The Privilege To Shut Up

Law, Politics & Current Events

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

94 Comments

87 Comments

  1. Jim  •  Jan 15, 2014 @9:38 am

    Thanks for the advice, Ken. I've been wondering this: as a bystander, am I endangering myself when I call in to report what I think to be a crime? After all, if I'm a witness, I can be placed at the scene and hence can potentially be considered a suspect. Thoughts?

  2. FitzJames  •  Jan 15, 2014 @9:39 am

    Terrifying as always…

  3. Kilroy  •  Jan 15, 2014 @9:39 am

    "But i'm smarter than a stupid cop, I can convince him I didn't do anything wrong."

  4. Hoare  •  Jan 15, 2014 @9:51 am

    Some words not to use ….
    because they won't even sway a jury …..

    "Daddy, help! They're killing me! "

  5. Scott  •  Jan 15, 2014 @10:10 am

    Case-in-point: http://tbo.com/list/columns-tjackson/jackson-gun-owner-unarmed-unwelcome-in-maryland-20140112/

    Husband says he left his gun at home.
    Wife says she doesn't know where the gun is, but "helpfully" suggests that it could be anywhere in the car.

    Cop Interpretation: Man is lying. Searches and threats of jail time commence.

  6. Erich  •  Jan 15, 2014 @10:11 am

    THAT is a great post, Ken.

  7. Ken White  •  Jan 15, 2014 @10:15 am

    Scott: you mean the case linked in the post? :)

  8. Becon  •  Jan 15, 2014 @10:20 am

    Sorry, but this is not sufficient to be deemed most extreme on Popehat. That title goes to Clark, or maybe Patrick who I suspect is a serial killer.

  9. cvkvlv  •  Jan 15, 2014 @10:26 am

    But they're just there to protect and serve us . . .

    In case missed:

    http://www.nytimes.com/2014/01/12/us/bloggers-incarceration-raises-first-amendment-questions.html

  10. Mike B  •  Jan 15, 2014 @10:26 am

    I've come to the conclusion that nearly every cop who isn't a high school bully that didn't want to grow up is a naive idealist who thinks they can right all the wrongs in the world.

    Both of those categories of people are categorically impossible to reason with. Honestly I'm disinclined to even call the police if someone breaks into my home. They'll probably shoot my dog just to make sure I don't get "uppity."

  11. Ken White  •  Jan 15, 2014 @10:31 am

    cvkvlv: In case I missed the NYT article that quotes me? :)

  12. Grifter  •  Jan 15, 2014 @10:35 am

    Best and most accurate use of "privilege" I've seen in a while.

    I'm pretty lucky, in that I'm white, and my job makes most cops see me as one of their "us" (paramedics also wear blue donchaknow).

    But I'm not always in uniform, and I've had to balance the "shut the hell up" instinct against the "what if they decide I've done something because of that" instinct before (and, for the record, always in circumstances where I've done nothing wrong because I'm anal retentively fastidious about most laws), because I am poor. And every time I've chosen the "speak" option over the "STFU" option, I've had my imaginary Ken White shaking his head at me, so I appreciate that you do understand that sometimes that's how the calculus of risk works out.

  13. NI  •  Jan 15, 2014 @10:36 am

    Just because you refuse to talk to the cops doesn't mean they won't lie and say you did. Some poor women in Arizona just spent 25 years on death row after a lying detective claimed she made statements she never made.

  14. Mark Wing  •  Jan 15, 2014 @10:43 am

    Great advice, but some people seem to have the complete inability to shut up, no matter the circumstances.

  15. Ken White  •  Jan 15, 2014 @10:51 am

    NI: You mean the case linked TWICE in this post?

    Jesus Christ. Are you people trolling me?

  16. Louise  •  Jan 15, 2014 @10:51 am

    Excellent points, Ken. One other thought – as someone who has been privileged by birth/luck/genetics as well as hard work, I don't tend to see cops through the same lens as others in a different situation. My impressions are colored by one of my first interactions with a cop, where your grandfather convinced a cop not to give him a speeding ticket by patiently explaining the concept of a hypotenuse and calculating his actual speed in the dust of the trunk. Everyone stayed calm, the cop listened respectfully, and the ticket was avoided. Going forward from there, my experiences generally suggested that cops were trustworthy, and sometimes rather heroic. It wasn't until I was an adult and was subject to a rogue cop myself that I realized that privilege does NOT prevent poor treatment/misinterpretation by jerks with authority. Good that I figured this out before I murdered that nephew so I know to keep my mouth shut no matter what.

