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Comment by Magi604 | Hacker News Reader

Wow this is insane. I hope this blows up in a big way and everyone is aware of what happened here, and I hope Mr Lowe gets a big payday.

>>>"After Lowe had been in jail for eight days, he was taken to a local judge. He still received no information about why he was there, he said. The judge told him his only options were to waive extradition — in which New Mexico would deliver him to Texas authorities — or wait for Texas authorities to pick him up. Lowe, unsure what the legal implications were of either option, waived extradition based on the court’s suggestion that he do so."

This is such a perfect application of the term "kafkaesque".

Also, is it weird that he was brought before a judge without having any sort of legal representation first, and that the judge was able to give Mr Lowe advice as to what to do? Imagining myself in his shoes, I wouldn't say a single word to the judge or anyone really before I had spoken with a lawyer, I don't care how long that takes. One wrong word and it's not hard to imagine his 17 day ordeal turning into something longer and more nightmarish.

View on HN

These types of occurrences are my number one argument for eliminating qualified immunity. Police officers should face significant, personal liability for flagrant violations of individual rights like this.

It happens every day, and in almost every case, there's literally zero recourse no matter how much money you have to throw at the problem.

This sounds good. What may be the unintentional side-effects? Downsides? I guess, another way to question this is why is it the way it is?

Cops might hesitate to act if their were repercussions, accountability or responsibility for their actions.

They already don't act because there's no repercussions for not doing anything; the SF DA is being recalled today because the cops decided they didn't like him and just haven't been doing their job for months as a result.

Chesa Boudin is the opposite problem. The answer to our broke-ass, classist, unjust "justice" system isn't to abandon prosecution almost entirely.

If I had a magic wand, the DA's offices across America would review cases promptly, prosecute justifiable cases, and preemptively drop unjustified cases as soon as possible — and report truly questionable policing to a real oversight board, while actually charging and prosecuting police officers for genuinely bad policing.

In reality, in most jurisdictions, the DA's office often doesn't even look at most cases until the day of arraignment, months after someone's life has already been run through a ringer and they've spent tens of thousands on retaining a defense attorney (if they're lucky enough to afford one), not to mention therapy (again, if they're lucky enough to afford that). All too often they'll try to coerce a plea deal for a bad case, rather than simply dropping it — and people accept the offered deal, because the alternative is incredibly expensive, and incredibly risky.

As for holding police accountable for bad policing? Unless it's a case that garners the political will to prosecute (usually due to massive negative media attention), a ski holiday in hell is more likely.

However, Chesa Boudin's office swung way too far in the opposite direction, failing to even prosecute strong cases for real crimes that resulted in real harm. Eventually, the police gave up — why bother going through the effort of policing if the DA is just going to drop the case anyway? It's like writing code only to have `git` erase your entire branch when you `git push`.

I'm not a police apologist ("fuck the police" would find a spot on my top-100 playlist!) but Chesa Boudin absolutely deserved to be recalled.

Like the cops at our most recent school shooting in Texas, you mean?

Seems like they already hesitate to act.

I agree but I also think that lot of cops are good folk and doing dirty work of keeping streets safe. Talk to them sometime outside of the media messaging. Absolute statements painting the entire police force one way or the other is wrong and disingenious.

that's sort of the point, but since accountability or responsibility are words generally given positive spin - that is to say these are things we want everyone to have in society - I'm supposing your post is extremely dry sarcasm?

Cops hesitating to break the law is the goal here.

They already hesitate to do protecting at their own peril, as evidenced by that recent school shooting.

Umm...good?

In true life-or-death situations, instinct and training still kicks in.

But maybe cops should be hesitating before deciding to escalate a situation just because someone challenged them when they overstepped their legal authority.

I'm the wrong person to steel-man the argument for qualified immunity, and will have to leave that to someone else.

I'd recommend this argument against, which does provide significant context:

https://www.americanbar.org/groups/public_education/publicat...

It's well known how courts/DAs here in the states pressure people to accept lesser charges to avoid the expense of a trial. There's no guarantee an innocent party will win at trial, and that risk of losing coupled with the cost of fighting can and does lead innocent parties to accept a plea bargain. The courts are run like a business, in that efficiency is a concern. Pragmatism outweighs idealism. The downside of taking away qualified immunity for police is the same as the downside of bringing every case to trial. Put simply, it would result in a more costly process, impeding the work of doling out punishment.

