Consensual Doesn’t Mean What You Think It Does

Proving the old adage about a blind squirrel, Justin Peters at the Slate Crime Blog stumbles onto an interesting article from Florida Coastal Law Review (I know, but apparently they do have one) testing the rubric of the consensual police encounter.

The U.S. Supreme Court has ruled that police officers can briefly detain and search a person if they have a reasonable, articulable suspicion that he or she is committing, has committed, or is about to commit a crime. But cops need no such reasonable, articulable suspicions to engage people in consensual encounters: interactions that a reasonable person would feel free to decline or terminate at any time. Ordinary people are free to stop and talk to strangers, the thinking goes. Why should police officers be denied the same privilege?

Of course, the Court’s vision of Officer Friendly tipping the old hat and saying “top o’ the morning, Mrs. O’Malley” as he walks his beat may differ from what ordinarily happens on the street, but the point is clear. It’s not unconstitutional for a cop to speak to someone without cause, and Supreme Court justices don’t see why people who aren’t in the mood can’t simply tell them to get lost and walk away.  Because, you know, cops would never behave inappropriately in that situation and, say, bust your skull open before arresting you for assaulting their boot with your face.  But I digress.

So three lawprofs used their scholar-fu to come up with a scheme to test whether encounters between the public and cops were, in fact consensual.

Authors Alisa L. Smith, Erik Dolgoff, and Dana Stewart Speer engineered unexpected encounters between 83 undergraduate students at a “medium-sized, southern private university” and various campus security officers, who were instructed to approach the students and request a conversation in which they would ask for the students’ names, identification, and reasons for being on campus. The security officers did not openly state that the conversation was voluntary. But Smith and her co-authors note that if “at any point during the encounter a participant ignored, walked away from, or raised questions about the encounter, security was instructed to do nothing or advise the passersby that they were under no obligation to comply.”

How did that work out?

Security never got the chance. Every single student in the study complied with the officers and answered all their questions. None of them offered any resistance.

Much as it would make for a great argument that this proves there is no such thing as a consensual encounter, and that submission to the shield dictates compliance for fear of retaliation, it just ain’t so.

There is little about this experiment that resembles police encounters in real life. First, it involves college students, who have no particular reason not to be compliant with their own public safety officers. The college already knows everything about them, and there is nothing asked that reveals anything new or suspicious. Indeed, they’ve got friggin’ college ID’s. There are no secrets here.

While it’s unlikely that the students anticipate their college security officers will start breaking heads if a student refuses to explain himself, they similarly expect their security officers to safeguard their charges living in the fishbowl of a college. In the scheme of protection, they are the insiders, much as billionaires rarely have the same fear of shabby treatment by law enforcement as poor male Hispanic teenagers.

But the concept of the experiment, had it been better formulated and if it could be effectively pulled off, is a good one. The fiction underlying so many of the constitutional rules of police encounters ignores that few of us are willing to risk a good beating, if not arrest, for being noncompliant with police “requests.” Cops know this and use it. More importantly, they know that it’s easy-peasy to bootstrap noncompliance with a “request” into a quick trip to the hoosegow, if not the hospital.

Of course, this doesn’t exactly comport with the experiences of most supreme court justices, which is why they don’t tend to see custodial interrogations and baseless stops the same way others do. The question thus becomes whether the reality of “consensual encounters” that form the basis of so many rules of law can be empirically tested so that we can put an end to this fiction. It doesn’t seem possible, frankly, as any cop cooperating in the study would, by virtue of his involvement, be far more Officer Friendly than threatening.

It’s also unlikely that any real police force would be inclined to offer up its officers to a study that would undermine one of the most effective tools of law enforcement: fear. Without fear of police retaliation for noncompliance, not to mention contempt of cop, the only person who would consensually talk to them is the gal at the donut store counter.

But the idea behind the Smith study is one that merits greater attention, and perhaps wiser minds than mine can come up with a way to make it work and produce empirically valid results. Anything that would contribute to the end of the fiction of the consensual encounter is worth pursuing.  If only it can be accomplished in a way that would produce results that would impress the Court and make clear to folks in robes that when a cop “requests” that you empty your pockets and drop to the ground with your face pressed to the pavement by his boot, you really aren’t doing it to be friendly.

8 comments on “Consensual Doesn’t Mean What You Think It Does

  1. REvers

    They’re known as “voluntary contacts” in my neck of the woods, which of course makes it sound like Joe Citizen approached the cop and asked to be searched. The local judges just eat it up, even when you can get a young cop to actually admit it was only voluntary as to him, not Joe.

    1. SHG Post author

      As you know, the joke is that the person could walk away at any time, except that if the person refuses to comply with the cop’s requests, the cop then has cause to bang heads since you’re fleeing his kindly, consensual encounter.

      1. REvers

        Well, we call that Interfering With Official Process. That, of course, leads to an arrest and grope incident to same.

        I could tell you stories….

  2. Mark Draughn

    However flawed this experiment is, having campus cops stop college students is still more realistic than the Supreme Court’s approach, which basically involves a bunch of judges sitting around, trying real hard to imagine how ordinary people would feel.

    Besides, I’m pretty sure that if they tried to make this experiment more like real-life police encounters, it would fail the ethics guidelines for research on humans.

    1. SHG Post author

      That’s true, they would never get permission to conduct a well-formulated experiment on humans. The risks would be enormous.

  3. Hayden

    It would be interesting to repeat the experiement with a control group. Approach a similar number of college students at the same location using another student (rather than an authority figure) who attempts to elict the same information. I am pretty sure a good portion of them would find the questioning creepy and would probably call campus security!

    1. SHG Post author

      Funny how what’s creepy from someone who isn’t a cop isn’t supposed to be creepy when it’s from someone who is.

      1. CCCC

        Or even worse when predators are able to take advantage of the culture of consent today’s law enforcement has created among members of the general public,

Comments are closed.