  17. alconnolly  •  Jan 15, 2014 @10:57 am

    Impressive understanding of the world we live in. I have often thought the same thing when considering such advice. For instance when my children were younger and I had a ex wife capable of using any excuse as a weapon that could threaten my relationship with my children, there is no way that I would have stood for my constitutional rights on principle, if boot licking would smooth things over. My children were far more important. Now that they are grown and I am safe from the worst calamity that a negative encounter could bring, I feel far more comfortable "pushing back" against abusive overreach of authority.

  18. Spacemanmatt  •  Jan 15, 2014 @11:05 am

    One time I called the police to protect my family from a home invader: My deranged ex-wife. Nothing stopped her from lying, nor the cops from taking her side and charging me. Fortunately, my absolute promise to see her jailed for false statements to police, and perjury should she press it in court caused her to write a most sincere-sounding retraction to the prosecutor.

    In hindsight, I would have been better off seriously injuring her and lying about it. We live with a police force that is seriously screwed up, at least as much as the general populace, if not more.

  19. Andrew M. Farrell  •  Jan 15, 2014 @11:12 am

    If a cop comes to my door and asks about a crime in the area, it is unwise to say
    "hang on, let me grab some paper and write this down" and just give them a written statement after taking a photo of it?

  20. SteveEG  •  Jan 15, 2014 @11:12 am

    Ken: I just read a great blog post on this very topic, in case you missed it: http://www.popehat.com/2014/01/15/the-privilege-to-shut-up/

  21. joshuaism  •  Jan 15, 2014 @11:34 am

    @Louise

    My impressions are colored by one of my first interactions with a cop, where your grandfather convinced a cop not to give him a speeding ticket by patiently explaining the concept of a hypotenuse and…

    Man, I'm not even a cop and I suspect your grandpa was lying.

  22. Lizard  •  Jan 15, 2014 @12:08 pm

    @Ken: Reading articles takes away from valuable commenting time!

  23. Irk  •  Jan 15, 2014 @12:10 pm

    Thanks for explaining privilege in such a clear and understandable manner, and for talking about it at all. The concept gets mocked a lot but it's very real in our lives.

    There's a blog that talks a lot about the issues you mentioned in this post! Worth a read.

  24. Jack B.  •  Jan 15, 2014 @12:13 pm

    … and SteveEG wins the thread.

  25. Mann42  •  Jan 15, 2014 @12:23 pm

    NI: You mean the case linked TWICE in this post?

    Jesus Christ. Are you people trolling me?

    Oh, how I've missed you 'round these parts.

  26. Xoshe  •  Jan 15, 2014 @12:25 pm

    Given the current state of affairs in the LEO world, I cannot disagree with what has been presented. It still, however, leaves me wondering if it's a self-fulfilling prophecy.

    What I mean is that, as pointed out, police will often have preconceived notions or prejudices. But is the infrequency of people actively communicating with the police a cause of these prejudices, or a result there-of? I believe it's a combination of both, hence it being self-fulfilling.

    Are there good reasons to not talk to a LEO? Yes, as has been linked in the post and comments. I do not argue that point, and accept this fact fully. But I can't help but be worried that by ostricizing the LEO occupation entirely, we only end up causing the exact people we don't want in the LEO field to be the only ones willing to stick around and deal with it.

  27. Cliff  •  Jan 15, 2014 @12:32 pm

    Wow, I've had nothing but positive and balanced interactions with the police here in the UK. Am I just lucky or culturally on balance is it different here?

    Ps – have to ask as it's puzzled me a while… 'burglarized', why not use 'burgled' which is shorter and sounds less lumpy?

  28. Mike  •  Jan 15, 2014 @12:33 pm

    This was originally a joke that I now see has been made before. Since I apparently can't just delete, I'll share my own experience. Was out with friends at a beach, when on the way back from the bar I saw police sirens. Some girls my friends had been skinny-dipping with were being interrogated (my stalwart friends having absconded).

    They immediately confessed, hoping for leniency. Instead, they gave him evidence he needed, as they were reclothed when he showed up. I went over, being a little drunk and good-samaritany, to advise them to stop digging, and ask the officer why he was arresting a girl whose hair and clothes were completely dry. He asked me if I knew what obstruction of justice was. Said yes, I work for a court, I know exactly what it is. He went back to intimidating the young ladies, which, sadly, worked better than his attempt on me. So, to give purpose to my rambling, on top of the privilege of having the financial wherewithal to shut up with cops, there's the privilege of knowing that you can, also lacked by too many.

  29. Dan  •  Jan 15, 2014 @12:34 pm

    Thanks for the brilliant post Ken.

    I've shared to google plus and also passed it around amongst defense attorney friends. Your writing style is pitch perfect, and you say with much more clarity and humor than I could write on my own.

    I should print this out and hand it to clients when they come see me.