> impeding the work of doling out punishment.

I'm OK with this; Blackstone's ratio applies here, too ("It is better that ten guilty persons escape than that one innocent suffer.")

Yep, the way things operate currently is shameful.

Same for politicians

Eliminating qualified immunity won't help when judges are reluctant to award judgments against the whole department or the municipality that is responsible for them, which are not covered under qualified immunity. First you have to get the judges to stop protecting the executive side of the justice system, and then that may be enough already. (How long would a PD let these things go on if appropriate relief was awarded every time it happened?)

Lawsuits should be filed both against the department and each responsible officer, including any that refuse to help when they know better.

Whenever an officer or public official exceeds his lawful authority, he should have liability same as any random Joe on the street for the same offense.

This sort of thing happens to thousands of people in the US every day, routinely.

I mean doctors and engineers can both face jail time for negligence. The US Military has strict rules of engagement and soldiers can face court marshal. There’s no reason the police can’t or shouldn’t be held accountable for negligence or worse behavior.

IMHO you don't even need to remove/alter qualified immunity to make it happen. Instead:

1. make a policeman's professional licensing body and require all police to join it. (Take the police unions and turn them into that.)

2. Have the licensing body introduce the concept of professional malfeasance.

3. Make a simple regulatory statute where professional malfeasance as decided by that licensing body, creates civil/criminal liability.

Y'know — just like engineers!

Honestly the details of licensing, while charitable and productive to mention, are nearly irrelevant. The government has no problem setting up licensing systems. The merits can be debated, but doing what you call for is pretty well oiled machinery at this point.

The challenge is you're seeking to overturn the systems of violence with peaceful legislative action. This is a lofty goal with historically rare outcome.

The police aren’t the arm of a ruling class abusing the less fortunate (much though some want to believe this).

They’re just bad at their jobs. There are no incentives really to be good at their jobs, and very few people are motivated to get them to do high quality work. Nobody wants to understand the complexity of a police force, people are either mildly annoyed or can only grasp a message that fits on a protest sign.

“Systems” should be a dirty word when it comes to discussing social issues, it’s just a catchall boogeyman for people who don’t want to understand complexity and often (as is done subtly here) an prelude to suggesting violence.

They seem to be pretty effective at organizing and advocating for themselves.

Only so effective because of the lack of competent opposition pushing them to be better, as I was trying to express. If you can do your job basically free of corrective feedback, it’s going to get progressively worse.

Police are as good as society forces them to be, marching in the street to abolish them doesn’t put any pressure on them to be better.

Yeah actually I don't think that's true at all. They're extremely effective at shutting down polite opposition to them.

> They’re just bad at their jobs.

This is incredibly naive. In Los Angeles County, for example, there are deputy gangs[0]. That is, the police have their own gang within the department. Often they come from less fortunate backgrounds, but they’re still out to use their power for their own gain. It’s not just being bad at their jobs.

[0] https://en.m.wikipedia.org/wiki/Los_Angeles_County_Sheriff's...

The gang problems of Los Angeles are not at all representative of the policing problems in the rest of the country.

> “Systems” should be a dirty word when it comes to discussing social issues

Likewise, "complexity," as a reason that someone is wrong, yet completely unqualified by a less vague description of an actual error is a cop-out that should have no place in such discussions.

> The police aren’t the arm of a ruling class abusing the less fortunate (much though some want to believe this).

While I can't say for sure that there's a causal relationship between pay-to-win courts, rich people given an express lane to lawmakers and in general a society fundamentally built on the notion that wealth affords power, and the police bias against poor people, I believe that this is the level you have to consider the question at.

That is, the problem can't fully be explained by looking at the police force only but is the result of the police interacting with other authorities and reacting to policy. Normally you would call these interacting bodies "systems" and say that the problem is "systemic" but I guess that's a foul word.

>(as is done subtly here) an prelude to suggesting violence.

What is this even supposed to mean? A prelude to suggesting violence? Is that when you don't actually suggest violence but the word 'prelude' is used to make someone fill in the blanks to reinterpret it that way?

It's quite rich that pointing out state violence results in factually incorrect accusations (not to mention personal insult implying I'm not going to "understand complexity") as an attempt to turn the tables and make me sound the violent one instead of the systems that cause innocents to be maimed and killed by police actions.

