Know Your Rights: Do You Have to Talk to Cops?

In the second episode of our Know Your Rights series, Leah and Melissa sit down with NYU Law’s Daniel Harawa to break down what you do—and don't—have to say when law enforcement stops you. They cover the difference between being seized and a consensual encounter, and the crucial distinction between knowing your rights on paper and using your judgment to stay safe in the moment. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cle Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/ Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t& Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social For a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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• 0:00Leah Litman?

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• 3:13Leah Litman?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This episode is part of a summer bonus series that we are calling Know Your Rights. As I explained on the very first Know Your Rights bonus, we wanted people to be more informed about what their rights are to help them claim the Constitution, but also to help people be safe during upcoming protests and election season. And this time, the right or rights we're going to be discussing is the right not to answer questions asked by law enforcement. And to help us go through this important question is my NYU colleague, Daniel Harawa. Daniel is a professor of law and the director of the Federal Appellate Clinic at NYU, where his work focuses on race and the criminal legal system. So, welcome to the show, Daniel.

• 3:58Speaker 05

  I am so happy to be here. Thank you for having me.

• 4:01Leah Litman?

  Of course. So maybe we can just start with the basics, and that is if a police officer approaches me on the street, do I have to stop?

• 4:10Speaker 05

  So the answer is no, right? If the police officer approaches you, you haven't done anything wrong. You are totally free to walk away, go about your business, and hopefully, the police officer will leave you alone. Now, whether or not they will, that's a different question, but yes, you can walk away.

• 4:28Leah Litman?

  I'm sorry. Wait, can I walk away? Can a melanated person walk away?

• 4:34Speaker 05

  So I guess there are your rights in theory and your rights in practice, right? And so I guess one thing that's important for this entire conversation to understand is that there are your rights on paper, and then that doesn't necessarily mean that's the wisest thing for you to do when encountering the police on the street. And so everything, this whole conversation should be understood in that light. And so, you know, if a police officer walks up to you and asks to talk to you, you can say no. You can politely ask, "Am I free to leave? Can I walk away?" And the officer should give you an answer, but the safer course is probably acknowledging them and then walking away as opposed to just ignoring them outright.

• 5:09Leah Litman?

  All right. Are there any instances where a law enforcement officer could tell me, "Stop," and I could just keep walking without getting arrested? I mean, like, do I have to be pretty sure that I have not done anything wrong and like have witnesses around to make sure that that is exactly the case?

• 5:24Speaker 05

  If you are told to stop, you should probably stop because you don't have a good sense of why they're telling you to stop, right? So you may have ashed a cigarette, for example, even though you're not a smoker. And that could be littering in some states, and an officer could stop you for that reason. So you just don't know the basis for the command to stop. But once you do stop, you are seized under the Fourth Amendment, and there are a whole bunch of, there's a legal standard that applies there, and so there are protections that apply. And you should ask why you're being stopped, but I think the safest course is always to stop if you're being told to stop.

• 5:58Leah Litman?

  So you mentioned that there are certain legal protections that kick in if you have indeed been seized under the Fourth Amendment. And so I think that invites this question of, how is one to know if they are just being detained and seized or if the officer is merely talking to them in a consensual encounter? That is, how do you know if you've been seized within the Fourth Amendment's, meaning such that those additional protections apply?

• 6:27Speaker 05

  Yes. So I think the safest course, and probably the course everybody should adopt, is just asking whether you are seized when your police officer starts to talk to you. And that way, the officer will respond with either a reason for you being seized, "I stopped you because of X," or say, "No, I'm just here to chat." And if you're just there to chat, then you can stop the conversation and tell them you don't want to continue and walk away. And so I think the safest course is asking. But there are other signals or indicia of a seizure that can come up where, for example, if the officer has their hand on their gun or their handcuffs out or speaks in a threatening way. So there are all of these ways that officers can seize you without telling you, "I am stopping you for X reason."

• 7:10Speaker 05

  And so the tenor of the encounter really matters. There's no mathematical formula you can assign to it to show this rose to a seizure because he did X, Y, and Z. But if you feel like the tenor of the encounter is such that you can't leave, then there are things beyond words that can lead to one being seized.

