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Can the police retaliate against a citizen for refusing to answer police questions?

Washington Post – by Orin Kerr

In a new case, Alexander v. City of Round Rock, the U.S. Court of Appeals for the 5th Circuit considers the following question: If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?  

As I read the 5th Circuit’s decision, the court rules that (a) retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment, (b) retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment, and (c) such retaliation doesn’t violate the Fifth Amendment.

The court’s Fifth Amendment ruling strikes me as missing some complications, and I thought I would blog about why I think it’s a tricky issue.

I. The facts and ruling

In the case, the plaintiff, Lionel Alexander, was pulled over and declined to answer police questions. According to his complaint, which at this stage of the case the court assumes is accurate (but may not be — that’s a factual question to be developed later), the police conduct was seriously out of control. Specifically, Alexander claims that the police retaliated against Alexander’s refusal to answer their questions by ordering him out of his car and then “pinn[ing] him face down onto the ground.” Several officers joined in, with “one officer press[ing] a boot or knee on the back of Alexander’s neck as his face was mashed into the concrete.” The police then handcuffed him, and an officer asked, “Are you ready to talk to me now?” Alexander responded with an expletive, which led the police to shackle his legs. Amazingly, at that point the officers arrested Alexander. The precise basis for the arrest is a little bit murky. But at least as it was written up in the police report, Alexander was arrested for obstructing a police officer.

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 Circuit’s 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.

That all seems correct to me. But I was more interested in the court’s rulings in the officers’ favor, specifically on Alexander’s retaliation claim. Alexander claimed that the officers retaliated against him for refusing to speak to them. According to Alexander, the officers’ retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit ruled that any retaliation could not violate Alexander’s Fifth Amendment right and that any First Amendment claim was barred by qualified immunity.

II. The retaliation claims

Let’s look more specifically at the courts’ reasoning on the retaliation claims. Here’s the court rejecting the Fifth Amendment claim:

Alexander’s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza’s questions is easily disposed of. As this court has noted on multiple occasions, “[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F. Supp. 2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated.

And here’s the discussion of the First Amendment claim, with most citations omitted:

We hold that Alexander’s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer’s questions during a Terry stop.” Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011). Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly on point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer’s questions during a stop like the one at issue here.

One court summarized the issue well: “Plaintiffs contend that they can state such a First Amendment retaliation claim because Defendants retaliated against them for exercising their right not to speak. However, this right not to speak has been limited to the context of government-compelled speech with respect to a particular political or ideological message. Plaintiffs cite no authority to support the application of the First Amendment protection against government-compelled ideological or political speech into the context of police interviews.”

It is instructive that Alexander points to no case supporting the contention that there is a clearly established First Amendment right not to answer an officer’s questions during a traffic stop. We therefore conclude that the officers are entitled to qualified immunity on Alexander’s First Amendment retaliation claim.

I’ll leave it to the First Amendment experts to weigh in on that claim (calling Eugene!). But I did want to focus on the Fifth Amendment claim, as I think it is more complicated than the court’s short analysis suggests.

III. The three versions of the Fifth Amendment

Here’s the problem. Much to the confusion of students of criminal procedure, the Fifth Amendment right against self-incrimination has been interpreted by the Supreme Court in three different ways to do three different things.

The first Fifth Amendment right against self-incrimination is what you might call the classic Fifth Amendment right against self-incrimination. The law can’t force you to speak in a way that might subject you to criminal liability. When a person is being compelled to say something that might make them admit to committing a crime, they must “plead the Fifth” and a judge can then rule on whether the privilege applies. If the right is not asserted before the statement is made, the right normally is waived.

The second Fifth Amendment right against self-incrimination is a right to the suppression of coerced statements in a later criminal proceeding. If the government interrogates you and you confess, the confession can be thrown out if it was not voluntary. This is an old common-law voluntariness standard that was later construed as part of the Fifth Amendment’s due process requirement. See, e.g., Jackson v. Denno, 378 U.S. 368, 376 (1964) (“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession[.]”). Although most of the cases construing this right view it as part of the due process clause, some case law also (confusingly) grounds this right in the Fifth Amendment right against self-incrimination. See, e.g.,Chavez v. Martinez, 538 U.S. 760 (2003); Dickerson v. United States, 530 U.S. 428, 433-34 (2000).