Yeah, police gangs in LA exist (including those showing police officers glorifying killing) 'but they're not representative' of the problem. No the real problem must be 'preludes' to non-existent suggestions of violence.

>They’re just bad at their jobs.

And it is ever so convenient that they are bad in their jobs in ways that result in the disfavor of the disadvantaged, poor, and certain minorities. I'm sure that does not result in relatively better treatment for those in elevated positions of power (such as high level elected officials, who we don't dare call the 'ruling class'). No these are just happy accidents that are not at all guided by those in elevated positions of power (but not the 'ruling class'!).

The licensing body will quickly fill with people aligned with police and be entirely useless.

This kind of thing works better with skilled professionals which police are not. Plus, nobody wants engineers to build bridges that fall down, plenty of people want police to be abusive and belligerent… to groups of people they don’t identify with.

> The licensing body will quickly fill with people aligned with police and be entirely useless.

This, 110%.

It will be useless for the same reason Internal Affairs is useless. The line of "We investigated ourselves and found no wrong-doing" will continue.

Police are buddies with the District Attorneys which are buddies with the judges. The result is nobody wants to prosecute police officers.

This is why you have an ‘independent’ police complaints authority, and that then ends up between my stacked in much the same way. TIL.

Make the licensing body pay out settlements against its members and you’ll get them to “manage out” the bad apples.

Changing tort law would be an enormous political fight, way bigger than Obamacare or abortion or environmental regulation or gun rights or any of the other big ticket items.

Not sure if I agree with the idea, but it wouldn’t necessarily require changing tort law. Just require that the licensing body also provide liability insurance, as hospitals do for doctors; and “disbar” any police officer who uses anything other than the group-plan insurance to pay out a settlement, or who goes to court.

I believe unions already tend to kick out union members who don’t accept union-appointed lawyers and instead attempt to litigate their own cases. This wouldn’t be much of a stretch from that.

plenty of people also want engineers to make the cheapest possible building

You're basically reinventing internal affairs, aren't you?

Internal affairs bodies are, as the name suggests, internal — i.e. invisible to the law; and as such, they don’t have the power to create civil/criminal liability.

Whereas a professional licensing body is a separate legal entity from the people the body licenses; and the government can regulate (control, manipulate, coerce) the licensing body without getting tangled up in laws about what the government can or cannot do to protected classes of people.

Why would you need a quasi-official sanctioning body for a profession that should be sanctioned by the federal government or state in the first place? Is this yet again a case of Americanism that the rest of the world does just not understand?

I’m not American, but yes, it’s a specific Americanism — in that American police regulation happens at the state level, and the federal government doesn’t really get a say in it, and so (as far as I understand) cannot impose such a sanctioning body as a part of federal policy.

(The FBI, in its role of being external federal auditors for police corruption/malfeasance — but with no power over police departments, only the power to charge individual officers with federal criminal acts if that applies — is essentially the best the federal government can do.)

But if there just happened to be a private-corporation licensing body operating in multiple states (and thus performing “interstate commerce”), which police officers in those states were already members of… well, then the federal government would be perfectly within its rights to regulate that corporation! As long as they kept it at arm’s length, and didn’t attempt to nationalize it.

Need to make the licensing body act like insurance. Individual policemen receive qualified immunity but their licensing body will pay the fines. Police who are poorly trained or poorly behaved will be ejected by the licensing body because it will deem them too much of a liability.

The result is cops who feel like they have the freedom to do what is necessary, and a licensing body that will only select quality cops.

Or - the result is the body finds a way to have tax money fund the licensing body.

Maybe a model worth copying would be the Law Enforcement Conduct Commission (LECC) of the Australian state of New South Wales – https://www.lecc.nsw.gov.au/

The NSW state government appoints the Chief Commissioner of the LECC – but by law, they must appoint a (serving or retired) senior judge. The other Commissioner is also appointed by the government, but the Chief Commissioner has a veto over the government's appointment of the Commissioner, and by law cannot be a serving or retired police officer – http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/cons...

It seems to be actually effective – at least sometimes – in going after police misbehaviour, for example: https://www.smh.com.au/national/nsw/are-you-going-to-attack-...

Although in other cases maybe it has not done as good a job: https://www.abc.net.au/news/2022-02-20/nsw-police-watchdog-k...

And some view it as overly lenient: https://www.theguardian.com/australia-news/2022/apr/06/nsw-p...

