Should We Just Follow Orders? Rules of Engagement for Resisting the Police State

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John W. Whitehead, Founder, the Rutherford Institute

John W. White­head, Founder, the Ruther­ford Insti­tute

Let your mot­to be resis­tance! resis­tance! Resis­tance! No oppressed peo­ple have ever secured their lib­er­ty with­out resistance.”—Abolitionist Hen­ry High­land Gar­net

The per­ils of resist­ing the police state grow more cost­ly with each pass­ing day, espe­cial­ly if you hope to escape with your life and prop­er­ty intact. The thing you must remem­ber is that we’ve entered an age of mil­i­ta­rized police in which we’re no longer viewed as civil­ians but as ene­my com­bat­ants.

Take, for exam­ple, Mary Eliz­a­beth Van­den­Berg who was charged with dis­turb­ing the peace, a crime pun­ish­able by up to 93 days in jail and a $500 fine, for dar­ing to vocal­ize her frus­tra­tions over a traf­fic tick­et by read­ing a pre­pared state­ment to the court clerk and pay­ing her $145 traf­fic tick­et with 145 one-dol­lar bills. Van­den­Berg was also hand­cuffed, tasered and pep­per sprayed for “pas­sive­ly” resist­ing police by repeat­ed­ly stop­ping and talk­ing to them and stiff­en­ing her arms. The inci­dent, filmed by VandenBerg’s broth­er, is now the sub­ject of a law­suit.

Zachary Noel was tasered by police and charged with resist­ing arrest after he ques­tioned why he was being ordered out of his truck dur­ing a traf­fic stop. “Because I’m telling you to,” the offi­cer replied before repeat­ing his order for Noel to get out of the vehi­cle and then, with­out warn­ing, shoot­ing him with a taser through the open win­dow. The encounter, record­ed with a cell phone by Noel’s friend in the pas­sen­ger seat, offers a par­tic­u­lar­ly chill­ing affir­ma­tion of how lit­tle recourse Amer­i­cans real­ly have when it comes to obey­ing an order from a gov­ern­ment offi­cial or police offi­cer, even if it’s just to ask a ques­tion or assert one’s rights.

Eigh­teen-year-old Keivon Young was shot sev­en times by police from behind while uri­nat­ing out­doors. Young was just zip­ping up his pants when he heard a com­mo­tion behind him and then found him­self struck by a hail of bul­lets from two under­cov­er cops. Despite the fact that the offi­cers mis­took Young—5’4,” 135 lbs., and guilty of noth­ing more than tak­ing a leak outdoors—for a 6’ tall, 200 lb. mur­der sus­pect whom they lat­er appre­hend­ed, the young man was charged with felony resist­ing arrest and two counts of assault­ing a peace offi­cer.

What these inci­dents make clear is that any­thing short of com­pli­ance will now get you charged with any of the grow­ing num­ber of con­tempt charges (rang­ing from resist­ing arrest and inter­fer­ence to dis­or­der­ly con­duct, obstruc­tion, and fail­ure to obey a police order) that get trot­ted out any­time a cit­i­zen voic­es dis­con­tent with the gov­ern­ment or chal­lenges or even ques­tions the author­i­ty of the pow­ers that be—and that’s the best case sce­nario. The worst case sce­nario involves get­ting probed, poked, pinched, tasered, tack­led, searched, seized, stripped, man­han­dled, arrest­ed, shot, or killed.

So what can you real­ly do when you find your­self at the mer­cy of law enforce­ment offi­cers who have almost absolute dis­cre­tion to decide who is a threat, what con­sti­tutes resis­tance, and how harsh­ly they can deal with the cit­i­zens they were appoint­ed to “serve and pro­tect”? In oth­er words, what are the rules of engage­ment when it comes to inter­act­ing with the police?

If you want to play it safe, com­ply and do what­ev­er a police offi­cer tells you to do. Don’t talk back. Don’t threat­en. And don’t walk away. In oth­er words, don’t do any­thing that even hints at resis­tance.