The third right is the Miranda v. Arizona right, which is a broader right in custodial interrogation to be given warnings and to be able to stop questioning if you ask for a lawyer or instruct that you wish to remain silent. The Supreme Court says that this is a “prophylactic” on the underlying Fifth Amendment right. There are dozens of Supreme Court cases on this right, and essentially they treat Miranda rights as a separate set of rights inspired by the traditional right against self-incrimination but also separate from it. See generally Dickerson v. United States, 530 U.S. 428 (2000).

Importantly, these are three distinct rights 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.” 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. They’re all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But they’re three distinct rights with three distinct histories.

IV. The Fifth Amendment analysis in Alexander

Now back to the Alexander case. The court’s statement that the Fifth Amendment applies only in custodial interrogation is only about the third of these rights, the Miranda right. But this case doesn’t involve a Miranda claim, so I don’t think that can be a strong basis for the court’s ruling.

Admittedly, exactly how to classify Alexander’s Fifth Amendment claim isn’t at all clear. That’s why I think the case is tricky. Is it a classic Fifth Amendment claim, in which Alexander was refusing to comply with officers’ questions despite state law that (the officers seemed to think, at least) required him to cooperate? Or is it more of a claim about the second kind of Fifth Amendment right? It’s true that there was no trial against Alexander, and maybe that ends the matter under the second type of claim under Chavez. But at the very least, it seems important to realize that there is a lot more to the Fifth Amendment merits than just Miranda case law.

More broadly speaking, the facts of Alexander bring up some real tension in cases like Miranda, Salinas v. Texas, and United States v. Okatan about what the “right to remain silent” actually means. Miranda speaks broadly of the right, suggesting it is part of the Fifth Amendment and that you never have to answer police questions. Salinas says you have the right to remain silent but you have to invoke it first. Okatan says that if you did invoke it, the government can’t comment at trial on the fact that you refused to answer questions.

Alexander seems to have invoked his right properly, and at least according to the complaint he was punished for doing so. It may be that the Fifth Amendment has nothing to say with that: As long as Alexander wasn’t prosecuted, maybe the government can retaliate against him for not speaking so long as it does so within Fourth Amendment bounds in terms of detaining him and using force. Maybe the idea that you have a “right to remain silent” is itself inaccurate, as you have much more limited rights than such a broad phrase would suggest. But my sense is that there are difficult issues lurking in the court’s Fifth Amendment ruling that didn’t come out in the short passage in the opinion.

I’m not sure any of my uncertainty changes the ultimate result in this case. No matter how Alexander’s Fifth Amendment claim is characterized, I gather that retaliation wouldn’t violate clearly established Fifth Amendment law under prevailing qualified-immunity standards. But it struck me as an important set of issues nonetheless.


Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

https://www.washingtonpost.com/amphtml/news/volokh-conspiracy/wp/2017/04/19/can-the-police-retaliate-against-a-citizen-for-refusing-to-answer-police-questions/

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18 Responses to Can the police retaliate against a citizen for refusing to answer police questions?

  1. # 1 NWO Hatr says:

    “… does it violate the Constitution for the police to retaliate…”

    Null & void, so that’s a moot point.

    It DOES, however, BLATANTLY violate our Bill of Rights.

    “Can the police retaliate…”

    The pertinent question is… WILL they.

    Bet the farm on that one.

  2. Joe says:

    This is a good example of why the “intellectuals” and “elite” are purged every once in a while. Once you are stopped you are in custodial custody and the only way to not incriminate yourself is to remain silent. All this lipstick on a pig by clever wordsmithing is reason enough for the next purge. It is past time for the 110th. This entire article is trying to alter a fundamental right into a quagmire of misdirection and false concepts. This crap, this reason for the 110th could have been written only by a jew. A Kierszkowski to be exact. GAD i despise these vermin!