• 7:28Leah Litman?

  So is that question of feeling like you are not free to leave? Like, do courts consider that in sort of a circumstantial or contextual situation? Like, is it different for Leah to feel that she cannot leave versus me feeling that I cannot leave?

• 7:42Speaker 05

  I would say yes. Some courts might say yes, too, but not all courts. So this is all about what's called the reasonable person standard under the Fourth Amendment. And so the courts ask whether a reasonable person in this position would have felt free to end the encounter and go about their business. Now, of course, Melissa, as a Black woman, you may feel differently when approached by police than Leah might when she is approached by police. And some courts might take that into account. Not all courts, a small minority of courts actually have said, "We can factor race into this analysis." But it is a reasonable person contextualized in that encounter whether they would feel free to leave. And so if you have particular sensitivities, for whatever reason, the law doesn't account for that. But hopefully, the law begins to account for race more and more, and I know there are advocates pushing for that.

• 8:27Speaker 05

  And so, because, I mean, that's the world we live in, where race does matter to police encounters, and so why shouldn't it matter for the law, too?

• 8:35Leah Litman?

  Would it matter if I were in a particular place? So if I were in a closed space, for example, where it didn't seem like there were obvious avenues for egress, or if I was at my workplace, for example, would that be a situation where I might not feel free to leave? And a court would recognize it?

• 8:51Speaker 05

  Well, whether a court would recognize it is a complicated question. So I think, taking a step back, the way the doctrine has evolved just doesn't actually take into account how most reasonable people would experience a police encounter, right? So let's say you're on the back of a bus. The doors are closed and police officers approach you. You literally cannot get up and walk past a police officer without shoving them. But a court said, well, that's not a seizure under the Fourth Amendment. And so the law has just evolved in a way that doesn't actually account for, I think, how most people would experience police. But if police are blocking you in, for example, if they have like cornered you in some way, if they're surrounding you, then that all should matter for a police encounter, whether

• 9:36Speaker 05

  or not a reasonable person would feel free to leave. It's just that what is reasonable has gotten so far from what I think the reasonable person experiences, that it may not be what you or I would intuit when thinking about what is reasonable.

• 9:50Leah Litman?

  Yeah, I mean, you mentioned, you know, the facts of United States versus Drayton. You know, that's the case where the armed police boarded a bus, you know, stood in the aisle, questioned passengers, and the Supreme Court said, oh, reasonable people, they would feel free to leave. You know, there's also, Melissa mentioned, the workplace, you know, INS versus Delgado, where armed immigration agents surround a factory and station guards at the exits while other agents are walking the floor. And the Supreme Court is like, oh, that was a consensual encounter, right? That wasn't a seizure. You reasonably would have felt free to leave. And so I think that kind of gives a sense about like, how high the bar is.

• 10:25Speaker 05

  Yeah, and I think part of the problem, Leah, is that the reasonable person's standard comes from a court that just will never be approached by police in this way, right? And so they just have, they have no reason to craft a standard that would capture the average experience of the person who is most likely to be stopped or questioned by police. And so the doctrine, like you said, it's such a high standard because the court doesn't care or can't identify with the average person who has to worry about police presence in their day to day life.

• 10:55Leah Litman?

  Yeah, I mean, this sounds like the comment that Justice Sotomayor made, you know, in talking about the court's decision in Noem versus Vasquez Perdomo, saying, look, I have some colleagues who just don't know what it's like to be a day laborer and potentially to be stopped and questioned, you know, on the basis of your job or color of your skin, et cetera. So I don't know if we should take this opportunity now to apologize to Brett Kavanaugh again for observing this, but you know, did want to-

• 11:19Melissa Murray?

  Wasn't very collegial, Leah, to acknowledge those.

• 11:22Leah Litman?

  Did want to draw that connection.

• 11:25Speaker 05

  Coach K.

• 11:26Leah Litman?

