Wednesday, April 28, 2010

Your Money or Your Life

David is a self-described narcissist.  Maybe that's enough basis to ignore his story.  But he's a third year law student who seems to want to become a criminal defense lawyer, so maybe it's more complicated than that.
And then there are the people who respond to the tale.  He's either a hero/role model or an world-class asshole.  (Possibly both, but the commentariat seems to be split, choosing one or the other rather than seeing him as wearing a skin-tight jump suit with a cape, a mask, and a scarlet A for Asshole on his chest.)
And he's gotten more than his share of attention for the story.  Orin Kerr linked to it at The Volokh Conspiracy.  Elie Mystal at Above the Law quoted it extensively (and with gushing praise as a model of how lawyers ought to behave.  Scott Greenfield at Simple Justice suggests that as advice, it's downright dangerous.  And Mike Cernovich at Crime & Federalism uses it as an excuse to tell a story that gives a useful counter-lesson.
Ah, you are perhaps, by now, wondering what the hell it is of which I speak.
Seems David got pulled over by a cop in Michigan.  He had not, he is careful to assure us, violated the law (tinted side windows) for which he was pulled over because there's a statutory exception for cars lawfully registered elsewhere, as his was.  Thus, armed with righteousness and a working knowledge of legal theory as set forth in law school classes, David stood his ground.
APO: Good afternoon
ME: [silent]
APO: Good afternoon sir
ME: [silent]
APO: GOOD AFTERNOON SIR [raising voice]
ME: [silent]
APO: Do you know why I pulled you over?
ME: No
APO: I pulled you over because you have window tint on your front side windows
ME: [Silent]
APO: You ever been pulled over for this before?
ME: No, my car is registered in Colorado.
APO: In Michigan you are not allowed to have window tint on your front side windows.
ME: Officer, I am not trying to argue with you, but I am very familiar with the statute relating to window tint in Michigan and I know that the statute specifically exempts vehicles that are not registered in Michigan.
It's a variation on what David did earlier in the week when he was pulled over.
Officer: "Where you coming from?"
Me: . . . . [Silence}
Officer: "So where you coming from?"
Me: [Silence]
Officer: "Why don't you give me your license and registration?"
Officer: "So where you coming from?"
Me: [handing officer paperwork, still silent]
Officer: "So where you coming from?"
Me: "School" [and I start to give in]
Officer: "You have a school ID?"
Me: [silent]
Officer: "You have a school ID?"
Me: [silent] ". . . Yes."
Officer: "Can you show me your school ID?"
Me: "What do you need that for?"
Officer: "Can I see your school ID"
Me: [hand it to him]
Officer: "You been the only one in this car tonight?
Me: [silent]
Officer: "You been the only person in this car tonight?
Me: "Its my car
Officer: "Have you been the only person in this car tonight?
Me: "Yes"
See, David understands two things.  First, he does not have a legal obligation to converse with the cops.  Second, if he has not violated the law, then any officer who thinks he has is (a) a fool and (b) acting illegally.  The first is true. You don't have to chat with the cops, and for the most part it's spectacularly good advice not to.  The second is somewhere between wrong and really really really wrong.
There is real virtue in standing up for your rights.  It's important - especially for a criminal defense lawyer, but for everyone - to learn that sometimes you shouldn't cooperate with the cops just because they'd like you to.  May I come in your house?  Not without a warrant.  Will you come down to the station and talk with us?  Not without a lawyer.  Would you like to tell me your side?  Not without a lawyer.  Do you still beat your wife?  Huh?
But you know, it's also important to know which battles to fight and which ones not to fight.
It was 1966 or 67 in Pittsburgh.  Cops armed with an out of date warrant raided a regular Friday night gathering of peace and civil rights activists.  They searched everyone.  The searches were, at least arguably, illegal.  Some folks complained about it but were told to shut up.  The cops called one, a student of South Asian descent, now a professor at Columbia University and one of the world's most distinguished scholars of African history and politics, a "gook" and told him (this was during the Vietnam War, remember) to go back where he came from.  Ultimately, they arrested 54 people.  One of them escaped before booking (honest) and called the ACLU which defended the 53 (the escapee was never caught and, therefore, didn't need defending).  The charges were ultimately dismissed.
But lessons were learned.  None more important for what was mostly a bunch of self-righteous, over-protected and moving toward over-educated narcissistic baby-boomer students who knew their rights (sort of) and knew the cops were tools of oppression (for sure) and knew . . . well, they just knew better.
The lesson was stark and simple.  One of the ACLU lawyers told the 53 of them: Don't argue your rights with a man who's wearing a gun.
David has twice (at least), come damn close to violating that rule.  I'm not licensed in Michigan, not in most of the places where this might get read, so I can't give legal advice to David or the rest of my readers.  And frankly, this isn't legal advice anyway.  It's more like paternal advice.  
Don't be an asshole.  Some battles aren't worth fighting.  One of the tricks to representing your clients effectively is knowing what's appropriate to argue about and what isn't.  There are times to stand up, times to fight tooth and nail, to assert every right and rule and principle.  And there are times to say, "That one doesn't matter here.  All it will do is piss off the judge or the prosecutor or the cop; it doesn't preserve anything, doesn't accomplish anything."  You don't get extra points for being right.  You lose points for being obnoxious about it.
But David, and I say this with all due respect because we were all young and stupid once, when the cop says, "Good afternoon," it's both polite and wise to respond "Good afternoon, officer."  You don't have to.  The only offense for not doing it is Contempt of Cop.  You won't find it in the Motor Vehicle Code or the Penal Code, so that won't be the charge.  But it will happen.  And it will likely be accompanied by a whole lot of bruises, maybe some broken bones, maybe permanent injury.  And felony charges.  
But gee, you'll have been right.


