David Nathanson
🧵 So I try to do semi-regular #STFUfriday posts reminding people to exercise their right to remain silent and to have a lawyer present for custodial questioning.
Every once in a while, I get comments to the effect of, “that doesn’t work for people of color.”
Whether people of color can safely invoke their Miranda rights is a sensitive and case-specific discussion probably not suited for a social media discussion. But I’ll try. /1
David Nathanson
I’ve given know-your-rights presentations to lots of black and brown teens. About half my adult clients are people of color. I listen when they tell me that my description of what the law says doesn’t match the real world. It makes them pretty angry. They *should* be able to invoke their Miranda rights and not endanger themselves.
In those presentations, we talk it through. Here are some of the basic rules we’ve settled on.
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David Nathanson
First, if you’re in an interrogation room, something bad is already happening. The chance that you will talk your way out of it and be let go is far outweighed by the chance that your words will be used to convict you. Demand a lawyer. It will likely result in you being held until you can be brought to court and given a lawyer and a bail hearing. But the pain of even a weekend in jail is FAR outweighed by the pain of years in prison if they convict you using your own words against you. /3
David Nathanson
Second, street encounters are more common, more difficult to navigate, and potentially dangerous. The first goal is to be physically safe. Use your common sense about what might anger this particular cop. They differ. /4
David Nathanson
Third, kill them with politeness. Try putting “I’m sorry officer but …” or similar before every assertion of your rights that I suggest in my #STFUfriday posts. Keep in mind you are not entitled to Miranda warnings if you are not in custody (custody generally equates to not free to leave). But nothing prevents you from asserting your rights even if you are not in custody. /5
David Nathanson
Fourth, it’s often not safe to record the police yourself even if it is legal in your jurisdiction. If it seems like it isn’t safe, try to make a mental note of who is around, whether there are cameras, where you are, and the lighting and weather conditions.
If you can see the cop’s name, badge number, and vehicle number, great. Asking for it during the interaction may be unsafe. You may want to ask a bystander to call a family member or lawyer for you. Use your own judgment. /6
David Nathanson
Fifth, if you are charged with a crime, write down your memory of the interaction and give it to your lawyer. DO NOT GIVE IT TO ANYONE ELSE.
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David Nathanson
Sixth, if you are not charged with a crime or the charge is dismissed and there was misconduct by the cop, carefully consider filing a complaint. You may not think this does anything because police will side with the cop. It does matter. If I can obtain the internal affairs file of a cop with fifteen dismissed misconduct complaints, I may be able to use that in cross-examining him in a later case. You could be helping someone else. Again, it may not be safe to file a complaint. Your call. /8
David Nathanson
There are also plenty of people of color who are brave enough to stand their ground and demand their rights. They make it easier for all of us to do the same when faced with the coercive, armed power of the state. I thank them for that.
Similarly, there is also the dynamic of normalizing the assertion of rights. If cis white people regularly assert their rights, one can at least hope that it creates a culture where asserting your rights doesn’t endanger people generally, including POC. /end
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