  3. Cal says:

    “If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions? ”

    Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, SHALL NOT BE VIOLATED, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (caps are mine)

    “The right of the people to be secure in their persons,”

    “(c) such retaliation doesn’t violate the Fifth Amendment.” Well, yes it does. They violated the security of his person when they attacked him. This was a *terrorist act against an American. It also violated many statutes.

    *28 C.F.R. Section 0.85 Terrorism is defined as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives”.

    It is understandable that the judges got this wrong as in law classes they only teach “precedent” not the US Constitution to which they are lawfully bound when they enter the governmental field. I know because I have been kicked out of all law classes I take, particularly Constitutional Law. Every time the instructor starts telling us that we will spend 3 or 4 weeks on the written Constitution, and the rest of the semester on the “unwritten” Constitution I object and we “discuss” that subject.

    Basically there is NO unwritten Constitution. It is a compact between the states, and that is in writing. It is the contract that all who SERVE WITHIN our government are required to be Oath bound to. Then there is that one little problem that it seems all judges and lawyers – constitutional or not in their education seem to forget – which is that the US Constitution and all that is in Pursuance thereof is the supreme Law of this land, and that it requires in writing that ALL legislation also be in Pursuance thereof it.

    Anyone else notice that that it being the Supreme Law of our nation seems to be ignored?

  4. BMF says:

    There’s nothing complicated about this case at all. The police have no business punishing anyone for ANYTHING. Their sole purpose is to arrest people suspected of (real) crimes using the minimum necessary force. The COURTS then decide about guilt and penalties.

    Now the pigs think they have the right to use physical force to compel people to answer their questions?!

    These sons of bitches are just BEGGING to get shot.

    • Joe says:

      When a man attacks you his entire body is responsible not just his fists or hands. These son’s of bitches as you aptly call them are only the fists of the entire body responsible for these attacks. Don’t ignore the deeper implications of those training these fists and writing the codes and loopholes for their actions as well as and possibly the even more culpable likes of Kerr shortened from the jewish Kierszkowski. It is past time for the 110th. We are seeing judaism being played out in this behavior and the codes and loopholes allowing and promoting it are noahide in origin. We are suffering jewish justice. In a word the fists called cops are taught supremicism.

      • BMF says:

        Certainly the entire System is to blame, not only the pigs. You’ll get no argument from me on that. And yes, the role of Jewish supremacism in the corrupting of our country cannot be overlooked.

  5. Norm says:

    Again, “The enforcers of tyranny MUST bare the brunt of the people’s resistance to it”…End

  6. Darzak says:

    Since the gist of this article seems to be the intricacies of interaction with the CORPORATE ENFORCERS, let’s completely ignore what the ADMIRALTY MAFIA representatives in the DISTRICT COURTS say about the matter, with their word-twisting shenanigans, and look at what real, living Men standing on the land before their Creator MUST stand by and for.

    It seems to me the issue of detainment can easily be established by asking: “Am I being detained?”. Which, if your query is answered in the negative, must be coupled with: “Am I free to leave?”. If you are not being detained, then you are free to leave. If you ARE being detained, which means you are NOT free to leave (at least in their CORPORATE world) they will use some phrase taught to them by their Israeli handlers that provides an ambivalent answer that is neither “YES” nor “NO”. ANY answer to a yes or no question that is not responded to by a “YES” or “NO” is a form of avoidance and/or outright deception. You may then use the “broken record” method of repeating your questions until the situation is either escalated by the agents of the CORPORATION or is resolved by their flight from the field of verbal battle.

    Once it is evident that they are going to deny you your God-given rights, you have two choices: 1) Verbally acknowledge that it is apparent they are detaining you, that you are not free to leave, and that you are invoking your 5th Article right to provide no testimony that may be used as the basis to incriminate you in any court. You must then disengage from further discourse and let the chips fall as they may, and hope for some semblance of justice when you take them into their own ADMIRALTY COMMERCE venue (Hahahahaha!). There is always the slim possibility of a jury awarding you a handsome sum of debt instruments with which you can further the fight against tyranny.

