In this nation's Hundred Years' War against some drugs, the collateral damage has included the millions of American citizens and residents who have suffered arrest at the hands of law enforcement agents enforcing the drug laws. The United States Constitution offers protections to citizens that could prevent that encounter with police from turning into an arrest, but, sadly, too many Americans have no idea of how to effectively use their hard-won rights to protect them from overzealous policing. Below, DRCNet interviews Steven Silverman, the head of a newly formed group, Flex Your Rights (www.FlexYourRights.org), designed to teach Americans how to protect themselves by flexing their constitutional rights.
DRCNet: What is Flex Your Rights and what does it hope to accomplish?
Steven Silverman: Flex Your Rights is a nonprofit educational organization. Our mission is to train individuals to protect their civil liberties, specifically during police encounters. We use creative, interactive teaching methods, a hands-on, real world understanding of how the Bill of Rights applies to real life police encounters. We want to help people understand their constitutional rights. This project has become more urgent as those rights have been eroded over the decades. Decisions by the Supreme Court have expanded the scope of police powers, particularly search and seizure, for the purpose of fighting illegal drugs. This "drug exception" to the Constitution has included various tactics, including, notably racial profiling, where drivers are targeted on the basis of their race and searched for contraband. It is important that we recognize that part of the problem is many civil rights violations by police officers occur because people naively waive the rights they still have. Part of the solution is to train people how to assert their remaining constitutional rights. Those are still our best protection during encounters with the police.
We believe no one should have to undergo the humiliation, inconvenience and embarrassment of an illegal search. Interestingly enough, there were about 19.3 million traffic stops in 1999. Most encounters that people have with law officers are traffic stops. Police conducted 1.3 million searches of motorists that year, according to the Bureau of Justice Statistics, and about 90% of those searches resulted in no evidence of a crime. Most people who are searched are not guilty of anything. They should never have consented to a search.
DRCNet: If someone is not doing anything illegal, why shouldn't they let the police search them?
Silverman: Because you don't have to. People assume that if they deny a police request to search them, that is somehow an admission of guilt and that it will get them into more trouble than its worth. But you should remember that the only reason an officer is asking your permission to search you or your vehicle is that he doesn't yet have any legal reason to do so without your consent. By consenting to an unwarranted search, you are giving up one of the most important constitutional rights you have: the Fourth Amendment right to be free of unreasonable searches and seizures.
DRCNet: What are the most important things people need to know about how to behave during a police encounter?
Silverman: This is common sense stuff. First, avoid doing illegal things. Keep your car in legal working order, make sure your registration is up-to-date, your tail lights are working, things like that. Obey the speed limit. The police usually pull someone over for an alleged traffic violation, and they will use any pretext to stop you. Also, you should keep your private items out of view. Police do not need a search warrant to confiscate any illegal items that are within plain view and arrest their owners.
If you do get pulled over, turn off the car, turn on the dome light and keep your hands in view. Officers want to see your hands for their own safety. Be courteous. The first thing you should say is, "Good evening officer. Can you tell me why I am being pulled over?" Take the initiative here: You want to be the one asking questions. Show your license and registration if requested and step out of the car if ordered to do so. Above all, remain calm and quiet. If you get a ticket, just accept it quietly. That's what traffic stops are supposed to be about.
There are signals to look for to indicate whether the encounter is moving beyond a mere traffic stop. Any question not related to the traffic offense should be considered a red flag. The officer may ask you inappropriate questions about where you've been or where you're going. This can make you uncomfortable, but this is when you need to be ready to assert your rights. You want to respond to such improper questions with your own question. The most important question to ask is, "Officer, I have to be on my way. Am I free to go?" If he says anything but no, then assume you are free to go, but repeat the question anyway and prepare to leave -- driving away safely.
If he says "no," you still have options. Ask, "Officer, why am I not free to go?" If the officer says you are not free to go, you have now moved to a new level of police encounter. You are being detained. Do not answer any questions unless your attorney is sitting in the passenger seat, but continue to be courteous. Now the officer will try to search you, and when he asks for your permission, it is typically not done politely, but comes garbed in tones of command. It may seem like a command, but it is not -- it is a request. Do not consent to a request for a search. You have nothing to lose by not consenting, and anything found as a result of search to which you consented will be admissible as evidence. Because you consented, the search will be deemed legal.
If you are arrested, you still have options. Continue to remain calm and keep your mouth shut. Assert your Fifth Amendment right against self-incrimination. Anything you say can and most likely will be used against you later in court. I've talked to so many people who have said innocuous seeming thing talking to police officers, who in turn stretched and took out of context their remarks and used them against them in ways the person would never have imagined could be done. Never physically resist, but if you are being arrested, continue to assert your rights. Refuse to consent to any searches. Say nothing. You have nothing to lose by asserting your rights and much to gain. The ultimate goal is for people to drive away safely from a police encounter without being arrested or having their civil rights violated. Don't be a statistic.
DRCNet: How does Flex Your Rights differ from existing programs at the ACLU, for instance, that attempt to educate citizens about their rights?