Still, I wonder what would have been the outcome in those kinds of cases if they had happened in the US?

We need to stop treating people as disposable and subhuman in this country.

Giving him a "payday" alone isn't really justice. Whoever is responsible should spend 17 days in jail. Of course, that will never happen, but it's what should happen if the goal is to prevent "mistakes" like this happening again and again. Same goes for the victims who were "mistakenly" reported (and arrested) as car thieves by rental agencies not that long ago. Money isn't justice.

> Whoever is responsible should spend 17 days in jail.

It still would not be the same. They would have to be pulled out of their lifes randomly without knowing why and how long it will take.

Maybe a factor could be applied to account for that uncertainty. n * 17 days in jail, where n will only be announced after the fact.

They should have to clean the jail. The story of his detention is bad enough, but the fact we treat human beings in this way simply because they’ve been detained - guilty or not - should be profoundly objectionable to everyone. But there seems to be this emergent belief that jail is supposed to be a house of horrors and the punishment is the horrors of the jail itself, rather than being deprived of freedom.

Jails should be safe and clean, not traumatizing and filthy. The jail isn’t meant to be cruel and unusual punishment, but it has become that.

I admire how Norway treats Anders Breivik. The guy decided to become a monster. Norway decided against becoming a monster. He is in prison, because he cannot be free. His biggest problem in prison seems to be an outdated Playstation.

In his case there is no expectation of reform, so his punishment is not meant to educate him, it basically just does what needs to be done, without being cruel. In OP's case, I think it is reasonable to expect some conversion process. Having to clean the jail sounds like a good way to learn some humility.

America has a twisted notion of what "justice" means.

They think the goal of prison is punishment, not rehabilitation, so recidivism rates are ridiculous.

Ken White makes a very good observation about the collective reaction to this story

https://twitter.com/Popehat/status/1534192090111889410

Basically, that we should be just as shocked and appalled when it happens to guilty people as well!

> I wouldn't say a single word to the judge

I’d be saying things like “I don’t know why I am here”, “I’ve been in jail for 17 days with no explanation”, I want to talk to a lawyer… and so on.

My limited experience (thank god not 17 days) being held for almost a day with border patrol is that complaining about being held just encourages them. Yes they live for that shit.

As someone with a 'flagged' US passport (despite no criminal record nor violating US border related law) who is repeatedly been detained and thrown in a cell without even being arrested or charged with a crime, I've become quite accustomed to how agents of the state treat those under their detainment. The best strategy is to pretend like you don't give a fuck and that you enjoy the experience; then the agents lose their amusement with you and eventually grow bored of fucking with you. If you act annoyed they latch on to you and toy with it the way a cat toys with prey.

Sadly this guy made the mistake of thinking jailers are not psychopaths. Never give psychopaths an opportunity to see your weaknesses.

> just encourages them

Who?

My comment was more about the hearing.

Oh I see now, you were referring to exclusively speaking to the judge. Yes maybe that makes more sense. I have no idea if judges are as psychopathic as jailers are.

They absolutely can be. There are many stories of judges getting kickbacks for sending people off to prison and there's the FISA court rubberstamping (nearly) all requests from law enforcement.

How is this reasonable, if not criminal behavior?

If your jailers keep you without explaining what you are detained for, or if that reason turns out to be incorrect, it aught to be a crime.

Once you're in a cell, whether it is reasonable or not becomes irrelevant (or at least not too useful to fixate on in the short run). You deal with the reality and debate the reasonableness after you attain freedom.

Do you have any links to explain this. I don't understand what gives them the power to detain you...?

https://reddit.com/r/acab

The guns and support they have give them the power.

The law does not always support them, but often does.

Watch the videos in the link and the corresponding lack of justice to understand what our reality is.

The Constitution does not apply at the borders

That's not true, see: https://www.aclu.org/other/constitution-100-mile-border-zone. In fact "the Constitution doesn't apply at the borders" is what border cops want people to think, so repeating it is doing their work for them.

Unfortunately authority 'given' to CBP at the actual border (for crossers) significantly exceeds that of the 100 mile zone. They can basically detain you indefinitely without charging you with a crime and meanwhile strip search you, finger print you, toss you in a cell, etc.

The constitution doesn't apply at the border. Maybe in theory it does, but in reality it doesn't. CBP Officers specifically told me "I consent to whatever happens afterwards when I cross the border."

