to your scenario, or according to the officer's scenario?
Say someone follows your advice and complies with the police, but really feels wronged by the encounter, yet they have no personal resources to lawyer up. What do they do?
Most police department websites will show you how to file a complaint, and you don't need a lawyer for that. You don't even need to go to the department. But if somebody feels they need representation, there are various NGOs that can provide that.
But again, the first step is simply to file a complaint by yourself. I've taught police ethics for 15 years now. My students' assignment every semester is to look at police departments around the country and check their complaint systems. And literally every semester, more and more police departments have very forward and open systems of complaints. These are not the police departments of the 1980s or even 90s.
So if I were to summarize all of this, basically we have legal protections, but they're more post-facto rights than they are rights for use in the moment of a police encounter.
Absolutely. I cannot emphasize enough: Policing is about the use of force. It's hard to accept, but this is what we authorize them to do. If people can come up with another concept of how you can secure a community and how you can protect people, if we can create some transformationally different police training, then fine. But at this point, that's not what we have. At this point, every police training [program] in the country is about 600 hours. That's less than what a beautician has to go through. Somebody who cuts your hair has to go through about 1,000 hours. You can become a police officer without a high school diploma, or with a criminal record. How do you know who you're encountering at any given moment that you would have the courage and certainty that if you resist something good is going to happen to you? I wouldn't advocate it.
Are there any other notes of caution you'd give to people who want to flex their rights?
We're a democratic society. There are so many ways to bring these things to attention formally and informally, via departmental complaints or in larger cities many organizations providing external oversights... Things are changing. But they're not changing because of people resisting officers one-on-one. They're changing because there are formal and also legal steps being taken. It's not like there's no other venue and I have to stand up for myself.
Follow Mark Hay on Twitter.