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Comment by mjhoy | Hacker News Reader

> Eckert, protesting all the while, says he asked to make a phone call but was told that he had no right to do so because he hadn’t actually been arrested.

Had to read that a few times to make sure.

What were his rights at that moment?

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"Am I under arrest?" "Am I being detained?" "Than am I free to go?"

Many of us know what rights we have when we encounter law enforcement, but many do not. I suppose therein partially lies the author's point -- that those who aren't as well educated or might not have access to legal advice are at a disadvantage.

So the let's suppose the cops answer "You're not detained. You're not free to leave.". What do you do now?

Then you're screwed, cause you're dealing with cops that don't care about the actual law and just want to nail you to the wall.

The standard for a detention is that a reasonable person would believe they weren't free to go. So in your hypothetical, the fact that the officer says you're not detained doesn't matter. If he says you're not free to leave then you're detained. From that point, other than identifying yourself, you should not answer any questions and ask to speak with an attorney.

But that's exactly what happened:

1) He was in handcuffs, so apparently not free to go.

2) Police told him he can't contact a lawyer because he's not arrested.

3) Police forced him to undergo a medical procedure (still, without being "arrested")

I'm not sure if "not answering any questions" would have helped the victim in that case.

I suppose that's why they paid him $1.6M.

I'd want to call my insurance company to make sure they cover forced penetration. Nobody wants a high out-of-pocket bill for getting two involuntary enemas and a colonoscopy.

Also starts the paper trail for the lawsuit.

3 enemas but who's counting

They seem to be doing that more often lately. I guess you can sue them, but it's still going to be your word against theirs.

I think the typical answer to the question is silence. The cop does not say anything at all, and just pretends that he did not hear the question.

I think I'd have to go along with it, sue for wrongful arrest and so on later. You might get away with fighting back if you could show that they were going to rape you, as in this case. There's some case law that suggests you can resist if the alternative is serious injury or death, as per the rules pertaining to self-defence.

But I'd hate to wager my freedom on it - case law isn't always consistently followed and will vary depending on where you are. And really, how can you prove it? You get to court and it's their word against yours, and the first strike against you is that they're in uniform and you're not.

On the other hand, when the alternative is rape... would I rather be dead than raped? Can't say ahead of time. I'd rather be dead than go to jail. If I would rather be dead than raped, then I can fight them, and if I lose the court case I can still kill myself and escape jail that way.

> You might get away with fighting back if you could show that they were going to rape you, as in this case.

There is an important difference between "get away with it, legally", and "get away with it, without being shot."

That happened to me after being stopped by the police in Tokyo. They wanted to search my bag, I refused. Since I wasn't a suspect of anything and they had no warrant, they couldn't actually take my bag and search it without my consent. I asked if I was arrested, they said no, I asked if I could then leave, they said no.

Eventually they asked for "backup", even though I wasn't offering any physical resistance (I wasn't getting arrested after all), and then there were 5 officers grilling me as to why I was refusing an illegal search. I resisted for over 1 hour, then finally I relented and "consented" to the search.

He, and several of the other examples, were in handcuffs when taken to these hospitals. If that's not being detained, I don't know what is.

That seems like an interpretation of the situation that requires a lot of assumptions beyond the bare facts.

The police were acting well outside the law, and so I don't think knowing his rights would have helped this man.

Which is why they awarded him $1.6 million and this is written up in the NYT.

I don't follow the logic here. The claim is that he could have somehow avoided this situation by acting differently.

The fact that the actions of the police were later determined to be unlawful, isn't evidence for this claim.

So that's what repeated anal rape goes for these days?

> Many of us know what rights we have when we encounter law enforcement,

"Law enforcement" is also trained to encourage you not to assert those rights. Most people don't deal well with being shouted at by a guy with a gun, so police are trained to get angry and shout-y right away. How long would you spend reasoning about your rights when faced with an angry guy with a gun, with no witnesses around?

Judging by his previous conviction he might have been on probation/parole which has a whole different set of rights than a truly "free" individual

Even felons have to say 'yes' to anal rape if there is not a valid warrent. Parole or not, you can't just rape someone 6 or seven times.

Thus the magic phrase: "Am I being detained? Am I free to leave?"

While this sounds like very useful advice in general, I wonder if uttering this magic phrase would actually have resulted in this man from being released? The facts of the case suggest that these actions were not done under the guise of a voluntary search/interview, which is what these phrases are generally designed to deal with.

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