[ Also been told once, me a US citizen with a passport, that they had decided not to let me in my own country. Was not let through until an HSI detective came to "make sure I wasn't ISIS." ]

You get no attorney. You can't contact anyone. You can't touch your phone, if you have one. You can be tossed in custody without any oversight, and without being mirandarized. I have been booked, finger printed, tossed in a cell as a US citizen who provided a legal passport and violated no laws. You can be tossed in a van, cuffed and shackled and driven wherever they like, including hospitals where they will try to convince doctors to anal probe you (this is a real example from my personal experience).

I've studied the court cases involving US citizens, including a woman who had her orifices brutally penetrated until they were raw by a doctor[0]. THe federal docket shows no real result, and that the CBP investigated themselves and determined they did nothing wrong.

In the end the courts don't give a fuck, and most Americans don't even have a passport. I'm quite sure a good 10% of Americans would go along with a proposal that said "We should allow border patrol to shoot any suspicious persons at our borders." Border and immigration are notoriously dystopian arms of the government, because citizens either have bigger concerns or just don't give a shit what happens there.

If you contact a lawyer regarding border abuse, they will basically refer you to the (swamped) ACLU, because they know it's a waste of their time to even try.

[0] https://storage.courtlistener.com/recap/gov.uscourts.azd.985...

I'm sorry that all happened to you, that sounds really bad. I'm not doubting your experience. However I think it's important for Americans in particular to maintain the distinction between "the Constitution applies and border police are acting illegally" and "the Constitution literally has no force in these situations" when discussing these problems in forums like this one. A lot of the recent creeping fascism involves the fascists treating the law as if it didn't exist, but when actually called on it they back off.

Of course as a practical matter anyone crossing a U.S. border should understand the risk of arbitrary violence, deportation, detention, or having all your stuff taken.

I feel it. My only point was that "the Constitution applies and border police are acting illegally" and "the Constitution literally has no force in these situations" are both simultaneously true.

Honestly illegal border crossers are the only ones who maintain their constitutional rights, because once they've crossed it is impossible to prove it unless someone actually saw them do it. I've read border patrol officers comment that if a US citizen is found at the border there's basically not much they can do unless someone caught them crossing in the act.

I'm not sure what you mean by illegal border crossers. Do you mean U.S. citizens who sneak back into the U.S.? It actually never occurred to me that was punishable (instead of just a bad idea) but it looks like it is. I learned something new.

By the way, if you haven't seen it, you might like this old favorite of mine: "Born in East L.A." with Cheech and Chong, parodying Bruce Springsteen's "Born in the U.S.A.": https://www.youtube.com/watch?v=sFUFw1GH6ic. I was going to it's funny but in light of this discussion, maybe not. Not as funny, anyway.

Thanks for sharing.

> "Born in East L.A."

That was great, thank you!

Because half the country thinks it's a great system.

Which is why law & justice style TV shows display and glorify this kind of psychopathic, picking on the weak and helpless behavior, right?

Or do they show the criminal justice system as staffed by noble individuals that, on the rare occasion they cross a line, it is done with the best intentions, and bad apples and mistakes are a rare exception?

The system they think is great is imaginary, not the system you actually have. Try and think things through before you so casually condemn people.

I cannot watch any sort of cop show or Law & Order for this exact reason. It's a bunch of glorification of the government infringing on people's rights and normalizing it as some sort of reality of how the justice system should work. I wish there would be a version of law and order where no one ever talks to them without a lawyer present and they constantly get frustrated with their lack of progress despite their best efforts to circumvent the legal process.

> I want to talk to a lawyer

Honestly, I'd be worried that they'd just say "cool, that's nice, good for you." Probably better to be 100% explicit: "I am invoking my right to speak to an attorney" (as opposed to just saying you want to do something)

This is the advice I've heard before. Explicitly state you're exercising your right to remain silent and your right to speak to an attorney. There was some sort of precedence for it being important in a particular instance though I can't recall what the story behind it was.

The whole ordeal would still be kafkaesque and cruel even if he had been guilty. I'd rather be a dog in a shelter than a prisoner awaiting trial in Texas.

I see that more of an indignation of a completely defunct judiciary of New Mexico. The airline maybe expected more due diligence too but it is still no excuse they identified him wrongly of course.

