But Officer, The Court Told Me To Ignore You

As for the handful of friends who’ve become judges and will still talk to me despite the things I write here, they react the same as anyone else when a police officer strolls up to them on the street and makes the good ol’ common law inquiry.  They know better than to play wise guy lawyer (or judge in their case), showing the cop how smart they are by asserting their “rights” and, perhaps, getting a very embarrassing, perhaps even painful, response.  Just cooperate and nobody gets their picture on the front page of the Post.

Yet the creative writing of their decisions perpetuates the myth that civilians could avoid many problems by merely ignoring the police.  One such novella bears the boring title State v. Priddy, out of the Texas 2nd District Court of Appeals (Fort Worth), as reported at Liberty and Justice For Y’all.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver’s license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed. 

This is where the court engaged in a flight of fantasy. 

So long as the citizen remains free to disregard the officer’s questions and go about his or her business, the encounter is consensual and merit no further constitutional analysis.

Got that?  You are free to disregard the officer’s questions. Free!  Free at last.  And the officer is thereupon free to smack you around a bit for being noncompliant, which in itself provides probable cause to arrest, which will happen after he teaches you a painful lesson about disregarding his questions.

“On what planet do these judges live,” you ask?  The same one as you and I.  They know that this isn’t the way life works; not your life or theirs.  They know that no one, including a judge, expects to disregard the officer with impunity.  And yet the fantasy persists.

We have a constitutional right to be left alone, “too precious to entrust to the discretion of those whose job is the detection of crime” (McDonald v United States, 335 US 451, 455).  Of course, they’ve got a funny way of showing just how precious that right is, by preserving in platitude what rarely exists in reality. 

No one, from beggar to Senator (which may not be a very broad spectrum), feels this way.  We all feel constrained to submit to the badge.  No one feels sufficiently bold to elect to ignore the officer and continue going about our business.  McDonald says we can make that choice, but no cop I’ve ever known would let that happen.  And no person I’ve ever seen believes it to be true.

Decisions like Priddy allow for judges to neatly package their decisions, applying all the precious rights in a way that comports with a constitutional adherence one would expect from a court of law, while arriving at a conclusion that makes for a great punchline, but for the fact that somebody is going to end up prosecuted, and even imprisoned, for the joke.

B.W. Barnett is quite right when he argues that there is no such thing as a consensual encounter initiated by police.  We comply because there is no reasonable person who believes that any other choice exists.  Judges don’t think otherwise.  Nobody thinks otherwise.  When the cop inquires, we respond.  Not because we want to, but because we would really prefer not to have our head bashed in or spend the night in the hoosegow.

This is one of the many legal fictions that really needs to be put to rest, one way or another.  Respect for the law demands that it not perpetuate absurdities.  The contention that we are free to disregard a cop as a matter of constitutional right is absurd, and it’s time to put this fantasy to bed.

16 thoughts on “But Officer, The Court Told Me To Ignore You

  1. Lee

    This week at Simple Justice, beginning with “Jive” and moving all the way back to “hoosegow,” Scott Greenfield takes readers aboard his magical slang time travel machine. Won’t you come along?

  2. SHG

    Didn’t your father every tell you not to look a gift horse in the mouth?  So what if the teeth are a bit long?

  3. Peter Duveen

    Scott, I fully sympathize with your stand on this issue, but up here in north country, there are folks who understand their constitutional rights, and actually exercise them. They may stop when asked by the police, they’ll ask, “Officer, am I under arrest?” and if the officer says no, they just say, “I have to be going now,” and go on their way. I remember one instance where some of these folks were protesting in front of a library where the governor was about to appear. As part of the protest, they had a pitch fork. The police asked them to move. They didn’t budge. They finally moved a little bit away from the library entrance. That was it. They were there, pitch fork and all, when Gov. Paterson showed up, and remained there through his appearance. If people are well educated about their rights, understand the realities, etc., I believe there is a place for citizens understanding their rights, and exercising them, although I sympathise with the very real possibility that one could have his or her head cracked open, or even be shot to death on a subway platform in spread eagle position. It seems to me one’s response has much to do with proper education, and proper demeanor.

  4. SHG

    It’s wonderful that people know, and feel able, to exercise their rights.  Even so, when the officer speaks to them per your comment, they don’t keep walking and ignore the police.  It’s good that they know to ask whether they are under arrest, but there are also “rights” between the initiation of the encounter and that moment.  Do they feel sufficiently empowered to disregard the cops?

  5. John

    QUOTE “”Officer, am I under arrest?” and if the officer says no, they just say, “I have to be going now,” and go on their way.”

    And then there’s no obstruction of justice, or interference in an investigation???

    And what about holding someone for 24hrs? This isn’t valid anymore?

    No matter what seems like the cops can screw you over if they want to.

  6. JKB

    Interesting. Ms Priddy is attributed mind reading powers by the court. For otherwise, how could someone know the officer did not have reasonable suspicion? I suppose she could have had held up a sign, “Hello officer. Am I being detained or am I free to go” before rolling down the window. This would not permit her analyze his “reasonable suspicion” but it would indicate she was required to interact with him.

    I wonder how many tazer shots you’d get for even possessing such a sign?

  7. JKB

    I just popped over to Althouse, who has a post on the recent SCOTUS decision in Berghuis v. Thompkins. Seems you must verbally invoke your right to remain silent. Remaining silent does not mean you intend to invoke your right.

    You must talk to the police to tell them you don’t wish to talk to them and you are free to go as long as you don’t roll down your window or until you get the first whack in the head from the police for trying to leave without talking to them.

    Maybe the police are just desperate and lonely for someone to talk to?

  8. SHG

    That decision just came down and is on the docket for tomorrow.  While it does seem to make for a funny corollary to this post, it’s really a very different situation as Miranda only comes into play in a custodial interrogation.

  9. Windypundit

    This sounds like one of those tipping point things. In communities where lots of people assert their rights, the cops are used to it and don’t overreact. Elsewhere, you just come across as “uppity” and you need to be shown who’s boss.

  10. SHG

    I imagine in more rural upstate communities, there are only a handful of local cops and they are part of a small community, so that these are their friends, neighbors, family they are dealing with.  It’s a lot harder to behave like a violent jerk when everybody knows you and half the town changed your diaper.

  11. Stephen

    Verbally asserting your right to remain silent has got to be up there with “if you try to fail and succeed what have you done?”

  12. Lee

    This decision doesn’t seem as terrible to me as people are making it out to be. If youbwant questioning to cease, you can state “I am invoking my right to remain silent and I want a lawyer.” Or, as always, you can remain silent and keep on remaining silent as the police continue to try to elicit responses. However, if you don’t CONTINUE to remain silent and haven’t stated that you are invoking this right and later cease exercising the right and begin to answer question you won’t be deemed to have invoked based on your previous silence. That’s pretty much already the state of these here in California.

  13. SHG

    So you’re saying that California should be the bar for the rest of us?  Shoot me now.

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