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If the police pull you over, it is your constitutional right to refuse to answer their questions, but does it violate the Constitution if they retaliate against you for refusing to answer their questions? That is the question at the center of a case that went before the U.S. Court of Appeals for the 5th Circuit: Alexander v. City of Round Rock.

Orin Kerr, the Fred C. Stevenson Research Professor at the George Washington University Law School, took a look at the 5th Circuit’s decision for the Washington Post, and he writes that the court ruled that although retaliation against a person for refusing to answer police questions may violate the Fourth Amendment, it does not clearly violate the First Amendment, and it does not violate the Fifth Amendment.

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Kerr believes the court’s ruling on the Fifth Amendment is missing some key complications, and he wrote about why it’s a tricky issue.

According to the facts presented in the case, Lionel Alexander was pulled over by police and declined to answer their questions. In response, police retaliated by ordering him out of his car and then “pinning him face down onto the ground.” Other officers joined in, and one officer pressed a “a boot or knee on the back of Alexander’s neck as his face was pressed into the concrete.”

Alexander was then handcuffed, and an officer asked, “Are you ready to talk to me now?” to which Alexander responded with an expletive. Police then shackled his legs, and at that point he was arrested. According to the police report, Alexander was arrested for obstructing a police officer.

From the Post:

Alexander filed a civil suit against the officers and the municipality (collectively, “the officers”). The district court rejected the civil suit, and the 5th Circuit reversed in part and affirmed in part, in an opinion by Judge Edith Brown Clement joined by Judge Jerry Smith and Judge Leslie Southwick.

The 5th Circuit’s new decision makes several rulings against the officers in the case. It rules that Alexander has stated a Fourth Amendment claim for unlawful detention and arrest; that qualified immunity should not apply to those claims; and that Alexander has stated a claim for excessive force.

Alexander’s suit claimed that the officers retaliated against him for refusing to speak to them, and said that retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit disagreed and ruled that any retaliation could not violate his Fifth Amendment right, and any First Amendment claim was barred by qualified immunity.

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Kerr says that the U.S. Supreme Court has interpreted the Fifth Amendment right against self-incrimination in three different ways to do three different things “that are all justified by the same constitutional text that no person ‘shall be compelled in any criminal case to be a witness against himself.’”

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The first is a right a person can assert not to be compelled by threat of legal punishment to say something that would expose them to criminal liability. The second is a right not to have forced confessions admitted in a criminal proceeding. The third is a right to get warnings in custody and to be able to call off interrogations. They’re all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But they’re three distinct rights with three distinct histories.

Kerr disagrees with the 5th Circuit’s ruling on the Fifth Amendment in Alexander’s case because it says the Fifth Amendment applies only in custodial interrogation, which applies to the third definition of the amendment, or Miranda rights. Because Alexander’s case doesn’t include a Miranda claim, Kerr says that can’t be a strong basis for the court’s ruling.

Kerr comes to the conclusion that perhaps the idea that you have “a right to remain silent” is inaccurate, and that there are “difficult issues lurking in the court’s Fifth Amendment ruling that didn’t come out in the short passage in the opinion.”

This is an interesting case to look at, and Kerr’s analysis goes into greater detail than I can put into this post, so it’s worth a read.

This ruling is especially timely, given that our country’s attorney general is looking to give police more power while simultaneously stripping protections from everyday citizens.

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Understanding what you can and cannot do during a police stop is likely to become much more important as this administration rolls on.

Read more at the Washington Post.