Keep in mind, how­ev­er, that this is not a fail-safe plan, espe­cial­ly not in an age where police offi­cers tend to shoot first and ask ques­tions lat­er, often­times based only on their high­ly sub­jec­tive “feel­ing” of being threat­ened, and are rep­ri­mand­ed with lit­tle more than a slap on the wrist. Indeed, the news is rid­dled with reports of indi­vid­u­als who didn’t resist when con­front­ed by police and still got tasered, tack­led or shot sim­ply because they looked at police in a threat­en­ing man­ner or moved in a way that made an offi­cer fear for his safe­ty.

For exam­ple, Levar Edward Jones was shot by a South Car­oli­na police offi­cer dur­ing a rou­tine traf­fic stop over a seat­belt vio­la­tion as he was in the process of reach­ing for his license and reg­is­tra­tion. The troop­er jus­ti­fied his shoot­ing of the unarmed man by insist­ing that Jones reached for his license “aggres­sive­ly.”

If com­pli­ance isn’t quite your cup of tea—and we’d be far bet­ter off as a nation if we were far less compliant—then you’ve got a few more options rang­ing from legal-but-sure-to-annoy-an-offi­cer to legal-but-it-could-get-you-arrest­ed to legal-but-it-could-get-you-shot.

If this is war—and a good case could be made for the fact that the gov­ern­ment is indeed wag­ing a war on the Amer­i­can citizenry—then the tac­tics I’m about to out­line could be con­sid­ered non­vi­o­lent gueril­la war­fare, using what­ev­er strate­gic, legal, cre­ative and non­vi­o­lent means are avail­able in order to out­ma­neu­ver an opponent—in our case, the Amer­i­can police force—whose lan­guage is the lan­guage of force.

To begin with, and most impor­tant­ly, Amer­i­cans need to know their rights when it comes to inter­ac­tions with the police, bear­ing in mind that many law enforce­ment offi­cials are large­ly igno­rant of the law them­selves. In a nut­shell, here are your basic rights when it comes to inter­ac­tions with the police as out­lined in the first ten amend­ments to the U.S. Con­sti­tu­tion:

You have the right under the First Amend­ment to ask ques­tions and express your­self. You have the right under the Fourth Amend­ment to not have your per­son or your prop­er­ty searched by police or any gov­ern­ment agent unless they have a search war­rant autho­riz­ing them to do so.  You have the right under the Fifth Amend­ment to remain silent and not incrim­i­nate your­self.

You have the right under the Sixth Amend­ment to request an attor­ney. Depend­ing on which state you live in and whether your encounter with police is con­sen­su­al as opposed to your being tem­porar­i­ly detained or arrest­ed, you may have the right to refuse to iden­ti­fy your­self. Present­ly, 26 states do not require cit­i­zens to show their ID to an offi­cer (dri­vers in all states must do so, how­ev­er).

Know­ing your rights is only part of the bat­tle, unfor­tu­nate­ly. The hard part comes in when you have to exer­cise those rights in order to hold gov­ern­ment offi­cials account­able to respect­ing those rights.

As a rule of thumb, you should always be sure to clar­i­fy in any police encounter whether or not you are being detained, i.e., whether you have the right to walk away. That holds true whether it’s a casu­al “show your ID” request on a board­walk, a stop-and-frisk search on a city street, or a traf­fic stop for speed­ing or just to check your insur­ance.

As I point out in my book A Gov­ern­ment of Wolves: The Emerg­ing Amer­i­can Police State, if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, espe­cial­ly when you’re being con­front­ed by some­one armed to the hilt with all man­ner of mil­i­ta­rized weapon­ry and gear—then for all intents and pur­pos­es, you’re essen­tial­ly under arrest from the moment a cop stops you.