  30. James  •  Jan 15, 2014 @12:34 pm

    from the Bieber article someone linked to:

    "The purpose of the search warrant is to seek video surveillance or other possible evidence in the vandalism that occurred on January 9, 2014," the sheriff's statement said.

    Deputies seized video from computer hard drives on the "extensive" security monitoring system on Bieber's estate, Thompson said.

    and

    One of Bieber's house guests, rapper Lil Za, was arrested when deputies allegedly found illegal drugs during their search, Thompson said. Although the drugs were initially reported to be cocaine, Thompson later said they are believed to be Ecstasy and Xanax, but lab tests will be needed to confirm it.

    So the warrant said to search for video surveillance, but they found Lil Za's drug stash? AND they took the hard drives from his surveillance system?

    Shutting up doesn't seem to be enough, even if you're a rich, young, white pop star. Or maybe the young, rich, black pop star simply lacked privilege.

  31. Louise  •  Jan 15, 2014 @12:53 pm

    Actually, Joshua, he wasn't lying, and the cop had the good sense to realize his error. If your car is traveling in a straight line on a freeway, and the cop is coming up an on ramp at an angle of approximately 45 degrees, the cop has to go faster to match your speed. I personally could never get out of a ticket by giving a roadside tutorial on geometry, but let me tell you, my dad/ken's grandpa could. It did take a good 15 minutes, though!!!

  32. QHS  •  Jan 15, 2014 @1:02 pm

    Xoshe: Yes, it's a self-fulfilling prophecy. But I think you've got it backwards. Because cops treat everyone as The Enemy, they have turned everyone into The Enemy.

  33. ULTRAGOTHA  •  Jan 15, 2014 @1:02 pm

    You mean the case linked TWICE in this post?

    Jesus Christ. Are you people trolling me?

    Ken, their people have no tradition of clicking links.

  34. Clark  •  Jan 15, 2014 @1:32 pm

    @ULTRAGOTHA

    Ken, their people have no tradition of clicking links.

    LOL.

  35. Dave Crisp  •  Jan 15, 2014 @1:45 pm

    @Cliff:

    Wow, I've had nothing but positive and balanced interactions with the police here in the UK. Am I just lucky or culturally on balance is it different here?

    I obviously know nothing about your race or cultural background beyond being (presumably) resident in the UK; but the answer is yes, cops over here can be just as racist, sexist and classist as they can everywhere else.

    See, for instance, The MacPherson Report. And that's just the most notorious case.

  36. Rob McD  •  Jan 15, 2014 @1:57 pm

    Here's my challenge to the "but I haven't done anything wrong" rationale for talking to cops: The fact that you've done nothing wrong, yet are the subject of police scrutiny, proves that the cop is incompetent, unreasonable, or both. That is not a good time to surrender your rights.

    Thank you for persisting in this "shut up" series.

  37. Jim Salter  •  Jan 15, 2014 @2:24 pm

    Well said, Ken. Thank you for this.

  38. JdL  •  Jan 15, 2014 @2:46 pm

    Excellent post! But, other than as examples of how it sucks to be poor, especially given the presence of cops who are murderous criminals who particularly target you, I don't follow your thoughts about a change in strategy if one is poor:

    But Justin Bieber and I — and many of my clients — share a crucial quality: we're affluent and fortunate… Poor people live on the razor's edge, and a bogus retaliatory arrest can destroy them… 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.

    Very true, but I haven't seen anything that suggests that poor people should be more willing to cooperate with police as a result. Presumably, no matter what they do, the cops will assume they're guilty. All the more reason to shut up! Better a retaliatory arrest than a false convection.

  39. Xoshe  •  Jan 15, 2014 @3:00 pm

    QHS:

    I will accept that as a possible explination, but I think that the cycle going that way still causes the situation I'm worried about: If the ones who treat everyone as The Enemy result in everyone acting as if they're The Enemy, then the ones who would have been otherwise reasonable are either pushed out of the service or change to be in line with the ones who are perpetuating the cycle.

    Whether the LEOs are reacting to people's responses to them, or people are reacting to LEO's responses to them, I'm left concerned that the inevitable conclusion is that there will only be bad LEOs left, and thus more of these same stories. But the state of affairs as it currently stands doesn't leave room for much else, and that leaves me depressed.

  40. Mike B  •  Jan 15, 2014 @3:06 pm

    Very true, but I haven't seen anything that suggests that poor people should be more willing to cooperate with police as a result. Presumably, no matter what they do, the cops will assume they're guilty. All the more reason to shut up! Better a retaliatory arrest than a false convection.

    Well, I agree nearly 100% I'd say it's always the right move to STFU when dealing with LEOs, but it definitely colors the matter a darker shade of sickly green. It makes it a lot easier to convince yourself "if I just say xxx I might get out of this intact" when you know damn well they're going to ignore your constitutional rights and it will damage your whole life instead of just a small part of it.