  1. Which battles are worth fighting? I would also like to know. As a brown skinned person from Afghanistan living in this country who really thinks she is just lucky that she hasn't been arrested yet, when do you fight? Yes, we can fight in court, but when else?

    The lesson here is cops can't be trusted so we must give in? Is that really it?

  2. I wish I had all the answers. I don't. But you do learn. The examples at the extremes are the easy ones.

    You don't give up an objection just because the judge will probably rule against you. (I can't tell you how often I see, in transcripts, "Overruled. "Then I'll withdraw the objection." Why, for godssake? Because you want to be sure to waive any possible appellate issue for your client?) When the cop asks for permission to search, the correct answer is pretty much always "No. Come back with a warrant."

    You agree to extensions of time that won't prejudice your client because (a) there's a quid pro quo in that when you'll want one, and (b) there's much to be said for being cooperative on the stuff that doesn't matter. You don't piss of the cop (which is where this started) or opposing counsel or the judge merely because you happen to have a legal right to fuss about something.

    Cernovich's story makes the point (though it makes it at the price of consenting to a search that makes me damned uncomfortable). The cop was an idiot or a bastard or both. Norm could have argued with him, maybe gotten knocked around or tased or arrested (or all of the above), surely would have been detained for a while. Or he could have sighed and said, "Sure," and gone about his business. Which is basically what he did (while allowing that search - ouch). I don't know that I'd have done that.

    Was Henry Louis Gates right? Legally, without question. Might things have gone even worse for him than they did? Yeah. Was it worth getting arrested over? That's for him to say, but the fact that he was Henry Louis Gates made a big difference in what happened to him after the arrest. (For one thing, he got released in a hurry. For another, he got that beer with the President.)

    The close cases? We hope to learn from the simple experience of living. I don't fight with everyone who looks crooked at me or pisses me off. The incompetent waiter may get a smaller tip, but not a tongue lashing, and when the bartender brought me bourbon rather than scotch I was polite about asking that it be fixed (the correct drink came a lot faster that if I'd been surly, I think).

    The lawyers who berate court staff for being inefficient generally suffer for it. And the staff don't get any more efficient.

    Being right, as I say, isn't a good justification for being a jackass.

    My experience teaches me that I don't argue with the cop who pulls me over. I don't admit wrongdoing, but I'm polite and cooperative. It's not a question of rolling over or standing on principle. Saying "Good afternoon" to the cop isn't a legal requirement, but what profit is there in starting off the encounter by being a wise-ass?

    Ultimately, it's about risk management - which is, in a sense, what we do for a living. Telling off the cop won't educate the cop, won't make him or her a better officer. It might provide some satisfaction, but at a price. The question is, always, "Is the price worth it?" Sometimes yes, sometimes no. But the cost/benefit analysis is necessarily personal. And, alas, it has to be made often in split second without much information about the particular cop's likely response.

    Wish I had a better, clearer, more cetain set of answers. And I have the benefit, I should add, of being a grey-haired (what's left of it) white male. Which cuts me some slack.

  3. Being deliberately unresponsive to a polite greeting is not conducive to a mutually pleasant exchange of information. Likewise any refusal to speak when asked a question is irritating. Tell the police that you refuse to answer or refuse to comment. Ask if you are free to leave.

