How to Flex Your Rights During Police Encounters

The town of Homer, Louisiana is embroiled in a racially-charged controversy after a white police officer shot and killed an elderly African-American man in front of his family and friends. Witnesses say police planted a gun on the victim after shooting him and federal investigators are now working overtime to sort the whole thing out.

Of course, questionable police shootings and allegations of severe misconduct are tragically common and it will be interesting to see what the investigation uncovers. What really shook me up about the story was a quote from Homer Police Chief Russell Mills, who was asked about his department's treatment of minorities:

"People here are afraid of the police," said Terry Willis, vice president of the Homer branch of the National Assn. for the Advancement of Colored People. "They harass black people, they stop people for no reason and rough them up without charging them with anything."
That is how it should be, responded Homer Police Chief Russell Mills, who noted the high rates of gun and drug arrests in the neighborhood.

"If I see three or four young black men walking down the street, I have to stop them and check their names," said Mills, who is white. "I want them to be afraid every time they see the police that they might get arrested." [Los Angeles Times]

Arrested for what? Being black? A professional police department should not be a source of intimidation for citizens who've done nothing wrong. It's just an appallingly racist and inappropriate remark coming from the chief of police in a town plagued by racial tension. Chief Mills's mentality pretty much tells you everything you need to know about how things got this bad.

Skeptics in the debate over racial profiling will often begin by telling you that police never use racial profiling, then conclude by implying that black people are all criminals who must be stopped and searched at every opportunity. It's an absurd contradiction. As long as I can still find police chiefs publicly boasting of racial bias in the newspaper, I fail to understand how anyone could claim racial profiling isn’t a serious problem.

If you feel that your rights have been violated by police, or you've witnessed misconduct against someone else, do not panic. It's normal to be intimidated, but responding to misconduct is an essential step towards protecting yourself and your community from future police abuse.

There are several steps to the process of combating police misconduct, and you must approach them in a calm and organized manner.

Step 1: Write everything down
This step is extremely important and must be completed as soon as possible following the incident. It’s easy to forget small details over time, and there’s no way to know which facts will make a difference later on.

In your own words describe everything that took place from the very beginning of the police encounter to the end. When quoting yourself or the officer try to use exact words. Be specific about the location, time of day, etc. Replay the events slowly in your head to help remember as many details as possible.

Also include witness’s names and contact information and the officers’ names, physical descriptions, and badge numbers. If necessary, be prepared to return to the scene of the incident in search of possible witnesses. Doing so may also help jog your memory about other important details.

Include only the facts that you're sure about and be very careful to avoid any inaccuracies because these can damage your credibility and undermine the entire report.

Step 2: Consult with an attorney
This step is essential if you were arrested following the incident. It is optional, but recommended, if you were not arrested.

Entrapment is a legal defense -- like insanity or self-defense -- in which the defendant argues that police caused him/her to commit the crime. In other words, entrapment claims the police conceived the idea for the crime and provided the means, motive and or opportunity for the defendant to do the criminal act.

A famous entrapment case involved John DeLorean, the designer of the eponymous silver sports car featured in the Back to the Future Movies. At the time, DeLorean's car company was in deep financial trouble. Seizing upon this knowledge, FBI agents approached DeLorean, who had no prior criminal record. They convinced him to distribute cocaine promising that the profits would be enough to save the company.

After DeLorean's lawyers raised the entrapment defense, he was found not guilty of illegal drug trafficking.

For laypeople, the concept of entrapment is a common source of confusion. For example, a drug defendant caught in a "buy and bust" sting involving undercover officers could not successfully use the entrapment defense in court. Such a defendant could not credibly claim that he'd otherwise be unable or unwilling to buy drugs elsewhere.

Unfortunately police sometimes search you even if you refuse consent. If they find anything illegal and you're arrested, you’ll have to get a lawyer and fight it out in court.

If the officer convinces the judge that there was probable cause to search without your consent, then the evidence will be admissible in court. If your lawyer convinces the judge that there was no probable cause, then the evidence will be thrown out and your charges will be dismissed.

Every case is unique, so it’s hard for us to tell you how good your chances are in your particular case. Your attorney should be able to tell you what to expect from the judges in your area.

If you're searched illegally and nothing is found, you may consider taking legal action or at least filing a complaint. Local attorneys, as well as your local ACLU and NAACP chapters may be able to help you.

(See "How to Deal with Police Misconduct")

Videotaping or photographing police in public places is usually legal, so long as you don’t interfere their ability to do their job. Nonetheless, police generally don't like being watched or documented and will often respond aggressively. 

Citizens are frequently arrested for videotaping police, and the charges are later dropped. Regardless, video is uniquely effective in revealing guilt and exonerating the innocent -- for both police and citizens. See examples of this here, here, here, and here.

If you're videotaping or photographing police, make sure you don’t interfere. If you're arrested, “obstruction” is the most likely charge, and you’ll want to be able to defend against it.

If you acquire video or photographic evidence of police misconduct, create and secure copies of the evidence. Then forward copies to local police monitoring groups such as civilian review boards, and local ACLU, NLG, and NAACP chapters. You should also obtain legal representation for yourself in case the police department retaliates against you.