    Any system ever is going to be abused, that's just human nature. What makes it intolerable and weighs it against the poor more than anything is the bureaucratic roadblocks towards or outright lack of redress for these abuses. If I spend my weekend in the slammer because billy-club-bob illegally interprets my silence as guilt, I may have a miserable weekend and an akward conversation with my boss but it's probably gonna roll over. If Billy-Club-Bob threatens Tyler the lower class minority living at the poverty level, that weekend stay could shatter his entire life. At the end of the day though, "cooperating" is likely to ruin either of our lives more, but when it's suddenly an anvil above your head it makes it more understandable (if still wrong and ill-considered) to do something stupid and desperate to get out from under it.

  41. John Kindley  •  Jan 15, 2014 @3:17 pm

    This is indeed a great and much appreciated post. I had a client call me by cell phone once from the scene of a stop. Turned out I had gone to high school with the cop, so when my client mentioned my name the cop asked to talk with me. The cop explained the situation, although was fuzzy on details, or I'm fuzzy on details now. I don't know whether the cop expected me to tell my client to talk to him, since we knew each other, but I advised my client not to talk with him after I got him back on the phone. I wasn't confident in this advice, made in real-time, for the reasons Ken so well explains. And sure enough, I got a call a few minutes later from his girlfriend, also on the scene, telling him they were taking him to jail. Damn! But THEN they apparently brought him back to the scene, explaining somehow they were mistaken in arresting him, if I'm recalling correctly the details of a situation that was very confusing even as it was occurring.

  42. A Different Ken  •  Jan 15, 2014 @3:40 pm

    It's easy to say 'Just shut up and ask for a lawyer' but reality can be a bit messier.
    The cops will do a number of things to do an end run around those messy 'rights' They lie, they threaten, and after having your home ransacked and being taken to jail in handcuffs it's easy to be a bit too rattled to think clearly.
    Then, after nearly a week of sleeping on a pallet on the floor until a bed, which is actually less comfortable than the pallet, opens up the lead investigator starts dropping by to 'chat' with a constant barrage of 'tell us the truth, no, you know that isn't the truth, tell us the truth.'
    Oh, and somehow the formal request you fill out to speak to an attorney doesn't make it's way through the system for weeks.
    While on the outside your family is being run around and around the process of posting bail, so that it takes nearly a fricking month to get it done.
    I honestly don't think it's ALL evil intent, just a cluster$#@! of the usual broken nature of bureaucracy, made horrible by the circumstances.

  43. JDM  •  Jan 15, 2014 @3:55 pm

    I have long maintained that the mere fact that the officer is REQUIRED to inform you that the SUPREME COURT has specifically ruled that you have a RIGHT to shut up, is a strong but not so subtle suggestion that it is a VERY good idea.

  44. Anthony Kehoe  •  Jan 15, 2014 @3:56 pm

    @Cliff: Wow, I've had nothing but positive and balanced interactions with the police here in the UK. Am I just lucky or culturally on balance is it different here?

    I've watched enough episodes of Motorway Cops (http://www.bbc.co.uk/programmes/b01rqj3c) to appreciate a few things about living in the USA now:
    1) STFU
    2) Thank God for the 4th Amendment
    3) 1) again and Thank God for the 5th Amendment

    Watching what police do when there's no worry about PC, reasonable suspicion, right to silence is just scary.

    I know it's Wikipedia, but to cite:
    The 1994 Act modified this to be:
    "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
    This is similar to the right to silence clause in the Miranda Warning in the US.
    The new Act was based on the 1972 Criminal Law Revision Committee report and the Criminal Evidence (Northern Ireland) Order 1988. It rejected the reports of the 1991 Royal Commission on Criminal Justice and the Working Group on the right to silence. The supporters of the proposed Act argued that the existing law was being exploited by 'professional' criminals, while innocent people would rarely exercise their right. Changing the law would improve police investigations and adequate safeguards existed to prevent police abuse. Opponents claimed that innocent people may reasonably remain silent for many reasons, and that changing the law would introduce an element of compulsion and was in clear conflict with the existing core concepts of the presumption of innocence and the burden of proof.

  45. C. S. P. Schofield  •  Jan 15, 2014 @4:09 pm

    I must admit that I am not looking forward to the day when the preferred option of the non-affluent changes from "shut up" to "Shoot, shovel, and shut up".

    As privileged persons (I am, anyway) we need to back efforts to loosen "gun control" (read "peasant disarmament"), to eliminate any shadow of a doubt that it is ALWAYS legal to record interactions with the police, and to establish at law that a LEO blatantly breaking the law has forfeited all the protections of his office.

    Not that I expect to make headway on this soon.