  Yeah. Since we've been alluding to this, or not alluding to, like, talking about the distinction between a seizure and a consensual encounter, you know, and you said additional legal protections kick in when you've been seized, I guess, can we kind of make it explicit? Or like, why does it matter whether there has been a seizure? Or like, what are the additional protections that kick in?

• 11:46Speaker 05

  Sure. So if police question you, or you have a conversation with police during a consensual encounter, you have, your Fourth Amendment rights haven't kicked in in any kind of way because you're volunteering, you're acquiescing to the police encounter. Once you have been seized, then a police officer has to have a certain level of suspicion to stop you, right? So they have to have reasonable suspicion that you committed some type of crime to engage in that encounter. And if they don't have that reasonable suspicion, and let's say they have some kind of evidence that they get from you and try to use it in court, then it's suppressed and they can't use it in a criminal case. Or if you find an enterprising lawyer who is willing to bring a civil case against that police officer, which there are all kinds of hurdles and expenses, which makes it really hard to sue for the run of the mill police encounter that may violate the Fourth

• 12:31Speaker 05

  Amendment, but it does, and it can lead to legal consequences. And so it's really important to understand and to ask the question, am I seized? Can I leave? That way, at least you have a sense of whether your rights have been violated, such that there is legal recourse on the back end.

• 12:47Leah Litman?

  Can I ask a question? I mean, again, this is, I'm just thinking, like, in the moment, you're not really thinking clearly, what if you decide to run from the police? Like, you haven't done anything wrong, you flee from the police. How does fleeing complicate things and make it harder for you?

• 13:03Speaker 05

  Please don't run, walk, and walk quickly. But running isn't great because-

• 13:09Leah Litman?

  Yeah.

• 13:09Speaker 05

  Yeah, like a brisk walk, power walk. Because the Supreme Court said in a case called Illinois versus Wardlow, that unprovoked flight in a high crime neighborhood can give rise to reasonable suspicion. Now, what is unprovoked flight? I mean, I think it's reasonable for a lot of people to see police and not want to encounter them, so it seems pretty provoked to me by their presence, but that's not what the court said. What is a high crime neighborhood? A black or a brown one, probably. But if you run from police and it's seen as unprovoked, and in certain neighborhoods, that can give rise to reasonable suspicion. So if you want to avoid the police by getting away, I just suggest walking at a quick clip as opposed to outright running.

• 13:51Leah Litman?

  So in law school, I remember a case called California versus Hodary D. And I think it kind of exemplifies the complexity of this whole question of what is a seizure? What is a consensual search? And then this overlay of, you know, what does it mean to leave the scene because you don't believe you are in a situation where you have to stay?

• 14:11Speaker 05

  Yeah, so, right, so if an officer tells you to stop and you don't stop, then you haven't acquiesced to the seizure, so you haven't been seized. And so it creates this really perverse world that if police approach you, like, the safest course is just to stop and kind of hope they don't have the requisite cause and then try to fight it out on the back end, which isn't a way to live in a society where you have affirmative rights, like, right? Like, you don't wait till your rights are violated to then figure out how to get recourse for the violation. But the court has created this world where, for the average person who encounters a police, that is the safest way to engage in the encounter.

• 14:47Leah Litman?

  Can we talk about some magic words that people can use in these circumstances? So setting aside the cases where someone tries to flee and transforms what might be an ordinary situation into a situation where they are now in the world where the Fourth Amendment doesn't apply. If you say, am I free to leave? What does that unlock? How does that change the nature of the interaction between you and the officer? And clarify the nature of it for purposes of the Fourth Amendment?

• 15:14Speaker 05

  Well, hopefully you get a straight answer, which you might not, right? Like, a police officer does not have to answer your questions. And so while good practice might be, am I free to leave? And the officer would tell you yes or no. The officer can avoid answering the question clearly, such that you still might not have a good sense of whether or not you are free to leave. Now, if an officer says, no, you cannot, then at that point, you know you have been seized, right? And at that point, the legal protections kick in, and the officer needs a certain level of suspicion, and so your Fourth Amendment rights have been triggered. If the officer says, you're free to go, then hopefully, and again, I understand this is complicated for, especially for people of color encountering police, that empowers

• 15:55Speaker 05

  you to then say, okay, then I'm exercising my right to walk away, understanding that in the real world, that could be a really dangerous decision, depending on the encounter that you face.

