A barefoot and shirtless acquaintance of mine from south Texas was recently detained by the police, simply because he was barefoot and shirtless (outside). He would like to know if this was false imprisonment, and whether had has a cause of action to sue them.
The answer, as is so often the case in these situations, is
First I hasten to add that I am not a lawyer. Do not depend on this as legal advice. Each situation is different and the specific facts of a case are important in determining an outcome. That said, I do have legal experience (and have actually won a somewhat complicated case, though I have lost others). Let me also say that even getting a lawyer isn’t necessarily a panacea. I read a lot of court cases and there are a lot of not-very-good lawyers out there. Keep in mind that the overall success rate for lawyers at trial is a mere 50% (because, obviously, for every winning lawyer there is also a losing lawyer!).
Here is the story of my acquaintance (slightly edited for clarity):
They found me barefoot and shirtless and they freaked. They told me I couldn’t go anywhere, even though I had broken no law and I allowed them to search my knapsack (no shirt there, only vitamin-water and books).
Yesterday, between 3 and 4 AM Central Time I was approached by two Police Officers at the Walmart parking lot. They seemed to think I was “not all there” as they kept asking me about the day, month, the identity of the President, the name of the city, etc. They then asked me why I was barefoot and shirtless. I answered honestly by saying “I’m always barefoot, unless I’m on someone’s property and they require me to wear shoes.” I pointed out that THIS Walmart had never minded. I told them I was shirtless because I didn’t want to wear a shirt on a muggy night, but that I wasn’t going inside the store anyway, just buying a soda from the machine outside. One of the officers told me that for my safety, since there have been a few muggings lately here in town, given the time and the way I was dressed, he would have to have me call someone to come pick me up. I told him I felt safe walking back home, it being about a mile a way. He said he wouldn’t let me do that and my options were “give me your parents’ number so I can call them, or I can figure it out the long way if I have to.” I gave it to him, and they called my folks and they ended up picking me up.
Throughout this I asked him several questions, like “If this were daytime, would you be doing the same thing here.” He said “no.” At least he won’t bother the shorts only crowd in the daytime. Then I asked, “If a person wearing shoes and a shirt had been walking out and about by himself just 15 minutes later, would you hold him?” He said “no, because he’s not drawing attention to himself.” Doesn’t that mean I can’t be shirtless and barefoot in the wee hours on my own anymore, you’re always gonna come up and hold me until someone comes for me?” He said “Yes.”
Bottom line is I think I have a good cause of action. I was never breaking any laws, and I wasn’t being questioned as part of an investigation of any kind, yet he falsely imprisoned me!
The thing that really matters in police encounters is coercion. Keep in mind that a policeman can do anything a normal citizen can do. A normal citizen can came up to you and engage in conversation and ask you a bunch of questions, even rude questions. A normal citizen can even ask you to search your backpack. A normal citizen can tell you to call your parents. (By the way, the acquaintance is 32 years old, so I have no idea where that “call your parents to come get you” came from.) The thing is, a normal citizen can ask all those things, and you can cooperate if you want.
And that is the way most courts view police encounters.
Now we all know that, in real life, police officers are intimidating as hell. Furthermore, they are trained (well-trained) to be intimidating in that fashion to get you to cooperate, and they are trained to do so without actually crossing the line to actual coercion. But as long as you cooperate, what they do is legal and does not give you a cause for action for suing them.
So, it depends on what you want do to.
Now, in the above situation with my acquaintance, I don’t know the particulars of just what he consented to (or more importantly for any lawsuit, how a court would interpret as what he consented to — take a look at a somewhat similar barefooted court case, Cady v. Village of McCook). If you are the sort of person who does not want such unwarranted intrusions by the police, there are ways to handle it. Just keep repeating,
“Thank you for your concerns, officer. I am just fine.”
It is also OK to say why you are barefoot, if you wish, and being shirtless on a hot muggy night is also OK to share, if you wish.
And the way to tell if the officer is actually detaining you is to ask,
“Officer, am I free to go?”
If you are not free to go, then you are being detained, and the officer needs specific legal cause to do so. This is called a Terry stop, and the officer requires a reasonable suspicion that you are involved in criminal activity. Obviously, in the situation above, the officer could not have such a reasonable suspicion.
When you do ask, “Officer, am I free to go?”, expect the police to engage in word games to avoid answering the question (so you will have to keep repeating it). They might say, “Oh, I’d just like to ask you some questions.” Note that this does not answer your question; also note that it does not say that you have to stay (i.e., you are being detained). All you can do is do nothing more than repeat your question, and maybe say, “Then, I am leaving now.”
When it comes to searches, the specific legal cause is a reasonable and articulable suspicion that the person may be armed and dangerous. A weapon in a closed and zipped backpack cannot be dangerous because of all the effort required in getting it out (unless it’s a bomb, in which case the officer needs a reasonable and articulable suspicion that the backpack contains a bomb). A pocket, however, might contain weapon that is easy to get to, so those are what are usually searched in a Terry stop and frisk.
So, if you don’t want to be searched, just keep repeating,
“Officer, I do not consent to a search.”
Again, they will try to verbally manipulate you to consent. “Why, do you have something to hide?” From my point of view, I always have something to hide: poopy underwear (maybe), gushy and embarrassing love letters (maybe), a copy of Death to Smoochy (OK, not really). They don’t need to know about my personal life. So, what you have to do is just keep repeating it, verbatim, until they give up.
By the way, “probable cause” is required for a full custodial arrest. That could happen if, while talking to you, you say something that actually gives the offices probable cause that a crime has been committed. Or, if a frisk was justified, it turns up contraband. At that point the police can also do a full search. There is no reason it should ever get this far simply for being barefoot and shirtless.
Going back to the scenario above, instead of calling his parents to come get him (geez, those cops sure know how to humiliate, don’t they?), a different tack might have been just to say,
“Well, I’m walking home now. If you are so concerned about me,
you are free to follow.”
(You cannot stop them from following, anyways. They can do anything a normal citizen can do, remember?)
Now, am I saying that that is what I would have done? Maybe. But only if I thought of it (and there is no guarantee that I would have).
And that gives us another way of looking at these encounters and situations that arise because we go barefoot. It is easy to note how humiliating they are and dwell on that. Don’t! Think of them as learning experiences. Being a barefooter teaches valuable lessons. It teaches you what discrimination feels like (and if you are white middle-class it really can give you sympathy for what others, not as privileged, go through). It teaches you how to deal with store encounters and how to keep you cool (though it may take a few attempts). It can even teach you how to deal with the police in these sorts of relatively minor situations; you never know when you might be stopped for something much more serious.
So look at it as a marvelous learning experience that our shod friends might only get while being arrested for something serious, and they won’t have had the experience in dealing with it.
It is also the case that sometimes (probably, actually, many times) the police will violate our rights. There are a lot of instances of it. These days, getting a surreptitious recording of any encounter might be a good thing. It is legal in 48 of the 50 states (not Illinois and Massachusetts). If you are thinking of doing so, you should probably read this by Radley Balko. Be aware that often the police don’t know of the legality, as you can see by perusing Carlos Miller’s Photography is Not a Crime website. So, to quote the great Roseanne Roseannadanna, “It’s always something — if it ain’t one thing, it’s another.”
Finally, let me direct your attention to a great website on dealing with police: Flex Your Rights. They have also produced two excellent short films. The first is “BUSTED: The Citizen’s Guide to Surviving Police Encounters”,
and the other is “10 Rules for Dealing with Police”,
While both are on YouTube, I bought my own copies, mainly to support
them financially for the good work they do.
[Note: I have a followup entry here.]