THE CONFRONTATIONISTS: The Rise of Police Encounter Videos

The internet these days is ripe with what I’m going to call Confrontationists and their videos.  These videos feature a citizen (the Confrontationist) obstinately refusing to cooperate during an automobile stop at a DUI or immigration checkpoint. Checkpoints seem to work well because they’re predictable–at least on the short-term–and they allow a budding Confrontationist to get his recording device, and his nerves, appropriately prepped.

Typically, they begin with the cops asking a question or issuing a command, and being met with silence, or sometimes a casual “Nah. No thank you.”  There passes then a moment which makes clear that cops are not accustomed to this response. Most viewers’ heartbeats will probably quicken during this moment.  I know mine does.  The question or command is repeated, to no apparent effect.  A slow-motion train-wreck ensues.  This train wreck often ends with the citizen’s forceful arrest.

No doubt these videos are popular on one level because of the awkward drama, but I think they’re also popular because everyone can find something in them to confirm their biases and raise their ire.  The more libertarian-leaning among us get to see cops acting oafish, condescending, and humorless when faced with a brave citizen asserting his rights. (I say “his” because the Confrontationist in these videos is always male). Law-and-order types get to see some cocky little scofflaws get the smack-down. And if he doesn’t get the smack-down they will attempt to give it to him themselves in the comments thread.  (This latter group of viewers seems surprisingly large, at least judging by the percentage of comments they leave.)

Watching these videos as a attorney confirms my self-interested belief that no-one knows the law. Not the police who are supposed to be enforcing them, nor the citizens who are supposed to enjoy their protection, nor, usually, the leavers of anonymous internet comments. The law is really complicated, especially the areas of Fourth and Fifth Amendment Constitutional rights, in which these encounters are mired.  But still, if anyone should know their rights, it’s surely the citizens who are staking their well-being on those rights.  So, for them, and everyone else who is interested, here’s a brief rundown of at least the well-settled law typically implicated in these videos:

Constitutionality of Checkpoints:

Many of these Confrontationists seem to premise their idealistic fight on the idea that DUI checkpoints (or border checkpoints) are unconstitutional detentions.  They’re not.  At least if you’re willing to stipulate that The Supreme Court of the United States gets to define the contours of the broad (but unspecific) protections guaranteed by the Bill of Rights.

While these checkpoints are certainly a type of “seizure,” the Fourth Amendment only prohibits “unreasonable searches and seizures.” And the Supreme Court has decided these types of checkpoints, where every driver on the road is briefly detained and some are singled out for further investigation, are “reasonable” under the Fourth Amendment. (Some states have disallowed sobriety checkpoints by statute, but it’s a tiny minority.)

Being Ordered to Step Out of the Car:

Another common misconception is that you can’t be ordered out of the car during a routine traffic stop investigation.  Also, strictly speaking, incorrect. The Court believes that there’s an “inordinate risk confronting an officer as he approaches a person seated in an automobile.” Therefore, the logic goes, it is “reasonable” under the Fourth Amendment for an officer to order the driver and passengers out of the car during every automobile stop. Bottom line: unless your state law specifically says otherwise, an order to step out of the car will probably be upheld in court, and failure to obey could result in a criminal charge.    

Refusing to Answer Questions:

Yes. This is one topic where these guys are right on. It is not against the law to decline to answer questions, and the police cannot order you to answer. This is bedrock Fifth Amendment law.  There is, however, an exception for a question regarding your identity.  The Supreme Court found that states can charge you with a crime if you refusal to identify yourself during a lawful investigation, especially if you’re an irate Nevadan cowboy.

Repeatedly Asking if You’re Free to Go:

This is another thing these guys get right. It’s certainly legal to ask the police questions, and this particular question has the benefit of “forcing the hand.”  Police can question and investigate you as long as they want when you are taking part “consensually,” and they tend to take advantage of any situational ambiguity in their favor.  Asking if you are free to go (or, negatively, asking if you are being detained) forces the cop to decide if she has legal grounds to keep you.  If she doesn’t, off you go.  If she thinks she does, at least she has to go on the record and can’t later claim that you were there of your own volition.      

Maybe the actual state of the law isn’t really the point. For many Confrontationists the point seems to be the pleasure of provoking an authority figure. But the police, for their part, often react with a distinct lack of grace–they often react with shocking belligerence, in fact.

In the battle for sympathy which seems implicit in these videos, it’s ultimately kind-of a wash for me. Even so, I’m glad the Confrontationists exist. I really am. The line between illegal detention and lawful investigation is a thin one and cops tend to step all over it with their big cop-boots, particularly when they meet no resistance from a humbled citizenry. Someone willing to push back, even abrasively, even under a misconception of the law, is certainly one of the best ways to help keep law enforcement in check, and, in cases where the law itself is out-of-sync with public opinion, a great way to prompt legislatures to take another look.

Further, where these videos reveal blatant misconduct, they are great fodder for local defense attorneys and defendants who will deal with the same players in later cases.  That cop in Tennessee who appears to subtly signal his dog to “alert” on a car, and subsequently fails to find anything incriminating, will be sweating it out in courtrooms for the next decade.  Anytime he (or the dog for that matter) is involved in a similar drug search, defense attorneys will gleefully come up with a reason to trot out that video.

The Confrontationist who filmed it is one of my favorites, incidentally. He’s not arrogant about it, but “he knows his rights and he’s completely innocent”–one of the cops admits as much, on camera, while rummaging through his car during the subsequent search.