• 16:06Leah Litman?

  Yeah. So you mentioned that when you are seized, like, one additional right that kind of kicks in is the officers have to show that they have a sufficient basis to stop or seize you, right? That they have the requisite reasonable suspicion. Can we talk about maybe some other rights that also kick in once you've been stopped or seized? Or how other rights kind of interact with that? So you mentioned, for example, when it's just a consensual encounter, you don't have to answer questions that the police ask you. Now, let's say you have actually been seized, right? The officer has stopped you. They make it clear that you're not actually free to leave.

• 16:48Leah Litman?

  Do you have to answer questions at that point? And do you have to consent to a search, you know, of your person or anything that you have on you?

• 17:00Speaker 05

  Yeah, so it's, taking a step back, I think it's really important to note that even if you're in a consensual encounter, you can end that, or you're supposed to be able to end that encounter at any time, right? And so if you start talking to police and you no longer wish to engage, you can stop that encounter when you wish and walk away. Now, let's say you have been seized. You, generally speaking, don't have to answer any questions. And the best course, assuming you don't want to answer questions, is just say, I am not going to answer any questions, I'm invoking my right to stay silent. And a police officer can only frisk you if they have reason to believe that you are armed and dangerous. And so just because you've been stopped doesn't necessarily mean you can be frisked. A frisk is a very intrusive pat down, but it's not the same as a full blown search.

• 17:45Speaker 05

  And so I think it's important to kind of disentangle what happens during a stop, right? A stop and questioning, you don't have to engage. A frisk requires something else entirely. And so police officers shouldn't be searching you unless they have the requisite suspicion for that. And that's another point in the encounter that you can challenge on the back end as violating your Fourth Amendment rights.

• 18:09Leah Litman?

  Okay. So does someone who's been stopped have to share personal details like their name, where they live? How do states with, you know, stop and identify laws change the equation for how you interact with the police during one of these detentions or stops?

• 18:27Speaker 05

  Yeah, so some states, not all states, have stop and identify laws, which means if an officer lawfully stops you and asks for your name, you have to give them your name, your identifying information, or else that is a crime under that state's law. It's important to note that not all states have those laws. And so if you're in a state that doesn't have those laws, you don't even have to give the officer your name. It's also important to note that not all laws are the same. So to the extent you have one of those laws in your state, you want to have a sense of what is required of you under the law. It's an open question about how much information you have to give an officer. The only kind of clear answer right now is your name, assuming that's what the law says. But whether you have to give more than that

• 19:10Speaker 05

  is unclear under the law, but you shouldn't do more than what the law requires of you, right? And so that requires you, unfortunately, it's a state by state basis. So that requires you having an understanding of what your individual state law is in that particular scenario.

• 19:26Leah Litman?

  So suppose you were in one of those consensual encounters, you know, a circumstance where you haven't been stopped or seized, where you would say, I recently felt free to leave. And you, as you noted, you can do, decide to end the consensual encounter and walk away. You know, you said, am I free to leave? The officer says, yes. You say, OK, I'm going to be on my way. And you start walking. Can an officer just follow you? And if they do, like, at what point would that become, perhaps, a formal stop or seizure?

• 19:57Speaker 05

  Yeah, so if you're in a public street, an officer can follow you and might follow you, right? And so, and I guess at some point, they can follow you for such a long time that you may functionally feel like you aren't free to leave, and they may give rise to a seizure. But they'd probably have to follow you for a pretty long time in order for it to give rise to a seizure. And so if an officer starts to follow you, you probably want to obviously stay in a public place. Maybe you go into a public store or church or what have you, just to try and get off of the street. But so long as you're in a public space, an officer isn't required to walk away or can kind of follow you in that public space, at least for a certain amount of time before it will give rise to a seizure.

• 20:39Leah Litman?