  46. Joe Hone  •  Jan 15, 2014 @4:57 pm

    As a former prosecutor, current defense attorney (not unlike Ken), some observations based on personal experience. The problem with with too many officers is both the training they receive ("we're waging a war") and the mentality then carried onto the job ("whatever it takes to win the war"). I don't think as some have said that only thugs and bullies become cops, but I do think the environment they live in spits out what we get, which is alarming. If you can corner an old-time officer, someone who retired in the 90s or before, you will get the same feedback about the current training. Just look at the photos published by many departments/officers of their SWAT teams – a militaristic, trophy driven culture that should frighten all concerned citizens.

  47. Andrew Norton (@ktetch)  •  Jan 15, 2014 @4:58 pm

    @anthony Kehoe – I'm an ex-pat brit, and yeah, wasn't happy when that change went through. Although on the flip side, cops lying in interviews aren't tolerated as much as n the US.

    More on topic, I help host the EFForums track at Dragoncon each year, and one of the annual favourites is showing the video "10 rules for dealing with the police", followed by a Q+A session, often with lawyers, sometimes cops as well. In 2012's session we had two ex-cops who were arrested by other departments for 'impersonating a cop' while they were just off-duty, and in 2011 we had one of Georgia's youngest ever police chiefs (and at the time deputy chief at one of the large cities just outside Atlanta). Very enlightening.
    For those that want to hear it, and others, you can get the audio from our site (eff.dragoncon.org) or here's the mp3's direct
    2011:
    http://archive.efforums.net/images/stories/audio/mp3/2011/Busted_2011.mp3
    http://archive.efforums.net/images/stories/audio/mp3/2011/10Rules_for_dealing_with_police_2011.mp3
    2012:
    http://archive.efforums.net/images/stories/audio/mp3/2012/10RulesPolice.mp3
    2013:
    http://archive.efforums.net/images/stories/audio/mp3/2013/10_rules_police_encounters.mp3

    These are often very well attended (our screening room is full to bursting) and we get a lot of good questions and answers.

  48. Sami  •  Jan 15, 2014 @5:10 pm

    An excellent post.

    I have never had a non-social interaction with a cop outside of very minor traffic things. The worst I had one of those was when I had only just got my driver's licence, was getting yelled at by my sister to change lanes, and proceeded to do so far too abruptly and, in the process, nearly side-swiped a police car. In fairness to the police, I think the short lecture I received about safe driving practices was probably quite merited.

    I have a somewhat weird reaction to posts like this, though, because on the one hand, I'm certain you have reason to know what you're talking about, but on the other hand, I'd still have an impulse to talk to the cops, because somehow I can't make myself view cops the way you do.

    I don't know how much of it is that I'm Australian, and Australian police have a less horrific record than America's overall (so far, at least), and how much is influences like growing up with a police detective as a close family friend, and so in part knowing police work as something that takes a heavy toll on someone, too.

    He was working in the serious-violent-crimes section when I was a little girl, and through my childhood, though he was still, in Australian terms, "a good bloke" and a good friend to my parents, he seemed to become increasingly awkward in his interactions with me. I later understood that it was a side-effect of his work – he was dealing with situations where girls were the victims of crime in horrible ways, and was struggling to deal with it. He couldn't look at me and not see the things that could happen to me.

    He eventually transferred to a different division, because violent crime was destroying his soul. I'm not sure that he's unusual, as a man or a cop, except perhaps in that he was aware of it, but among the things I know is that police work is difficult and emotionally damaging.

    I don't like the way the criminal "justice" system is set up, in your country or mine, for a lot of reasons, but one of the things that's wrong with it is that it is pretty much set up in ways that are guaranteed to ruin people's lives. And nobody wins (except, perhaps, that subset of lawyers involved who are sociopathic assholes), because yes, there are cops out there who are ruining (or ending) people's lives, but it's not like the cops even come out ahead, because the cops themselves aren't happy, either. (Except, again, the sociopathic asshole subset. Maybe.)

  49. Fasolt  •  Jan 15, 2014 @5:35 pm

    Ken, I'm proposing one exception to your advice. Anyone associated with Prenda can talk all they want.

  50. NI  •  Jan 15, 2014 @6:00 pm

    Guys, please chill. Yes, the story was linked twice in the article, and yes, I probably should have said so in my comment, but the main point of my comment is that Ken's advice to shut up only goes so far, because sometimes, even if you do shut up, the police will lie and claim you talked anyway. Against a police officer without any scruples, even shutting up may not be enough.

  51. Matthew Cline  •  Jan 15, 2014 @6:30 pm

    @Rob McD:

    Here's my challenge to the "but I haven't done anything wrong" rationale for talking to cops: The fact that you've done nothing wrong, yet are the subject of police scrutiny, proves that the cop is incompetent, unreasonable, or both.