    Your other option is to: 2) Immediately, savagely and with no mercy go into complete war with them and rid the world of their evil presence, followed by your eradication of every other agent of the Tyranny that you are able to inflict before you breathe your last breath of worldly Freedom and escape this mortal coil to forever rejoice in the joy of your salvation.

    I suppose there is a third option; the one taken by the vast majority of the sheeple in the world. That would be to acquiesce to the threats, abuse and domination of those who believe they have some kind of authority over other free people, accept the perversion of justice and resign one’s self to a lifetime of emasculation and enslavement.

    No King but King Jesus!

    • Joe says:

      The second option is incomplete. As i said cops are merely the fists of the of the multi-creatured judaic monster we are suffering to live. After the “Immediately, savagely and with no mercy go into complete war with them and rid the world of their evil presence” the victim needs to do the same to the cops C.O.’s and trainers as well as those pushing the laws cops use to absolve themselves from responsibility. Just as the author of this most deceptive and criminal article is a jew hiding behind a changed name when we birth the 110th we will find these hidden jews everywhere in positions of power and influence lying always lying and conning. It is past time for the 110th. Humanity has and always have had a singular enemy, jews. Remember always
      “if my son’s did not WANT wars there would be none”
      Gutle Schnaper Rothschild
      and of course this
      The Jewish people as a whole will become its own Messiah. It will attain world domination by the dissolution of other races, by the abolition of frontiers, the annihilation of monarchy and by the establishment of a world republic in which the Jews will everywhere exercise the privilege of citizenship.
      In this New World Order, the children of Israel will furnish all the leaders without encountering opposition. The Governments of the different peoples forming the world republic will fall without difficulty into the hands of the Jews. It will then be possible for the Jewish rulers to abolish private property and everywhere to make use of the resources of the state.

      Thus will the promise of the Talmud be fulfilled, in which it is said that when the Messianic time is come, the Jews will have all the property of the whole world in their hands.
      Baruch Levy, Letter to Karl Marx, printed in La Revue de Paris, p. 574, June 1, 1928

      By the way you had it right at No King PERIOD!

      • Darzak says:

        You’ll note, Joe, that I stated “followed by your eradication of every other agent of the Tyranny that you are able to inflict before you breathe your last breath of worldly Freedom” after the initial conflagration. What you suggested I have already said, though perhaps I could have been more precise in my choice of verbiage.
        As for No King, Period….
        I WILL have only Christ Jesus as my King, and I choose Him voluntarily with all my heart and mind. I choose to do so willingly now; EVERYONE will eventually acknowledge Him as LORD. Some, like me, recognize Him as such now, the others will ALL bow the knee later, but under different circumstances. I pray everyone who reads this will be of the former group.

        ” Let this mind be in you, which was also in Christ Jesus:
        Who, being in the form of God, thought it not robbery to be equal with God:
        But made himself of no reputation, and took upon him the form of a servant, and was made in the likeness of men:
        And being found in fashion as a man, he humbled himself, and became obedient unto death, even the death of the cross.
        Wherefore God also hath highly exalted him, and given him a name which is above every name:
        That at the name of Jesus every knee should bow, of things in heaven, and things in earth, and things under the earth;
        And that every tongue should confess that Jesus Christ is Lord, to the glory of God the Father.”
        Philippians 2: 5-11;

        • Joe says:

          All religions are bastardizations of Love. All religions lead to separation and Loves opposite. History has shown this over and over again. All religions con believers to see and obey men as a God. Men’s written words as those of a God. The ultimate con and misdirection. All you put in a God is your own Love. “God” told you via the words of men that his law is within you not within the words of others or in what others claim are Gods words. You know this innately too. Obey your own sense of justice and morality and THAT is obedience to God! God is not an anthropomorphic deity. It is Love, period. IT manifests AS Loving interaction ONLY! Satan is Loves opposite and we bring IT to life by our belief in both “vengeance is mine saith the Lord” and “turning the other cheek” thereby neutering righteous action. As well as in the clinging to limited liability. After all what jews do with what we hand t.h.e.m. is not our fault, right? You claim you WILL have only a deity as your King yet you DO obey man’s laws right? You DO pay taxes, user fees etc and use jews money, right? So you believe you follow a deity while your energy goes to those that King told you are His enemies? The simple fact is belief is Loves enemy as much as jews are, any belief. Love is real while beliefs, all beliefs must be believed because no proof exists. This is core to all beliefs, no reality! Religion is the ultimate belief system after belief in instituting organizations called governments to protect us from what we all know only governments machinate. Do you see how religions are used to machinate the same crimes as governments? Both are aspects of the same reliance on comfortable chattel-hood. It is time to put away childish things. it is time for the 110th.

          • BMF says:

            There will always be those of all sorts of different religious beliefs in the Liberty Movement. There is no way all of us will ever agree on religion, so the best thing for all of us to do is agree to disagree, set it aside, and focus on the things we all agree on. In fact, that’s our ONLY hope.

            Personally, I don’t believe in any religion. However, anyone of any religion is welcome in my foxhole or bunker as long as he’s willing to fight and die for the Bill of Rights and is otherwise a courageous, honest, and decent person. (I realize that this excludes a few religions by default, e.g., Christian Zionism. But you see what I’m getting at.)

          • Darzak says:

            I do not have the time or inclination to address all the fallacies, errors and distortions in your response immediately, Joe. But it is necessary that I do so.

            I will prepare a full response to you and others who believe as you do, but it will need to be a timely response, and I will submit an entire article to address these issues to Henry for everyone’s perusal.

            Nuff said – 60+ hours at work this week, and I am also battling a shitty cold.
            Be patient, it will come.

          • Joe says:

            I like that you claim you WILL have Jesus as your Lord! Yet you cannot know and belief is enough for you? I used to believe government agents were intelligent and moral. Did my belief make any difference in the reality? Neither does yours.
            You are using a word that does not belong in this, Belief. Belief is for children. I am a Man. All you will offer is belief based on belief relying on belief as proof. Then you will fluff your feathers at the “proofs” your beliefs offer you and other believers but us realists see for what it is. Belief is the purview of children. I deal with reality. IF you can stay within reality then start dealing with reality. Your beliefs are your own as a child’s toys are theirs. Both are as much involved in adult activities as unicorns are. Belief defined is adherence to concepts where proof cannot be found. You believe because you CAN’T know, but really really want to believe your fantasies are real. All because YOUR responsibility you want to hand to others that you can only believe exists. I deal only with what i can verify and know. We are on different intellectual planets. My feet are on the ground of Earth yours are where ever you believe you are though you are just a planted as me. You just do not believe in reality and i know it. You wait for others to free you. If you dealt with reality you would know who said that and why and what that means for Men and Women. The entire quote is “A slave is one who waits for others to free him.” That was said by Ezra Pound. You should get to know him. He was incarcerated by the same sect that invented your beliefs and that keeps you in the arrested development required to believe as a child rather than working to know as Men and Women do. I will make an assumption here, if your working for frn’s at a rate of 60 hours a week do you have any idea how much energy your handing T=the H=hebrews E=enslaving M=mankind? This is not the act of Men and Women. It is the act of a slave. If your attitude stops being the likes of “i want to be taken care of by omnipotence” to ” i WILL take care of myself” then you can replace the term of misdirection known as God to what IT is, Love. No God exists and you can’t prove one does. you can only believe then follow the words written down and interpreted by men believing you are following a God. I am not insulting you just explaining how a Man sees belief. If this is taken as insult perhaps your lack of any and all proof is responsible for that?

  7. NEVER LEAVE YOUR HOME UNARMED………………ALWAYS BE PREPARED TO OFFER SUPERIOR FORCE…………..

  8. Volthair says:

    With the exception of the KOYOTE everyone else seems to have their armchair attorney on..! ( OK norm too). All that jingoistic vernacular is a continuance of the obvescational technique employed by an impotent entity obsessed with subgegation in the hopes of obscuring gross inadequacy.
    BS

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