  So you've already alluded to this a little bit, Daniel, but I want to invite you to say a bit more about what you've identified as a gap between how the law would determine what a reasonable person would do in certain circumstances and how people perceive their situations on the ground. Can you talk more about this gap and how it plays out in either escalating situations unnecessarily or maybe chilling the exercise of certain rights that people may have?

• 21:10Speaker 05

  Yeah, yeah. I always struggle with know your rights conversations because exercising your rights isn't always or maybe even usually the safest course of action for some people, especially Black and Brown people in the country. And so the fact that you have these rights, I mean, I want you to be alive tomorrow to exercise them again or to try to vindicate them once they've been violated. And so it's a really complicated conversation about when to exercise your rights or when you feel safe to exercise your rights. And the rights as they exist now don't fully capture most people's experiences with police to begin with, right? So we're in this world where the rights don't match what you or I might think of

• 21:54Speaker 05

  as a seizure when we're interacting with police. And then even if they did, we still might not feel comfortable exercising our rights based on the consequences that might flow from that. And so it's unfortunate that kind of compliance is often the best and safest course, despite the rights we all have under the Constitution. But that's a reality that I think is important to acknowledge, even as I think it's equally important that we all have an understanding of the rights that we do possess, such that if they are violated, we can hopefully do something about it.

• 22:28Leah Litman?

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• 25:35Leah Litman?

  Just in the spirit of additional variations on the themes we've been talking about, what about traffic stops? Obviously, if an officer turns on their flashing lights, I wouldn't say a reasonable person would feel free to leave, so that's a stop or a seizure. But then how are those potentially different, if at all, from stops on the street or a sidewalk, you know, as far as answering questions or whatnot?

• 26:02Speaker 05

  Yeah, so traffic stops are different in some ways because a police officer can always find a reason to stop you. The way that traffic codes are set up, I mean, if you drive for more than a block, you almost certainly commit some kind of, or an officer has reason to believe you have committed some kind of infraction. Maybe you took a hand off the wheel. Maybe you adjusted the music on your stereo. I mean, so police basically can find a reason to stop any car at any time. And the Supreme Court said it doesn't matter whether that stop is pretextual. It doesn't matter that the police actually stopped you because you're a Black man in a high-crime neighborhood, so long as they had a basis under the law to conduct the stop. And so, I mean, it would be a rare situation

• 26:46Speaker 05

  where police officers engage in a traffic stop where they don't have some lawful basis to stop you. And at the point that they stop you during the course of a traffic stop, they're allowed to ask you for identifying information because it's a crime not to drive without a license, for your registration, for your insurance. And so there's information you have to provide in the traffic stop situation that you just wouldn't have to provide necessarily on a sidewalk encounter. And so I think, unfortunately, more of the stops are just legal, like, they have more, they just are, it's easier to stop you. And you automatically have to provide more information the moment you're stopped and police pull you over.

• 27:23Leah Litman?

  So we've gotten a lot of

• 27:25Melissa Murray?

  Questions about this, certainly since the second Trump administration, maybe even more so after the Supreme Court announced its shadow docket decision in Noem versus Vazquez Perdomo. But are the rules different for non-citizens than it would be for a citizen? And within the category of non-citizens, is it different for people who are LPRs, lawful permanent residents versus others?

• 27:48Speaker 05

  Yeah, so I think this is something that's truly pernicious that this administration has done, where I think up until the most recent administration, I think everybody understood that the people protected by the Fourth Amendment were is everybody in the country, right? I don't think, I mean, there were a couple of district court decisions that were kind of off the wall about kind of whether you were here lawfully and kind of whether you had sufficient connections to the country in order to invoke Fourth Amendment protections. But I don't think it was all that contested, but as the Trump administrations want to do, they move something that was off the wall and then trying to put it on the wall and trying to say that it's something, there might be different protections for folks who are in the country and who are undocumented.

• 28:33Speaker 05

  I think we all should operate under the understanding that everybody has the same level of rights. Now, there are different rights at the border versus in the city. And so, but the rights shouldn't turn on the person invoking the rights. Whether different locations might raise different questions. But I do think what the administration is trying to do in trying to limit the Fourth Amendment rights of certain people is a new move and one that we should push back against forcefully, because I think that was just counter to most reasonable people's understanding of who the Fourth Amendment protects.

