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Video footage of police barreling into a City Heights family’s store, having assumed a burglary was under way, surfaced some key problems.
A police report said one of the brothers tried to lock the door of the store to keep the police out. One report says the mother, Hedy Julca, held the door shut, that her other son assumed a boxer’s stance against police. The surveillance video shows otherwise.
The grainy footage shows officers pummeling a man in what turned out to be his home. If police struck him without provocation, that’d be a pretty clear instance of wrongdoing.
But there’s also plenty that’s murky in this story. The cops said Luis Lobaton was cursing at them during the exchange. Can police officers use force against you because you told them to fuck off? Can they rush into your closed business when it’s clear you don’t want them there?
I talked with Alex Kreit, an associate professor and director of the Center for Law & Social Justice at Thomas Jefferson School of Law, about some of the nuances in the Fourth Amendment. For a more complete picture of what your rights are during law enforcement encounters, check out these earlier explainers on when police can pull you over and what it means when police ask you if you’re on probation.
Catherine Green: When can police enter your home or business without permission?
Alex Kreit: The Fourth Amendment generally requires a warrant in order for the police to conduct a search, so to go into your home and go into your business. But they say a warrant is required unless an exception is met, and there’s kind of a laundry list of exceptions.
For the home, exigent circumstances is the exception that would typically apply. Exigent circumstances can usually cover one of three things: one, hot pursuit, which is probably the least common, like if the police are chasing after somebody who’s fleeing the scene of a crime, and they go into a home or run into some private business, the police can follow them in without a warrant.
The more common ones are if the police have reason to believe somebody’s in some sort of danger in the home or in a business. They hear somebody call out for help.
And then if the police have reason to think that somebody’s destroying evidence inside of a home. If they knock on the door to ask somebody questions and then they hear somebody say, “Flush that down the toilet” or something.
CG: And all they would have to do in their police report is explain what led them to get inside?
AK: If there’s a claim that there’s some kind of emergency, then the trial court really would be who decides that.
Just because a police officer says, “Well, I thought there was an emergency,” even if the court says, “I believe that you thought there was an emergency,” if they thought there was an emergency reason that was objectively not really the type of emergency that would justify a warrantless entry, it might still be unconstitutional. Even if (police) genuinely thought there was an emergency, a loud crash could mean (someone inside a home) just dropped dishes.
CG: Let’s say police are talking to somebody, asking them questions. What are someone’s rights when it comes to speaking in an aggressive way or swearing at officers?
AK: It’s not a bright line, that’s for sure. There is a free-speech right to say mean things to the police or use curse words. Just because you’re nasty with police, that does not justify the police arresting you or doing really anything else on its own, because you do have a First Amendment right to say to the police, “Fuck off” or whatever.
There’s a huge caveat to that, which is, if what you’re doing is in some ways, could be considered disorderly conduct or you are impeding the officers’ investigation in general, it’s not necessarily going to take that much before what would be protected free speech suddenly becomes a crime.
CG: On interfering with police duties and disorderly conduct – what do those specifically look like? Are the definitions pretty broad?
AK: A lot of that’s going to depend on what state law says.
One issue is well, is there some crime that the police are alleging this person committed, so by coming into my face and yelling at me, does that satisfy the elements of resisting arrest or disorderly conduct or whatever it might be?
Then there’s kind of the free speech issue. You can say as a general matter that there is a free-speech right to curse to the police or be nasty to them. But beyond that, it’s going to be a lot less precise. You don’t have a free-speech right to resist arrest or engage in disorderly conduct.
You do have a Fifth Amendment right to not answer police questions. People have a right to say, “I’m not going to say anything to you.”
CG: So what about filming with your cell phone while you’re being questioned? Is that less of a gray area?
AK: I think that is a little bit more clear. It’s still not been yet definitively resolved by the U.S. Supreme Court as to saying there is a First Amendment right to film the police, but at least a substantial if not overwhelming majority of courts that have taken up that issue … have said that there is, and the Ninth Circuit has said that there is.
It’s much harder for the police to say that filming them is disorderly conduct or is impeding their investigation.
If they’re trying to put handcuffs on somebody and you’re thrusting the phone in between or something, obviously there are those kinds of situations. But if you’re just filming them, even from a few feet away, it’s not going to be plausible for them to say this was actually “interfering with what we we’re doing.”
They could tell you to stop. If they start commanding you and ordering you to stop, then I think you’d probably have a pretty good argument that they’re now violating your First Amendment rights.
As a practical matter, you may very well be running a little bit of a risk that the wrong officer who doesn’t really necessarily know what they’re doing or understand what your rights are – I mean, ultimately they’ve got the immediate power. The fact that maybe that’s unconstitutional is not going to necessarily help you in the short-term.
CG: What bar do police have to clear to pursue something as “suspicious behavior”?
AK: It depends on what they want to do. If they wanted to do what’s called a “stop-and-frisk,” like they want to just temporarily detain you, and frisk you, ask you some questions, the courts say (they) need reasonable suspicion to stop somebody, that criminal activity is afoot. And if (they) want to frisk them, (they) need reasonable suspicion that the person’s armed and dangerous.
If the police were to go beyond that, arrest somebody, that you need probable cause for – which is like a higher-degree, more exacting standard of suspicion.
Reasonable suspicion is also not anything that’s been precisely defined because it’s just so many different circumstances where it can come up. The court says all the time, you think of the totality of the circumstances, meaning all of the facts that are in play – is that enough to meet that reasonable suspicion test? That’s really going to be the standard to stop somebody.
Let’s say the police come up to you on the street and say, “Hey, how’s it going? Can I ask you a few questions?” They don’t need reasonable suspicion to do that because courts say that’s just a consensual encounter.
The best advice is always: If you have any question about whether you’re free to go, just ask point-blank to the police officer. They’re going to have to end any ambiguity about whether this is a stop.
Very often they might say things to make you feel like somehow it’s going to be bad for you to leave, but one way or the other, if they really and truly are not detaining you, and they let you know that, you’ll kind of be like, “OK, I could just go.”
The test for determining if somebody has been stopped, which is in Fourth Amendment terms considered a seizure, would a reasonable person, in the shoes of the citizen, feel as though they were free to decline the officer’s request or otherwise terminate the encounter? In other words, do you feel like you’re free to go on your way?
If the police yell, “Stop, don’t move!” obviously any reasonable person would not feel free to leave. …
If the police come up to you on the street and say, “Hey, what are you doing over here? Can I talk with you for a minute?” courts may be inclined to say, “This is just all a consensual interaction, the police didn’t even stop you, seize you, so they don’t need reasonable suspicion at all.”
CG: Whether alleged or real, is gang affiliation ever justification for police to be more aggressive with a person?
AK: I wouldn’t say that it could justify being aggressive per se. When the police use any kind of force, they can’t really use force just for a punitive type of reason.
But where it could be a justification is if the police really think that some type of force is necessary, and the facts indicate that some level of force is necessary to secure the person if they’re lawfully arresting somebody or to prevent them from harming the police. Certainly if they think that this person is a gang member, that can factor into that type of determination.
(Police) might say, “I need to do a search, I know these people might be in a gang or whatever, so I’m going to handcuff people right now for just everybody’s safety while I do this” – that’s a completely different thing from saying, “Well, this guy might be in a gang so I’ve got to punch him in the face once or twice to show him who’s boss.” That’s not going to be acceptable.
If you’re talking about that use of force, I think being in a gang could still be a factor. If somebody’s getting in your face and making threats against you, and you know that they’re in a gang, that fact might very well be relevant to your saying, “I’m going to view this as a very real threat.”