    Not necessarily. Cops, being human, are going to make mistakes, and some of those mistakes will take the form of talking to someone who hasn't actually done anything wrong.

  52. Peter  •  Jan 15, 2014 @6:38 pm

    Saw an excellent youtube video along these lines a few years back.
    An law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police without a lawyer.

  53. Rob  •  Jan 15, 2014 @7:56 pm

    Anyone else catch Monday's Archer episode? Had a textbook example this and of the Prisoner's Dilemma.

    One of the funniest lines: "I didn't say anything about immunity, you did." Delivered by an FBI agent, after everyone had spilled their guts.

  54. Joe Pullen  •  Jan 15, 2014 @8:33 pm

    So, recent true story regarding a friend who has a personal blog. This individual was stalked online for several years and finally decided to “out” their stalkers on their blog. Nothing confidential, just names addresses, etc. all information that was easily found using Google. The stalkers, having been outted, then retaliated by making repeated calls to the police alleging they were the ones being stalked. The police, big surprise, did zero to think through or verify any of the information.

    The police then showed up at this individual’s door and they did EXACTLY what Ken said DO NOT DO, let them into the house. The cops proceed to interrogate as though this person was in fact already 100% guilty and convicted and then lied about non existent warrants from other states and countries in an effort to force some sort of confession or cooperation. The police even went so far as to "ask" to remove the families personal and work computers – thankfully this individual had the presence to say no. Keep in mind no warrant was ever produced. Additionally, the police alluded if the individual did not remove certain blog posts they would be arrested. Yes. Arrested. The blog posts in question did not contain any libelous or confidential information and were in fact nothing more than a summary of (non copyright) information on individuals that was . . . well already public in multiple places.

    Nevertheless, the police then showed up at the spouses work and dragged them out of an executive meeting in front of co-workers. One police officer even had his hand placed overtly on his gun in his gun belt. The family had to hire a criminal defense attorney to talk to the police before the police were finally made to understand the complaints were completely bogus and the result of a group bullying/stalking effort, not that it kept them from showing up at their door – AGAIN. This individual and their spouse, both tax paying upstanding citizens of their community, never arrested, are out the cost of a defense attorney and still terrified to drive down the street every time they see a police car.

    If they had simply known how to handle this, I doubt they would have had the ongoing issues or legal costs they incurred. As it stands, they can’t sue the police and can’t do anything to the individuals who filed the false police reports unless they want to spend thousands they don’t have and still run the risk of not winning.

    They're not poor or disadvantaged and yet they STILL fell into the same trap of thinking "hey I'm innocent I've nothing to hide, why shouldn't I talk to the police".

    This is the new face of cyber bullying, and if people don’t know how to deal with the police, they’re going to either end up in jail or out a lot of money trying to defend themselves.

  55. Brian  •  Jan 15, 2014 @9:12 pm

    If the police are willing to lie about the content of what you say to them, why wouldn't they lie about whether you talked to them, if the evidence indicates you were in physical proximity to one or more cops? A genuine question; not meant to be a sarcastic question.

  56. Dormammu  •  Jan 15, 2014 @11:14 pm

    @Brian,

    They will do that too, but the bigger lie they tell, the easier it is to pick apart in court. It's easier for them to stick to smaller lies so they don't have to wander as far from their made-up narrative.

  57. Dormammu  •  Jan 15, 2014 @11:15 pm

    @ Joe Pullen

    If the individual you mention was being stalked, why did he or she not go to the police first?

  58. pjcamp  •  Jan 16, 2014 @1:19 am

    Cops are scum.

    Remember that and you're OK.

  59. Mike  •  Jan 16, 2014 @6:07 am

    Excellent article, thank you for articulating this so elegantly.

  60. Bill  •  Jan 16, 2014 @8:29 am

    @Rob Jan 15, 2014 @7:56 pm:

    Hell yes to Archer. Notice Cyril claimed he used to be a public defender later in the episode?

    Oh, how I howled.

  61. jimmythefly  •  Jan 16, 2014 @10:44 am

    Thanks for the description of priviledge. I'm probably what most would call "priviledged", but an impounded car or a weekend in jail would be very tough on me. Finding $1000 for bail would be difficult. Not catastrophic, but I'm already living paycheck-to-paycheck, so things would be close.

  62. azazel1024  •  Jan 16, 2014 @12:01 pm

    Might I say, it isn't that we shouldn't "not talk to the police", its that often times what gets a lot of people in trouble is "speculation" or offering "helpful words" when it isn't a good idea.

    For example, the man's wife in the incident linked first. When the cop asked her where her husbands pistol was, a simply "I don't know." or "I don't know, have you asked my husband?" was as much as she ever should have done.