• 29:07Melissa Murray?

  So you've alluded to this sometimes as far as protecting rights at the back end, but I kind of want to expand on it and elaborate on it for a bit. You know, what should someone do if they believe their rights have been violated?

• 29:23Speaker 05

  Yeah, so first, if you can do it safely, I think you want to record the encounter, especially if you're protesting or you have reason to believe you'll be encountering police frequently. There are apps that will kind of like, where you can trigger it more quickly to start recording an encounter. Some apps are connected to civil rights organizations where it will send the encounter immediately to the organization. So you might want to consider whether or not you want to record the encounter. Again, you want to do it safely. And if an officer reacts negatively to recording the encounter, you obviously have to use your best judgment as to what will keep you safe. But I think keeping a record of the encounter is what you want to do kind of first. If you are arrested after the encounter, then obviously you want to let your lawyer know about the encounter, what happened.

• 30:06Speaker 05

  And then if they got evidence during the encounter, then the evidence can be suppressed if there's a Fourth Amendment violation. You also want to try to find a civil rights organization if there isn't an arrest, or even if there is an arrest, and you feel like your rights have been violated, to talk to a lawyer. And hopefully, I mean, we don't know, I mean, one of the problems with civil litigation is that it's expensive, it takes a long time. And if you are let go pretty quickly, there aren't a huge amount of damages. And so it just disincentivizes you trying to enforce your rights on the back end. But I think it's important that we try, and I think there are more lawyers, not lawful lawyers, but there are more, there are plenty of lawyers out there who are trying to do

• 30:50Speaker 05

  that proactive civil work to ensure that rights are violated, even absent some kind of horrific ending to an encounter.

• 30:58Melissa Murray?

  Yeah. And if I could just like add some things, just from like other related experiences, I think something else or some other things people might want to keep in mind is after the encounter, or like when you can, when it's safe, write down what you remember, let's say, if you weren't able to record it, including, you know, any identifying details about the officers or the agency they work for. If there are witnesses, you know, get their contact information, so that can also, you know, potentially be helpful.

• 31:27Speaker 05

  Even if you don't want to go the formal, file a lawsuit, you should complain to the department, right? There's nothing stopping you from filing a complaint with the department. If you have a civilian review board in your jurisdiction, you might want to file a complaint with them. And so I think it's important, at least, to raise the fact that your rights have been violated with somebody. Now, whether or not something comes from that, we can have a long conversation about that. But I think it's really important and incumbent upon all of us that when we feel our rights are violated, we say something to somebody, because I think even making the record is valuable in and of itself.

• 32:01Melissa Murray?

  I love this let's talk to the manager energy. If you file a complaint, always here for it.

• 32:08Leah Litman?

  I'd like to speak to your manager.

• 32:10Melissa Murray?

  Yeah. But like, so if you do file a formal complaint, does that always go in the officer's file? Like, if something happens later, does this become evidence of pattern of practice or some kind of MO going forward?

• 32:22Speaker 05

  If you file a formal complaint, it's supposed to be logged by the police department, and it's supposed to become part of that officer's personnel file. I mean, depending on the state, some of that information, you might be able to get it through public records requests. And so you can start to build a record where if an officer has a long history of violating people's rights, and that's something that could be marshaled to try and get that officer disciplined or trained in some kind of way. If you end up suing, you can use that evidence, perhaps, depending on how it's collected. And so, yeah, I think the record is important, not only for kind of expressing the violation of your rights, but just making sure that there is a public record such that it can be used at the department level, at the city level, or in court someday.

• 33:07Melissa Murray?

  So, Daniel, you've covered so much, and, you know, one thing that sort of stands out is that there's not a lot of clarity for people, certainly for people who may be vulnerable in particular ways. If you could give our listeners just a quick and dirty takeaway, like, what do you want them to know? Like, if you can boil this down into a couple of sentences, what should someone know about how to interact with the police if they are stopped?