I had to look up what "kafkaesque" means [1]

[1]: https://www.youtube.com/watch?v=wkPR4Rcf4ww

Your right to remain silent only applies to statements made to police and more specifically, those statements being used in court. You don't have a right to refuse to answer a judge, for example.

You also don't have a right to refuse to answer a police officer generally, such as when they're asking you questions as part of booking you (do you have health conditions they need to know about, for example), and furthermore, during (say, a threshold inquiry or administrative detention) police are legally allowed to treat you refusing to answer them as guilty behavior.

To be clear, in very simplified layman's terms: threshold inquiry = "Hi there, can I ask you a few questions?" and administrative detention = a traffic stop, or "Hi there, come over here, I have some questions to ask you." The primary difference between TI and AD is that in a TI the police ask, and in AD, they order. If you're being ordered to do something, yes, You Are Being Detained, and no, you are not Free To Go. IANAL, etc etc and this shit is annoyingly complex, so please do your own research, folks.

Kafkaesque....try this on for size: thanks to the Berghuis v Thompkins USSC ruling in 2010, it is no longer sufficient to remain silent. You now have to specifically state you wish to remain silent when you are Mirandized.

I wish I were making this up. The court flipped Miranda on its head almost completely. Prior to v Thompkins, the state had to prove, with high standard of evidence, that you had willingly waived your right to remain silent. Now remaining silent isn't enough...and aying anything is taken as an immediate implied waiver.

https://en.wikipedia.org/wiki/Berghuis_v._Thompkins

I am, in fact, a lawyer. Please consult a criminal attorney as you have no idea what you are talking about. HN is not a place for lawyer wannabes to make incorrect assertions about the law.

At the very least, please refer to this helpful reference from the ACLU, who are also staffed with actual lawyers who know what they’re talking about: https://www.aclu.org/know-your-rights/stopped-by-police

I bet he’s a good programmer though.

> HN is not a place…

However, HN is a place where we prefer to explain why someone (or something) is wrong instead of just saying that they are wrong with no further justification.

I find the justification comes in the first sentence?

At the very least I’m more likely to believe the unqualified assertion from a lawyer.

I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving, would you like advice on anything?

Is isn’t it hard to weave underwater? What kind of materials do you actually use for that?

But seriously, most people that aren’t a lawyer are very likely to IANAL on the internet, the ones claiming to be one (especially on HN) are more likely to actually be.

I’d need some research to back that up, but since I am lazy I’m going to go with my gut on this.

More like: I'm an astronaut with a degree in nuclear physics and a minor in underwater basket weaving and while I cannot give you personalized advice I can suggest reviewing this general information produced by professionals that are interested in this cause: insert link here.

They identified as a lawyer. Explaining what you’re asking could be construed as offering advice on the Internet, which is potentially perilous for their ongoing livelihood. That’s not unique to the law, either, and is common in licensed professions where the license permits you to wield your knowledge at great risk to another (i.e., a physician).

I, for one, am glad otterley pointed it out. It’s an effective caution and prompted me to consider it critically. Given the OP cited case law and therefore sounds somewhat informed, I can understand the urgency of the caution, and I think otterley is (skillfully) balancing that caution against their ongoing responsibilities due to what I’m telling you.

Didn't you hear? On HN, some anonymous commenter claims they're something and we all just believe it with absolutely zero evidence.

That ACLU flyer is wildly out of touch with reality.

"You have the right to remain silent during a traffic stop." Yeah. Sure. You try that and let me know how it works out for you...after your car has been disassembled, all its upholstery ripped, and put in impound. After you are released from jail exactly 47.9 hours later, or charged with "interfering with the duties of a police officer" or "obstruction of justice" or "causing a public disturbance (which may or may not be dropped by the DA. Or thrown out at your hearing the next afternoon, by the judge.)

"If your rights are violated while being arrested, take notes" - with what, exactly? The pen and paper the people who violated my rights gave me? These people live in a alternate reality.

The ACLU has no concept of what constitutes practical advice for dealing with abusive police or the issues the vast majority of Americans face when stopped by an officer...like ending up in jail and missing work the next day, your car destroyed, and being summarily fired for failing to show.

Congrats! You are now unemployed, with an arrest record, probably your name in the newspaper police blotter, and a bunch of legal expenses from the trumped-up charges.

But hey, you followed the advice of an organization that will do absolutely nothing to help you after you followed their instructions and it caused you to end up unemployed, in debt to an attorney, with no wheels...then homeless because you missed your rent.

