You Have the Right to Remain Silent, But Can the Police Retaliate Against You For It? – The Root

If the police pull you over, it is your constitutional right to refuse to answer questions from the police, but does it violate the Constitution if they retaliate against you to punish you for refusing to answer their questions? That is the question at the center of case that went before the U.S. Court of Appeals for the 5th Circuit, Alexander v. City of Round Rock.

Orin Kerr, the Fred C. Stevenson Research Professor at The George Washington University Law School, took a look at the 5th Circuits decision for the Washington Post, and he writes that the court ruled while retaliation against a person for refusing to answer police questions may violate the Fourth Amendment, it does not clearly violate the First Amendment, and it does not violate the Fifth Amendment.

Kerr believes the courts ruling on the Fifth Amendment is missing some key complications, and he wrote about why its a tricky issue.

According to the facts presented in the case, Lionel Alexander was pulled over by police and declined to answer their questions. In response to that, police retaliated by ordering him out of his car and then pinning him face down onto the ground. Other officers joined in, and one officer pressed a a boot or knee on the back of Alexanders neck as his face was pressed into the concrete.

Alexander was then handcuffed, and an officer asked, Are you ready to talk to me now? to which Alexander responded with an expletive. Police then shackled his legs, and at that point he was arrested. According to the police report, Alexander was arrested for obstructing a police officer.

From the Post:

Alexander filed a civil suit against the officers and the municipality (collectively, the officers). The district court rejected the civil suit, and the 5th Circuit reversed in part and affirmed in part, in an opinion by Judge Edith Brown Clement joined by Judge Jerry Smith and Judge Leslie Southwick.

The 5th Circuits new decision makes several rulings against the officers in the case. It rules that Alexander has stated a Fourth Amendment claim for unlawful detention and arrest; that qualified immunity should not apply to those claims; and that Alexander has stated a claim for excessive force.

Alexanders suit claimed that the officers retaliated against him for refusing to speak to them, and said retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit disagreed and ruled that any retaliation could not violate his Fifth Amendment right and any First Amendment claim was barred by qualified immunity.

Kerr says that the U.S. Supreme Court has interpreted the Fifth Amendment right against self-incrimination in three different ways to do three different things that are all justified by the same constitutional text that no person shall be compelled in any criminal case to be a witness against himself.

More:

The first is a right a person can assert not to be compelled by threat of legal punishment to say something that would expose them to criminal liability. The second is a right not to have forced confessions admitted in a criminal proceeding. The third is a right to get warnings in custody and to be able to call off interrogations. Theyre all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But theyre three distinct rights with three distinct histories.

Kerr disagrees with the 5th Circuits ruling on the Fifth Amendment in Alexanders case because it says the Fifth Amendment applies only in custodial interrogation which applies to the third definition of the amendment, or the Miranda right. Because Alexanders case doesnt include a Miranda claim, Kerr says that cant be a strong basis for the courts ruling.

Kerr comes to the conclusion that perhaps the idea that you have a right to remain silent is inaccurate, and that there are difficult issues lurking in the courts Fifth Amendment ruling that didnt come out in the short passage in the opinion.

This is an interesting case to look at, and Kerrs analysis goes into greater detail than I can put into this post, so its worth giving a read.

This ruling is especially timely at a time when our countrys attorney general is looking to police more power while simultaneously stripping protections from everyday citizens.

Understand what you can and cannot do during a police stop is likely to become much more important as this administration rolls on.

Read more at the Washington Post.

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You Have the Right to Remain Silent, But Can the Police Retaliate Against You For It? - The Root