In recent months we’ve witnessed the arrests and deaths of citizens after disturbing interactions with police. In one of those cases, a bystander captured on video an incident during which Eric Garner died after being put in a choke hold on a sidewalk in New York City’s Staten Island.
And just last weekend Danièle Watts, a Hollywood actress, claims she was briefly detained when she refused to show an officer her identification. Each case raises critical questions about citizens’ rights when dealing with officers.
The Root asked Reggie Shuford, executive director of the American Civil Liberties Union of Pennsylvania, to discuss citizens’ rights when dealing with police. Before leading the Pennsylvania office, Shuford was the ACLU’s chief litigator in challenges to racial profiling, leading national litigation efforts and consulting with ACLU state affiliates and others in cases of “driving while black or brown,” airport profiling and profiling related to the war on terror.
The Root: Is it OK to record, or film, police officers? If so, are there legal ramifications?
Reggie Shuford: Yes, under the First Amendment, it is OK to videotape—and audiotape—police officers performing official duties in public.
This is an important right. Cellphone footage, like that of the Eric Garner incident, for example, shows just how important the right to record the police really is. When the ACLU represents people who were illegally arrested for recording the police, we’re not only trying to vindicate their rights; we’re trying to safeguard a vital tool for holding the police accountable.
In terms of legal ramifications, police officers may not generally confiscate or demand to view your video without a warrant, and they should not, under any circumstances, ask you to delete your photos or video. While you have a right to record the police, police officers can order citizens to cease activities that are truly interfering with their work. Generally, courts defer to an officer’s judgment about what “interfering” means, so if an officer orders you to step back, you should do it.
Although citizens have a constitutional right to videotape police officers performing official duties in public, not all police officers honor that right. In Pennsylvania, for example, the ACLU has had to sue the Philadelphia Police Department five times in recent months to reinforce this right.
TR: In August, Ferguson, Mo., police Officer Darren Wilson shot Michael Brown in a confrontation that began when the officer reportedly asked him and a friend to walk on the sidewalk instead of in the street. The incident ended in the shooting that ignited a firestorm of controversy, including weeks of fiery protests over excessive force and police brutality. Given this scenario, can citizens refuse to heed an officer’s command when they haven’t committed a crime and, well, walk away alive?
RS: My advice is to heed the officer’s command, even if someone has not committed a crime. It’s just not worth the risk. It is always best to remain polite and calm, and certainly never to physically resist a police officer.
Always ask the police officer if you can go. If the officer says yes, you have the right to remain silent or leave. If the officer says no, it means you are being detained for questioning. In this instance, you should say, “I am going to remain silent,” and request a lawyer.
Just because you have rights in your interactions with the police and choose to exercise them does not mean that the agents or police will follow the law and respect those rights. That’s why it’s advisable to remain calm, polite and cooperative, even when you know they are wrong. Challenging police misconduct should not be done on the street. It is better to do it in court afterwards. If you believe the police have violated your rights, call your local ACLU affiliate as soon as you can.
TR: Again in the case of Garner, a cellphone video recording shows him asking officers to leave him alone. Later, he ends up on the ground surrounded by officers and placed in a choke hold by one of them. Do people have the right to ask officers to leave them alone? If so, in what case and what are the steps?
RS: It is best to cooperate, even if the person has done nothing wrong. The person should ask if he is free to go. If the officer says yes, the person should remain silent or leave. If the officer says no, the person may exercise his right to remain silent and ask for a lawyer immediately.
TR: It has been reported that police suspected Garner of committing a crime, reportedly of selling loosies, or untaxed cigarettes. He denied any wrongdoing and pleaded with officers to leave him alone, according to the cellphone video. What are your rights if you’re suspected of wrongdoing?
RS: If you are being detained because the officer believes you are guilty of committing a crime, you generally are not free to go. But you should ask anyway. If the police officer says you are not free to go, you should say, “I am going to remain silent.” Also ask to speak to a lawyer. You have a right not to answer any questions the officer may ask.
Be polite and remain calm. Never lie to a police officer or immigration agent. Never physically resist.
TR: Twice in recent months we have seen citizens refuse to show officers identification when approached on the street. In one case, Danièle Watts says she was showing affection to her white boyfriend when an officer accused her of being a prostitute. She refused to show her identification to officers.
In another example, Ersula Ore, an English professor at Arizona State University, sparked national controversy earlier this year after a video went viral showing her being manhandled by ASU police in Tempe for jaywalking. Ore, who was charged with assault, pleaded guilty to resisting arrest and was sentenced to nine months’ probation. She and her lawyer maintain that her rights were violated. Can citizens refuse to show their identification to officers? If so, what are the steps?
RS: Whether one is required to show identification is a function of the law of the state where the person resides. For example, in Pennsylvania, where I live, you do not have to give the police information such as your name, address, ID or immigration status. If you decide not to, you should know that you may be detained longer while police attempt to identify you. Therefore, if you are lawfully present in the United States, you may wish to show your ID or provide your name to make the situation go more quickly. However, if you are undocumented, showing your ID or providing your name may result in your imprisonment by immigration authorities.
For more Know Your Rights material, go to the American Civil Liberties Union of Pennsylvania website.
Lynette Holloway is a contributing editor at The Root. The New York-based writer is a former New York Times reporter and associate editor for Ebony magazine.