• 33:34Speaker 05

  So I think you always want to make sure your safety is first, right? And that's if you're exercising your rights, or if you're not exercising your rights. So if you are choosing to avoid the encounter, you walk, you don't run. If you want to tell the officer that you don't want to answer questions, you say it politely. And I hate giving this advice, but I think this is what keeps you safe. And so I think the more you can do to ensure the encounter doesn't escalate, the better. Now, ideally, the state officer, who we all pay through our tax dollars, would be the ones to kind of keep the cooler head. But I think whatever you do, you want to do it in a way that tries to keep the temperature turned down, because once the temperature's turned up, if the officer feels threatened

• 34:18Speaker 05

  in any kind of way, then that also creates a risk of danger to you as the person as you're in track with police.

• 34:26Melissa Murray?

  So the moral of this is stay cool, honey bunny.

• 34:31Speaker 05

  Yeah, put that on a t-shirt. And keep your hands visible, no sudden movements.

• 34:35Melissa Murray?

  Yeah. Yes, I mean, exactly. That's great advice. Looking ahead, Daniel, where do you think this area of law is going, especially given the current political climate? I mean, you know, you've already mentioned that courts are unlikely to take into account the way that different people might have different experiences of their situations with police officers and different perceptions of their ability to leave. Do you think that's likely to become entrenched in law, given some of the moves that this administration is making?

• 35:09Speaker 05

  You know, I'm going to be silver lining Daniel for a second and say, what?

• 35:16Melissa Murray?

  As your colleague, I see this Daniel a lot.

• 35:20Speaker 05

  Don't worry, the pessimism, the pessimism is coming. I mean, what I think this moment has done is it has rendered visible kind of some of the most abusive police tactics that you can see. And the abuses, quite frankly, have been against people who you wouldn't think are subject to the most abusive police practices. Like, if you're a black person in America, you know you can tell stories about police violence, you have gotten the talk, you know how to acquiesce to police officers, because you are taught that as a survival tactic. I don't think I anticipated us living in a world where police officers are gunning down white folks in the middle of the day, right?

• 35:59Speaker 05

  And so what I hope is that part of what we see is that what the law has done is it's created this world where rights aren't respected and police can act with such impunity that we start to really kind of push back against that idea, even if the courts aren't the place to do that, that we push our departments to have better policies, that we, that we start kind of demanding more accountability at some level, even if it's not in the courts. And so, and there are state courts, too. I always have to kind of shout out the state courts, because you also have rights under your state constitution. And so even if the Supreme Court sucks, it only sets the federal floor, and your state courts can do something different under their Fourth Amendment analogs. And so, and state, a lot of state court judges are elected.

• 36:43Speaker 05

  And so we should be pushing for a view, a vision of the law that is more close and tethered to reality than the one we currently have. And I think there's a lot of different levers where we can do that beyond the federal courts and beyond the Supreme Court.

• 36:57Melissa Murray?

  You said you were going to do pessimistic Daniel, too. I wanted to make sure you had the opportunity for that, if you wanted.

• 37:03Speaker 05

  Yeah, so do I see the Supreme, so do I see the Supreme Court ever acknowledging a reasonable person, and by that, I mean, a truly reasonable person's kind of experience with police? No. Do I ever kind of see them going out of their way to kind of say, like, oh, yeah, like, for a black person in this country, being like accosted by a police officer might feel different than it would feel for a white person? No. But that doesn't mean we shouldn't try and push where we can to get the law to move closer to how we all experience it, and not just an experience that is untethered from anybody's reality, quite frankly.

• 37:41Melissa Murray?

  Well, thank you so much, Daniel Harawa, for taking the time to have such a comprehensive and thoughtful conversation that I know is going to be a huge help for many people listening. So thank you so much, Daniel.

• 37:53Leah Litman?

  Thank you, Daniel.

• 37:53Speaker 05

  I'm always happy to help. Thanks for inviting me.

• 37:57Melissa Murray?

  I also wanted to shout out Sarah Hammacki, who assisted with the preparation of this episode.

• 38:10Melissa Murray?

  Starks Ruteney is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Our music is by Eddie Cooper. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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