Silverman: Those cards from the ACLU and NORML, for instance, are great. They were part of my inspiration for Flex Your Rights. We seek to take those "bust cards" and bring the information to life. It's difficult to recreate the confusion and anxiety that occurs during a real police encounter on the back of a business card. That is what we attempt to recreate with our training sessions and our video project, "Busted," which is now in the works.
DRCNet: What is one of your presentations like?
Silverman: I come in, dressed in a blazer and give the lecture about protecting your rights and how most people fail to assert their constitutional rights, and I tell them that's one reason so many are getting arrested for nonviolent drug offenses. Then I tell them I want to introduce them to a friend of mine to show what a real encounter with the police looks like. I put on a police cap, aviator shades, a real police badge, handcuffs, and wear a handcuff case on my belt. This generates a whole new vibe. At this point, I ask for a volunteer and ask her to imagine she is at an outdoor concert, a Phish show, maybe. I instruct the volunteer to act as she would during a real police encounter.
Then I begin my act. I walk up to her and say, "Hi, I'm Officer Friendly. How are you doing? We're just checking up on people for safety reasons because there's been a lot of drug use here. Can I ask you a question," I ask, doing my best to look intimidating. "Yes," replies the volunteer. "Have you seen anyone smoking pot?" I ask. "Don't lie to me, you can tell me the truth." She shakes her head. "I'll ask you again, have you seen anybody smoking pot?" The volunteer says, "no." Shaking my head in disbelief, I say, "Don't lie to me. Have you seen anybody smoking pot?"
By now the volunteer admits that, yes, she has seen that. So I ask, "What about you? Have you taken any drugs today?" Hoping to win points for honesty, the volunteer admits, "Yes, my friend and I smoked a joint earlier." Stupid admission. My cop instincts aroused, I tell her, "Can you go ahead and open up your bag for me?" She hesitates, ask something like, "Do I have to?" To which I respond, "If you don't you'll just have to stay here while I call the dogs. It'll be an inconvenience and an embarrassment for you. If you just open up the bag, it'll be easier for both of us."
Before long, the victim, er, volunteer opens up the bag, and I spot a plastic baggie. "Can you pull that plastic bag out for me, please? Is that marijuana?" When the volunteer sheepishly admits that the substance is indeed pot, I say, "I have to place you under arrest for possession of a controlled substance, please put your hands behind your back." I cuff her hands behind her back and read her her rights.
That gets people's attention. Then I explain that she really isn't under arrest, I'm really not a police officer, and that really wasn't pot in that baggie, but what is real is the way she reacted to the police officer and the fact that she ultimately consented to be searched. Now, we can focus on what she should have done differently. This leads to informative discussions, and I try to always have a legal expert, a defense attorney present who can address specific questions from the audience.
DRCNet: You are coming close to offering legal advice that could have a huge impact on people's lives. From what sources did you get your information?
Silverman: I have compiled information from groups like the ACLU, as well as numerous defense attorneys and even former police officers. The information I provide has been vetted by the legal experts. It is pretty basic stuff, just your basic constitutional rights. But the overwhelming majority of the public does not know and understand its constitutional rights and how to flex them during a police encounter. There is a real need for this information to be made available. That's what I'm trying to do.
DRCNet: How did you end up doing this?
Silverman: I had worked with DRCNet as campus coordinator for two years, and in the process I interviewed dozens of young people who had lost federal student aid because of drug convictions. During those interviews, I made a point of asking what happened during their encounters with police, and I found that many could have avoided arrest if they had been trained to assert their rights. I began to understand that there was a serious information gap out there. Then, when I started talking to defense attorneys, they uniformly told me that around 90% of their clients could have avoided arrest or gotten reduced charges if they had known how to assert their rights.
DRCNet: Who is making use of your services?
Silverman: This is a new program, but I've done two gigs at Students for Sensible Drug Policy (SSDP) conferences and I've done one presentation for a District of Columbia charter school. The latter was my first word-of-mouth referral, and I'm hoping to get more and more as time goes by and the word gets out.
DRCNet: You're a white guy from the Philadelphia suburbs. We know that despite roughly equal levels of illicit drug use, blacks and Hispanics are arrested in hugely disproportionate numbers. How will you overcome the drug reform movement's traditional inability to reach out to minority communities?
Silverman: The presentation at the DC charter school is one good example of the kind of outreach we need to do. This presentation is fundamentally a harm reduction measure, and we know that it is primarily minority youth who are targeted by law enforcement. With Flex Your Rights, you don't have to identify as a drug policy reformer, you are merely equipping people with the tools to exercise their rights effectively, and they can come to their own conclusions about the role of the drug war in their daily lives. Police abuse is all too common in minority communities -- and believe me, the people who live in those communities know that -- and Flex Your Rights training can help mitigate the impact of over-zealous policing. This is real information people can use immediately in their daily lives. Flex Your Rights understands where the greatest need for us is, and that is why we are undertaking efforts to reach out to organizations such as local NAACP chapters or the New Jersey Council of Black Ministers, which has propelled the efforts to end racial profiling in that state.
DRCNet: You mentioned a video project earlier. Is the video available now?
Silverman: The "Busted" video is currently in development. It will accompany the training sessions and it will feature reenactments of real police encounters. We're looking for someone with some street credibility, maybe a current or former police officer, to be the narrator. I'm currently in the process of raising funds to produce the video.