    Idle speculation, especially saying things like "I am scared of it and it could A N Y W H E R E" just sound like they are asking for trouble. It shouldn't, but it does.

    There are certainly times you just shouldn't answer an officer's questions. If it seems like they are probing to get you to incrimenate yourself on something, or someone you know, you should probably just keep your mouth shut and if they push, request to only answer questions in the presence of your attorney.

    A general question though? I feel like the calculus often still comes down on the side of answering the question. Straight, to the point no speculation, only say what you know is true and limited solely to the question asked.

  63. Brad Hicks (@jbradhicks)  •  Jan 16, 2014 @1:00 pm

    I've been trying to come up with a simple version of this rule, a one sentence summary that any of my friends (who haven't spent decades studying civil liberties issues) can remember, and this is the best I've come up with so far:

    If you called the cop, it's probably okay to talk to the cop; if the cop called you, say nothing.

  64. Cat G.  •  Jan 16, 2014 @1:29 pm

    @Azazel – And, as the defense attorney and police officer noted in the above linked YouTube video, with backup in the form of the Supreme Court, your truthful statements may still mean you will be convicted of a crime regardless of your innocence.

    Outside of situations in which there is imminent, immediate danger, I would never talk to a police officer in connection with any investigation. (By imminent danger, I mean yes I'll tell a police officer "The guy shooting at me is over there!")

  65. asret  •  Jan 16, 2014 @1:43 pm

    A bit off- topic, but apparently this is what a police state looks like to New Zealanders. Keep the Kiwi menace out of the USA!

  66. Ken White  •  Jan 16, 2014 @2:03 pm

    See, asret, those police just aren't helpful. Here in America the police would have arrived and shot the guy's son to death inside 15 minutes.

  67. Dan  •  Jan 16, 2014 @3:27 pm

    If you called the cop, it's probably okay to talk to the cop; if the cop called you, say nothing.

    Not necessarily true. An old friend of mine, a large-ish Puerto Rican man (for the sake of brevity, let's call him "Glen"), caught a kid breaking into his car, which was parked in front of his house. He called the police. They showed up, checked out the car for, oh, let's say thirty seconds or so, and proceeded to ask Glen all sorts of odd questions, like, "Where did you get this car?" (he bought it with cash), "Do you have any warrants on file, or an arrest record?" (no), and "Do you own any firearms?" (yes, in a gun safe in the basement).

    They finished up with asking him to assume the position on his own vehicle so they could search him "for their own safety", then proceeded to try and badger him into letting them look around his house for any "evidence". When Glen pointed out that he was the one that had called the police, that the crime had happened outside his house, and that, in fact, he knew the kid that had tried to break in (it was one of the neighbor's sons), well, that's when the police decided that the correct course of action was to arrest him for "failure to cooperate", which swiftly turned into "resisting arrest" when he stated that he didn't want to go with them. This happened on a Friday, so Glen sweated the weekend in a holding cell. He was released Monday, all charges dropped.

    Being the person that called the police doesn't always protect you from police misconduct. Sometimes all it takes for things to go sour is to be the wrong color in a mostly white neighborhood.

    (As an aside, the police never did arrest the neighbor kid, and refused to file a police report, so Glen had to pay for all the damage done to the car out of his own pocket)

  68. Joe Pullen  •  Jan 16, 2014 @3:55 pm

    Dormammu – to answer your question it was online and that person as most mature adults, blew it off as just being someone who was freaking out online and nothing more. The issue was when that individual then took it into real life by calling the police with a false police report, encouraging their friends to do the same, and voila – cops at their door.

  69. David Schwartz  •  Jan 16, 2014 @6:44 pm

    @Brian If you tell them things they already know, that's very unlikely to help you. If you tell them things they don't already know, that gives them proof you talked to them. If you don't talk to them, you definitely won't give them anything they didn't already know, so your purported "confession" won't be able to contain any new information. On the other hand, if you tell them anything they didn't already know that's consistent with your having committed a crime, they can work that into their purported narrative with you, bolstering its credibility.

  70. James Pollock  •  Jan 16, 2014 @6:56 pm

    But… you can't legally exercise your right to remain silent unless you tell the police you want to do so.

  71. Not Claude Akins  •  Jan 16, 2014 @6:59 pm

    Burn it down, Ken!

    You guys feel like kickstarting a secession movement? I think it's an underexplored idea.

  72. AlphaCentauri  •  Jan 17, 2014 @7:06 pm

    You guys feel like kickstarting a secession movement? I think it's an underexplored idea.

    Who secedes from where, and who gets to keep the nukes?