    A very long time ago I learned a valuable lesson from someone I knew to be violent. A motorcycle outlaw, a notorious, violent brawler explained that showing a little respect didn't cost me a thing, but it tended to pay off. He then related one of many incidents when he and a few brothers in arms were pulled over by two State police. Four motorcyclists versus two police, so the odds are two to one. Then, as they sat on the shoulder of the highway, the rest of the club showed up - about 75 or more. The club pulled over to see what was what.

    So my adviser explained to me, "I kept right on calling him [the officer] Sir. Yes sir, no sir, thank you sir. Because I'll tell you what, those two were out fuckin' numbered a hundred to one and they knew it, and they knew that if shit came to sweat neither one of them would walk away from this one in one piece. But we were all polite, and the thing is, see, in a situation like that any cop is going to really appreciate someone who calls him Sir. I mean, it don't cost nothin' so what the fuck?"

    He's right. Moreover, if the police are trying to goad you into losing your temper, nothing is going to piss them off more than remaining calm and polite. Just think how it will look on tape.

  4. Starry-eyed idealism as this may be, I'd say that the close cases are the ones that need to be fought the most. Yesterday we were bemoaning the loss of the Fourth, today we're saying we should let the cops do what they want because they might rough us up? I'm not advocating dick behavior to cops, most of the ones I know are nice folks, but when they're pushing the borders is when they need to be pushed back. That's how erosion is stopped. They all need to know that every encounter with them in their professional capacity is unwelcome and should be limited to the minimum necessary to resolve the issue.

    That said, this David character sounds like a self-important idiot. The kind of dude that brags about his defeat of patrol cops on the internet is the kind of guy who impresses (or attempts to impress) women with his knowledge of Norse mythology.

  5. I'm talking about a cost/benefit analysis. Acting like a dick has no benefit except to satisfy narcissism and it comes at significant cost.
    But values obviously are part of what goes into how you make that analysis, how it comes out in any individual case.


  6. I agree he should have said "Good afternoon." Beyond that, IMO exactly the right response.

    The questions facing a lawyer representing a client are quite different from those facing a civilian confronted with such questioning in their car or out on the street.

    You don't argue your rights with the guy with the gun, you assert them through your actions. E.g., you tell them you're not going to answer any of their questions beyond giving license, proof of insurance, etc., and ask if you're free to leave. Repeat as necessary. It'll come off a little rude, even if you say it politely, but it's the only practical way on the street to not answer such "where are you coming from" questions.

    I had an incident a couple of years ago when I was stopped and questioned and it quickly became clear someone called 911 (falsely) suspecting me of some sex crime. I refused to answer questions, and repeatedly asked if I was free to go. It caused a lot of consternation for the cop, and the other cops who eventually came, but I eventually walked away and in the context think I was right to not answer questions because they were designed to potentially accuse me of a very serious offense. When a cops asks those questions, there's only one reason - to attempt to find cause to accuse you of a crime. IMO it's not ever in the driver's interest to cooperate in that effort, even if you think you "have nothing to hide."

  7. There's a difference between being polite but assertive and being a dick.

    Arguing about the law with the cop, then staring at the cop and refusing to say anything is being a dick. (And the refusing to say anything won't even cut it as a Miranda invocation these days, although David probably wasn't legally in custody and his story predates Berguis v. Thompkins.)

    Of course, context, as well as tone, manner and demeanor (of both the stopped person and the cop) can also make a difference. So, alas, do race, age, gender, and attire (though those things are also all part of context).

  8. I agree there's no need to be rude, however sometimes the cops are rude the truth is if you refuse to play their little power games in those encounters, they'll frequently turn pretty hostile, even if you're as polite as though you're speaking with your grandmother.

    I can think of four things worth saying to a cop at a traffic/pedestrian stop. "Good morning/afternoon, officer" or some other salutation, "I don't mean to be rude but I'm not going to answer any of your questions today," "Here's my license and insurance information" (if applicable), and "Am I free to go?" In some instances I'd add a fifth acceptable comment, "No I will not consent to a search!" Thereafter, repeat as necessary the phrase, "I'm not going to answer any of your questions, am I free to go?" until they finally arrest or (more likely) release you.

    BTW, most people, including attorneys, don't know how to react at traffic stops or other police encounters, while police are trained in methods of manipulating people in those situations. When I was Police Accountability Project Director at ACLUTX, when I'd do public speaking it didn't matter what I was invited to speak on, when Q&A came all anyone wanted to know about is "how do I keep from being bullied by police at traffic and pedestrian stops?" "What do I say when they ask "X"? There's a real dearth of practical advice on the subject and the very best thing I've seen was the Know Your Rights group's Busted! video.