Strict Scrutiny - Know Your Rights: Do You Have to Talk to Cops?
Episode Date: August 27, 2026In 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_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email transcripts@crooked.com
Transcript
Discussion (0)
Strict scrutiny is brought to you by Americans United for separation of church and state.
250 years into the American experiment, it's time for all of us to decide. What kind of a country do we want to be?
The founding fathers got a lot of things wrong. But one thing they got right was knowing that church and state need to be kept separate.
Christian nationalists are trying to destroy that history and take this country down a scary path.
They're must using government power to impose their beliefs, rewrite our history, and decide who belongs in America.
Americans United refuse to let that happen.
Every single day Americans United is fighting back and holding the line against Christian nationalism with everything they've got.
AU has sued the Trump administration seven times in the last year alone and 12 times since the second administration began.
They've challenged government officials who use taxpayer resources to promote their religious beliefs.
They're exposing abuses of power, defending public schools, and holding the government accountable when it violates the Constitution.
But filing lawsuits, changing policy, and community advocacy don't happen on their own.
They happen because people like you decide to be part of Americans' United's fight.
If you're looking for an empowered community to join, take a look at what's going on with
AU.
Visit AU.org slash crooked to learn more and join the fight today.
Mr. Chief Justice, please support.
It's an old joke.
When I argue men, argues against two beautiful ladies like this, they're going to have
the last word.
She spoke not elegantly, but with unmistakable.
clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs.
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.
I'm so happy to be here.
for having me. 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? 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.
I'm sorry. Wait, can I walk away? Can a melanated person walk away?
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 encounter 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 ignore them out, right?
All right. Are there any instances where a law enforcement officer could tell me stop and I could just keep walking without getting arrested?
Do I have to be pretty sure that I have not done anything wrong and have witnesses around to make sure that that is exactly the case?
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 ash to 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.
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?
Yes. So I think the safest course and probably the course everybody should adopt is just asking whether you are seized when a 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, we're just, 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.
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. 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,
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. 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?
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, the, 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. 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?
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. 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 of 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 the police officers
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, a cornered
you in some way, if they're surrounding you, then that all should matter for a police encounter,
whether 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.
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. Yeah. And I think part of the problem, Leah, is that the reasonable
person 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,
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. Yeah, I mean, this sounds like the comment
that Justice Sotomayor made, you know, in talking about the court's decision in Nome versus Vascas
Podomo, 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
Kavanaugh again for observing this. But, you know, didn't want to...
Wasn't very collegial, Leah, to acknowledge those. Did want to draw that connection.
Coach K.
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. Sure. So if police question you or you have a conversation with police during a consensual
encounter, you have your Fourth Amendment rights having 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 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.
Can I ask the question?
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?
Please don't run.
Walk and walk quickly.
Bristfully.
Because it's 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't.
and give rise a 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.
So in law school, I remember a case called California versus Hodari 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?
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 have 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 to your rights are violated to them figure out how to get recourse for the violation. But the Corps has created this world where you have.
for the average person who encounters a police, that is the safest way to engage in the encounter.
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.
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 in that point, the legal protections kick in.
They're officers need 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 in country police.
That empowers 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.
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.
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?
Yeah.
So 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, 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,
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.
And so I think it's important to kind of disentangle what happens during a stop, right?
A stop in 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.
Okay. So does someone who's been stopped have to share personal details like their name or 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?
Yeah. So some states, not all states, have stop and identify laws, which means if an officer,
lawfully stops you and as for your name, you have to give them your name. You're 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 clearance right now is your name,
assuming that's what the law says, but whether you have to give more than that 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. So suppose you were
in one of those consensual encounters, you know, a circumstance where you haven't been stopped
seized, where you would say I reasonably felt free to leave, and you, as you noted, you know,
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, okay, 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?
Yeah. So if you're in a public street, an officer can follow you.
and might follow you, right? And so 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.
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, you know, and how it's a reasonable person would do in
how it plays out in either escalating situations unnecessarily or maybe chilling the exercise of certain rights that people may have.
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 as a seizure when we're interacting with police. And then even if they did, we should
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.
Strict scrutiny is brought to you by
Lawyering Without Law.
What happens when authoritarianism
doesn't abandon the law, but uses it to undermine
democratic values and institutions?