I don't think a single person at the ACLU has ever had to worry about having enough money to buy groceries, lived one paycheck away from missing rent, or worked a job where if they didn't show up for a shift on time, they were fired.

IAAL but this is not legal advice.

You’re mixing up a number of distinct concepts and problems. The ACLU’s advice is not meant to insulate you from lawful investigatory procedure. It’s meant to help minimize the likelihood that you will be convicted of a crime and to maximize the likelihood that unlawfully-obtained evidence will be suppressed at trial.

They say in the U.S., “you can beat the rap, but you can’t beat the ride.” This is true. You can assert your rights, but it’s best not to interfere or say anything other than “I do not assent to search” during the initial encounter. But you might be arrested, taken to jail, etc. Does it suck? Yes. But if I have no other choice, I’d rather spend a week in local lockup while everything gets cleared up than a year or more in state prison (and potentially the loss of other rights afterwards) because I got convicted of a crime.

Sometimes there is just no way out of a bad police encounter here. I wish there was, but the best we can do as a society is vote to change the laws around policing.

Finally, keep in mind that your perspective may be distorted by the news, in a sort of reverse survivorship bias. For every instance of police abuse during an encounter, there could be 10 or 100 where asserting one’s rights leads to no dramatic episode at all, and where the ACLU’s advice led to a conflict-free outcome. You don’t have the full picture, and it’s best not to draw conclusions with certainty if you’re not an expert. (Even experts usually temper their analyses.)

I'm not a lawyer but I've studied criminal law, am generally anti-cop and really sympathize with all the "don't talk to cops" videos and pamphlets out there. I understand that mens rea or premeditation can be argued and proven by a single stray comment you make to police.

However there's always been a big gap for me because, I mean, obviously there are some times where it makes sense to talk to police.

* The cops knock at your door, your neighbor has been murdered, were you at home last night and did you hear anything? And you were and you did but if you go all ACLU and say nothing while carefully keeping the cops out of your home, you're withholding information that might catch the real killer and in any case now the cops might be a lot more interested in you.

* The cops want to search your trunk at a traffic stop. If you hand them your keys that can be interpreted as consent. However if you don't, it's obvious they will drag you out of your car and beat you, take your keys, maybe plant some drugs or a gun because you got all uppity, and lie about it all later. So why not just hand the keys over and save yourself the trouble?

Etc. I feel like all the pamphlets and so on don't really get into these real situations.

> However if you don't, it's obvious they will drag you out of your car and beat you, take your keys, maybe plant some drugs or a gun because you got all uppity, and lie about it all later

Here we go again with that troubling word at HN: “obvious.” Best to strike that from your vocabulary; things you might think as obvious both rarely are so, and often much more complicated than you think.

What you’re describing is a situation that does sometimes happen in the worst cases, but by no means is it normal or frequent relative to the number of ordinary police encounters every day. These episodes make the news because they are out of the ordinary (“newsworthy”). If they happened at every stop, they wouldn’t be reported in the news.

Do these things happen? Sure, and they are awful. But they are by no means standard procedure and they are unlikely to happen to you. And if it does, lawyer up right away.

> Here we go again with that troubling word at HN: “obvious.” Best to strike that from your vocabulary.

My fault for sloppy wording. I was supposing for the sake of the hypothetical that the police made it obvious to you personally that they would attack you if you fail to comply.

In any case the ACLU-type advice of "stay silent and don't consent to anything" assumes some strange middle ground, where the cops in front of you are hostile enough to be actively fishing for something to arrest you for, but not hostile enough to just beat you, plant stuff and lie. And, further, that I, a random person who rarely deals with the cops, will be able to correctly sense what sort of encounter I'm having, against police who do this dozens of times a day, who are very scary, and who might be specifically trying to trick me.

Or just to rephrase what you said, the ACLU-type advice is great if you're the sort of person for whom awful police encounters are unlikely and who can lawyer up right away if things go wrong.

And that decision was in 2010 before Kavanaugh replaced Kennedy and Barrett replaced Ginsburg. It isn't going to be getting better any time soon.

That decision does not say what the commenter thinks it says. It says that if you start silent and then start talking, your earlier silence does not prevent your later statements from being used as evidence. It does not say that you can’t continue to remain silent or refuse to testify against yourself.

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