Still, it doesn’t hurt to clar­i­fy that dis­tinc­tion, as Kahler Nygard learned. Nygard was threat­ened with arrest for fail­ing to com­ply with an order by TSA agents to under­go addi­tion­al screen­ing after fly­ing with no inci­dent from Min­neapo­lis to his final des­ti­na­tion in Den­ver. It turns out that Nygard, at one time a vocal crit­ic of the gov­ern­ment, had been placed on a spe­cial list requir­ing him to under­go extra air­port screen­ing. When air­port offi­cials real­ized that they had failed to car­ry out the addi­tion­al screen­ing pri­or to Nygard’s depar­ture, they attempt­ed to cov­er their mis­take by screen­ing him once he land­ed. To the annoy­ance of the gov­ern­ment agent, Nygard—who filmed the entire encounter—repeatedly asked the agent whether he was being detained or not. Once he deduced that the TSA had no legal ratio­nale for detain­ing him, Nygard walked away with­out inci­dent. The encounter might have end­ed far dif­fer­ent­ly had a police offi­cer been stand­ing near­by, how­ev­er.

Anoth­er impor­tant take­away from Nygard’s expe­ri­ence is to record your encounter with police. While tech­nol­o­gy is always going to be a dou­ble-edged sword, with the gad­gets that are the most use­ful to us in our dai­ly lives—GPS devices, cell phones, the internet—being the very tools used by the gov­ern­ment to track us, mon­i­tor our activ­i­ties, and gen­er­al­ly spy on us, cell phones are par­tic­u­lar­ly use­ful for record­ing encoun­ters with the police and have proven to be increas­ing­ly pow­er­ful reminders to police that they are not all pow­er­ful.

No mat­ter what indi­vid­ual police offi­cers might say to the con­trary, mem­bers of the pub­lic have a First Amend­ment right to record police inter­ac­tions, as the Jus­tice Depart­ment rec­og­nized in a 2012 mem­o­ran­dum acknowl­edg­ing that “record­ing gov­ern­men­tal offi­cers engaged in pub­lic duties is a form of speech through which pri­vate indi­vid­u­als may gath­er and dis­sem­i­nate infor­ma­tion of pub­lic con­cern, includ­ing the con­duct of law enforce­ment offi­cers.”

That said, there may still be con­se­quences for film­ing the police, as Fred Mar­low learned the hard way. Mar­low was charged with inter­fer­ing and resist­ing arrest, and fined $5,000 for dar­ing to film a SWAT team raid that took place across the street from his apart­ment. Mar­low was asleep when he heard what sound­ed like “mul­ti­ple bombs blast­ing and glass break­ing.” Rush­ing out­side to inves­ti­gate, Mar­low filmed police offi­cers dressed in army green cam­ou­flage stand­ing beside an armored vehi­cle, in the process of car­ry­ing out a SWAT team raid to serve a search war­rant (more than 80,000 such raids take place every year in the U.S. for such rou­tine police pro­ce­dures as serv­ing search war­rants). Ordered to return inside or face arrest for inter­fer­ence, Mar­low explained that he was on his own prop­er­ty and could be out­side. He was sub­se­quent­ly arrest­ed.

One pop­u­lar alter­na­tive to cit­i­zens film­ing police encoun­ters is hav­ing the police wear body cam­eras, which have been proven to decrease the num­ber of use-of-force inci­dents and cit­i­zen com­plaints when used prop­er­ly. Unfor­tu­nate­ly, giv­en that they can be turned off as eas­i­ly as they are turned on, these devices are also ripe for abuse, not to men­tion the fact that they are pri­va­cy-threat­en­ing, rov­ing exten­sions of the sur­veil­lance state whose cam­eras are con­ve­nient­ly point­ed at us, not them.

Clear­ly, the lan­guage of free­dom is no longer the com­mon tongue spo­ken by the cit­i­zen­ry and their gov­ern­ment. With the gov­ern­ment hav­ing shift­ed into a lan­guage of force, “we the peo­ple” have been reduced to sus­pects in a sur­veil­lance state, crim­i­nals in a police state, and ene­my com­bat­ants in a mil­i­tary empire.

In such an envi­ron­ment, as every resis­tor from Mar­tin Luther King Jr. and on down the line has learned, there is always a price to be paid for chal­leng­ing the sta­tus quo. Then again, the price for not chal­leng­ing the sta­tus quo is even worse: out­right tyran­ny, the loss of our free­doms, and a total­i­tar­i­an regime the likes of which the world has nev­er seen before.