Lawyering Without Law, a podcast
from the Knight First Amendment Institute at
Columbia University, takes on this
urgent question. Hosted by
Katie Glenn Bass and Mudd of Kossla,
the six-part series explores the role
lawyers play in either defending democracy
or facilitating the slide into authoritarianism.
episodes feature leading experts, including Kim Lane Sheppley, on how authoritarian leaders exploit
legal systems to consolidate power. Lawrence Lessig on the threat institutional corruption poses
to American democracy and Deborah Pearlstein on how the decades-long erosion of professional
norms have fueled the democratic backsliding we're witnessing today. While sobering,
the conversations also find hope in the lawyers who've refused to bend and the institutions
that have held the line, and they offer surprising and ambitious proposals for how the legal
profession and American democracy might find their way back. Listen to all six episodes of
lawyering without law, wherever you get your podcast. This episode of strict scrutiny is brought to you
by Alloy Health. Here's something nobody tells you. The skin changes that start in your 40s aren't
just aging. They're hormonal, specifically estrogen loss. Estrogen naturally helps maintain
collagen, support elasticity, and keep skin hydrated. As estrogen declines, skin gets thinner,
drier, and more creepy. That means your expensive cleanser, retinal, moisturizer, none of
them were designed to solve a hormonal problem. As I've said, I'm a woman of a certain age,
which means my skin doesn't look the way it did 20 years ago. It's just not as plump or peppy.
When skin feels thin, creppy, dry, or dull after 40, nobody told us our routines needed to change.
But now there is a routine. It's M4 skin care from alloy. The first head to toe line of estriol
powered skin care. Estriol is a safe, gentle, and bioidentical form of estrogen,
clinically proven to rebuild collagen, restore elasticity, and visibly reduce wrinkles.
One product in the line is M4 face cream, where 88% of users saw improved elasticity.
And for M4 body treatment, 95% felt smoother skin.
The full line targets face, eyes, and body.
Estrogen-powered skin care everywhere you notice changes.
It's prescription strength without the appointments, pharmacy trips, or insurance hassle.
HSA and FSA eligible, delivered free to your door.
Here's how it works.
You complete your intake form.
M4 is available.
by prescription, so you'll start with a quick online form. Then you'll get your prescription.
You'll be matched with a menopause specialized physician who reviews your intake and prescribes what's
right for your skin. Plus, you get $0.0 on limiting messaging with your doctor. Finally, M4 is delivered
to your door. Once approved, your prescription ships straight to you. No pharmacy, no hassle.
Try M4 skincare from Alloy and see results in as little as eight weeks. Head to MyAloid.com
and use the code strict to get $20 off your first order. Your menopause specialized doctor
will tailor your skin care to your needs.
Plus, you get $0.0 unlimited messaging with your doctor.
Head to M-Y-A-L-L-O-Y dot com and use code strict to get $20 off your first order.
Just in the spirit of additional variations, you know, on the themes we've been talking about, you know, what about traffic stops?
You know, 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?
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 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.
So we've gotten a lot of questions about this, certainly since the second Trump administration, maybe
even more so after the Supreme Court announced a shadow docket decision in Nome versus Vasquez-Prodomo.
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 residence versus others?
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 everybody in the country, right?
I don't think, I mean, there are 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 have 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 administration's want to do, they move something that was off the wall
and 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. 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, 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 and 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.
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?
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.
to record the encounter. Again, you want to do it safely, and 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 the 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 and what happened. 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 law firm lawyers, but there are more.
there are plenty of lawyers out there who are trying to do that proactive civil work to ensure that rights are violated, even absent some kind of horrific ending to an encounter.
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 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.
Even if you don't want to go the formal file a lawsuit, you should complain to the department.
Oh, 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. I love this. Let's talk to the manager energy. If you file a complaint,
always hear for it. I'd like to speak to your manager. Yeah. 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 and practice or some kind of MO going forward? 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, then 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.
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? 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
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 in any kind of way, then that also creates a risk of danger to you as the person as you interact with police.
So the moral of this is stay cool, honey bunny.
Yeah, put that on a t-shirt.
And keep your hands visible.
No center movements.
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, you know,
this administration is making?
You know what?
I'm going to be silver lining Daniel for a second and say...
Okay.
As your colleague, I see this Daniel a lot.
Don't worry.
The pessimism is coming.
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 abuse of police practices.
Like, if you're a black person in America, you know you can tell stories about police violence.
You have gotten the top.
You know how to acquiesce the 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?
And so what I hope is that part of what we see is that what the law has done is,
has 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 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 a lot of state court judges are elected. And so we should be pushing for a view, a vision of the law that is more close and tethered to reality than when 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.
You said you were going to do pessimistic Daniel too. I wanted to make sure you had the opportunity for that if you wanted.
Yeah. 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 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.
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.
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.
Thank you, Daniel.
I'm always happy to help.
Thanks for inviting me.
I also wanted to shout out Sarah Hammocky, who assisted with the preparation of this episode.
Stirk Scrutiny is a Crooked Media production.
Our show is produced by Melanie Raoul and Michael Goldsmith.
Our music is by Eddie Cooper.
Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffitt, Adam Lippert, and Eric Schute.
Our production staff is proudly unionized with the Writers Guild of America East.
