The Privilege To Shut Up
One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although "oh you dumb son of a bitch will you for the love of God shut up" might capture the flavor better.
In brief, the reasons to shut up are these: cops are not looking out for your best interests. Cops are looking to make, or close, a case, which they seek to do according to their cultural preconceptions. If you answer their questions, cops' evaluation of your words will be colored by their habitual assumption that you are lying. That assumption may be premised on their culture, their simmering mood disorders, their pathological tendency to associate you (whoever you are) with the very worst people they encounter on the job, and their evaluation of evidence they may or may not have understood. If you talk to them, it is somewhere between possible and likely that you will incriminate yourself, whether or not you have done anything. If you talk to them, it is possible that some types of cops will turn around and have you charged with a crime based on the talking itself, upon a thoroughly transparent theory that you "obstructed" them. Your instinct is to talk your way out of the situation, but that is an instinct born of prior interactions with reasonable people of good faith, and inapplicable to this interaction with people (1) who have mostly unchecked power over your and (2) who are, at the most optimistic, indifferent to how the interaction will turn out for you, and (3) who are perfectly capable of lying about what you said (or getting it wrong because they didn't understand it) and having their word presumed true by the criminal justice system.
So, I say, don't talk to the cops. Ask to speak with an attorney, and get competent advice before you answer the cops' questions. Are there mundane situations in which you might rationally decide to talk to the cops — say, if a neighbor's house is burglarized, and they come to ask if you saw anything? Sure. But you should view each interaction with the cops with an extreme caution bordering on paranoia, as you would handle a dangerous wild animal. When you talk to a cop, you are talking to someone who is often privileged to kill you with complete impunity, someone whose claims about what you said during your interaction — however fantastical — will likely be accepted uncritically by the system even if the particular cop is a proven serial liar. Even the most mundane interaction carries the potential for life-altering disaster.
People ask commonly ask if this advice might lead police to suspect them of wrongdoing, or if it might even lead to their detention or arrest. Yes, it might. Life carries difficult choices and risk assessments. One of those risk assessments is whether, in an interaction with police, it is more dangerous to talk, or more dangerous to shut up. My point, in advocating shutting up, is to suggest that people's risk assessment is often misguided: distorted by the cultural message that cops are the thin blue line of heroes we should trust, colored by our misplaced faith in our ability to talk our way out of situations, and incorrectly premised on the belief that cops asking questions will react fairly or in good faith to the answers. People substantially underestimate the negative risks of interactions with law enforcement, and substantially overestimate the upside of such interactions. Moreover, people underestimate not only the amount of risk of bad consequences, but the extremity of those consequences if they occur. That's why I suggest that the risks of shutting up and asking to talk to a lawyer (which might include increased law enforcement suspicion of you, temporary detention, arrest, or even violence) are often outweighed by the downside risk of incriminating yourself or making a statement that cops will lie about or otherwise use against you.
Today I wanted to note that I recognize that my weighing of risks is colored by privilege.
"Privilege" is a term that's overused and misused in modern political discourse. Too often it's used like a crass "shut up, I win" button in an argument. But "privilege" is sometimes an apt descriptive term of a human phenomenon: a person's evaluation of a situation (like interaction with law enforcement) is colored by his or her own experiences, and those experiences are usually circumscribed by that person's cultural identity and wealth. Any criminal defense attorney who has served affluent clients is familiar with this: such clients often conclude that they are a victim of a conspiracy, or of a "rogue cop" or "loose cannon prosecutor," because their life experiences lead them to assume that the system can't possibly treat all people the way they are being treated. By contrast, clients who have lived in poverty (or clients who are African-American or Latino) tend to recognize outrageous conduct in their case as the system working the way the system typically works — business as usual. In my post about the prosecution and death of Aaron Swartz, I argued that Swartz' community showed such privilege in its reaction to his prosecution, seeing some sort of singular conspiracy where others saw the banal grinding of the system's unfeeling wheels.
My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff's Deputies searched Justin Bieber's house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren't smarter than Justin Bieber.
But Justin Bieber and I — and many of my clients — share a crucial quality: we're affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won't spend weeks or months in custody on that bogus charge because we can't scrape together a few thousand dollars. Maybe we'll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we'll get out in a few days at most, and in the meantime we won't lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won't take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won't lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won't swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.
That's a privilege. Poor people don't have it. Poor people live on the razor's edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.
When you and I weigh the downside risks of shutting up against the downside risks of talking, our downside risks are milder, and can be endured. People without our resources face a must starker choice: talk, and incriminate themselves, or shut up, and face an array of consequences they may not be equipped to survive.
I maintain my advice to shut up. But I acknowledge it's easier and safer for me — and for most of the people reading this blog — than it is for the people who most frequently encounter the police.
Last 5 posts by Ken White
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- Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is - July 1st, 2015
- No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas - June 25th, 2015
- Is "No, I Didn't Do It" Defamatory? The Bill Cosby Defamation Case - June 24th, 2015
- DoJ's Gag Order On Reason Has Been Lifted -- But The Real Story Is More Outrageous Than We Thought - June 22nd, 2015