  73. htom  •  Jan 17, 2014 @11:24 pm

    It took me a long time to understand "when a cop questions you, shut the fsck up!" Zimmerman did and (as his subsequent life demonstrates) used up all of his luck. You're speaking English, they're hearing Criminal. You are not speaking a language they can understand.

  74. Dan  •  Jan 18, 2014 @12:52 am

    You guys feel like kickstarting a secession movement? I think it's an underexplored idea.

    I will choose to secede from my home state of Michigan.

    That works for me because I live in North Carolina.

    (not that Michigan is any better…but I love living in the Blue Ridge Mountains)

  75. Ben  •  Jan 18, 2014 @7:35 pm

    So if you see a police officer doing something you think is wrong, you wouldn't say anything?

  76. Ken White  •  Jan 18, 2014 @8:34 pm

    So if you see a police officer doing something you think is wrong, you wouldn't say anything?

    To whom?

  77. jdgalt  •  Jan 19, 2014 @11:31 am

    @htom: What the Zimmermann case shows is that politically motivated prosecutors don't take no for an answer, even from a jury. They just keep hassling the target until they can ruin his life, unless he somehow manages to get out of reach of their entire fraternity.

  78. James  •  Jan 19, 2014 @12:52 pm


    See, asret, those police just aren't helpful. Here in America the police would have arrived and shot the guy's son to death inside 15 minutes.

    Refering to this? :

    http://www.prisonplanet.com/dad-calls-cops-on-son-to-teach-him-a-lesson-cops-shoot-son-dead.html

  79. Codexx  •  Jan 19, 2014 @1:55 pm

    This is silly. Everyone has equivalent rights to remain silent. There are options available and provided for people who can't afford to pay for bail or an attorney on their own.

  80. Amber  •  Jan 19, 2014 @8:29 pm

    Just keep it simple.

    You can talk a cop into arresting you.

    You can not talk a cop out of arresting you, regardless of what you do or say, or do not say.

  81. Daniel  •  Jan 19, 2014 @9:29 pm

    Mr. Kehoe said: The 1994 Act modified this to be:
    "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

    I say: The U.S. Supreme Court has started moving in the direction of the 1994 Act. In America you now must speak to exercise your right to not speak, otherwise your silence may now be used against you. In addition, in California, if you refuse to submit to a blood test for drugs, your refusal can be used against you, which is a violation of the Fourth and Fifth Amendments.

    If an accusation is made against you in America, you must be careful that you don't make an "admission by silence." Some jurisdictions don't allow the cops to force you to talk to avoid an admission by silence, but I don't believe all jurisdictions are that way.

    Maybe Ken can, if he feels like it, make a post on "admissions by silence" and the "exculpatory no." There are so many conflicting court opinions on the "exculpatory no" and admissions by silence, it is difficult to tell when you must talk to avoid an admission.

  82. Ben  •  Jan 20, 2014 @10:08 am

    @ken Say something to the police officer?

  83. James Pollock  •  Jan 20, 2014 @4:23 pm

    in California, if you refuse to submit to a blood test for drugs, your refusal can be used against you, which is a violation of the Fourth and Fifth Amendments.

    Another interpretation is that in continuing to pass that blood through your kidneys, you are spoiling evidence.

  84. AnonymousCoward  •  Jan 22, 2014 @3:58 pm

    @Ken: The Mexican constitution was amended some years ago, to specify that a confession, obtained without the defense attorney being present, has no value as evidence at trial. In practice, this means that the police cannot present as evidence anything the defendant said, not even videotaped, recorded, or in writing and signed.

    The reason for the amendment was that the police's usual procedure to solve a crime was to pick up the nearest suspect and torture him/her until they signed a confession. They presented the confession to the judge, who took it at face value, and the case was closed with no recourse for the defendant.

    I don't remember a political decision in my lifetime that had more support, from all parties, and, I believe, most citizens. I think such a law is just plain, unadultered common sense.

    Is it time for the US to consider similar measures?

  85. Kevin  •  Jan 24, 2014 @9:12 am

    Ken,

    I think you may have jinxed Mr. Bieber. It appears that he forgot his lesson after little more than a week. The reports are that he confessed to smoking pot, drinking, and taking prescription drugs before drag racing in Florida.

    At minimum the line, "are you smarter than Justin Bieber" no longer works.

  86. Tim Fowler  •  Feb 20, 2014 @9:04 pm

    IMO privilege isn't a good word for not being as likely to be the subject of certain forms of abuse as someone else. You get treated like a king, you get immunity from reasonable legal restrictions and penalties, you get showered with special benefits that few others get, OK then fine your privileged, but "you have a decent chance to not be routinely subject to horrible and totally unjustified abuse". I don't consider that privilege, even if it applies to some and not to others.

  87. flip  •  Mar 8, 2014 @5:17 am

    This post is why I keep reading. Thank you Ken!

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