This is part 2 of our series of articles on how we choose to interact with law enforcement. This is not legal advices, and you should consult a qualified lawyer for legal advice. We advise following all applicable laws and customs in any applicable jurisdiction.
III. Gaining Psycological Leverage
We start an encounter by signalling to the officer we are not a physical threat. We also immediately begin to use strategies to signal to the officer that there will be little upside in continuing to detain us.
We strongly believe that conscious and unconscious bias plays a role in all human interactions. Humans generalize from stereotypes and past experiences because this has been a successful evolutionary survival strategy. Unfortunately, this has also given rise to prejudice, which in law enforcement can manifest itself as racial and class bias. Moreover, we believe law enforcement officials, especially at the street level, are perceptive of power structures, and will treat people they perceive as having social, economic or political power in a favorable manner.
When an encounter has elevated to a situation where we are not free to leave, we attempt to subtly signal to the officer that not only are we not physically threatening, but that we also possess knowledge, education and social status such that it is in the best interest of the officer to allow us to leave.
Above all else, composure sends a strong signal to the officer. Acting nervously strongly suggests the officer has the upper hand, and moreover suggests there may be something to hide. Law enforcement clearly understands and cultivates a power differential where nervousness is entirely natural, so much so that the lack of nervousness stands out and can be very disarming to law enforcement. Confidence, without cockiness or excessive jovialness will lead the officer to perceive that you have greater power in the interaction than the average person.
Some believe that belligerent behavior is a signal of power. It is not and does not serve people well in any interaction. Calmly asserting rights is empowering. Yelling, swearing, name calling and any uncivil behavior signals fear and lack of control, the opposite of what you want to project. In contrast, calmly but firmly asserting rights, gives you leverage.
2. Knowledge of the Law
We use legally recognized terms whenever appropriate. Terms such as "justified stop" (also know as a "Terry Stop"), "protective pat down", "probable cause", signal an understanding of the law, and also signal social status.
3. Knowledge of the Police
Immediately upon encounter we will look at the officer's name and attempt to identify any rank. We will try to do this quickly and non-overtly. Uniformed officers will often have a name plate and rank insignia on their uniform. It's worth the five minute exercise of familiarizing yourself with basic ranks of your local police.
If we can determine the officer's rank (almost always an "officer" or Sergeant) we will use the rank while addressing the officer, such as "Yes, Sergeant". We prefer not to address law enforcement as "sir" or "mame" as we do not address other people with such formality in our lives, and prefer to use rank titles instead.
In the encounter, we do not initially use the officer's name. The key to effective use of the name is to ensure that you maintain normal eye contact the officer and do not overtly look down at the officer's name tag again. While maintaining normal eye contact, we do not lock eyes. We want to appear to be very present with the officer, but neither hostle nor frightened.
We will then use the officer's last name strategically in the conversation at a key point. "Officer Rogers, we are going to leave now, as we assume that you aren't legally detaining us." Often people will use a police officer's name, as an unconscious intimidation technique, but invariably break eye contact to look at the officer's name plate immediately before using the name. Police officers are not intimidated by this in the least because it happens all the time. However, when someone simply uses their name without any type of overt looking at their name tages, it can be very disarming, especially if you have already established a sense of composure and professionalism with the police officer. This momentary shift in power, used at a strategic point, can give you a momentary advantage, and that can be crucial.
4. Responding to Questions
How to respond to questions is simple. Do not respond to questions. Politely ignore the question and ask why are you being detained. Once the officer has answered, continue to politely ignore questions. If the officer does not have probable cause for arrest already, saying nothing will not create probable cause, while giving any answers to questions may do so. Periodically re-new your question of whether you may now leave, and again ask for a clear response from the officer that you continue to be legally detained.
In a car, once you have been pulled over and have provided your identification (as you are legally required to do for any justified stop) avoid answering questions, and instead respond to most questions with "Officer, could you tell me why you have stopped me." The officer will typically ask "do you know why I have stopped you?" Rather than provide any answer, we simply politely respond with our question. In all likelihood the officer will have a justification for the stop.
In a car stop, we have slightly different risk analysis than during other encounters. If we are absolutely confident we have no other infractions the officer could discover we may engage in some conversation depending on what the officer has said. For example, there may be some moving violation infractions that you can avoid a ticket with an honest explanation. We were once pulled over for not having our lights on, in a new car. Explaining the car was new, and the lights appeared to be on from the inside, we avoided the ticket.
However, no matter what the facts are, we will never consent to a search of the car. We believe is a disservice to ourselves and every other citizen. If the officer makes any request to waive a right, such as a request to step out of the car "Would you mind stepping out of the car", we will decline. If the officer says, please step out of the car, we will ask the clarification, "Officer, I would prefer to stay in the car. Are you legally complying me to step out of the car?"
IV. What not to do
This video could be a case study on how not to interact with the police. Note, the suspects could have simply walked away from this encounter. The police conduct textbook questioning. The suspect invites a frisk by putting his hands in his pockets after being told not to do so. He fails to object to the search, although we believe the frisk was likely justified. Note, however, the frisk becomes a search when the officer feels a bag in the suspect's pockets. This may have exceeded the authority of a pat down frisk, but this is not clear, because contraband found during a frisk is admissible. In any event, this is a felony arrest, and it is likely this will result in a guilty pleas for a lesser crime.
V. Further Resources.
A short video from the ACLU: What to do if you are stopped by the police