How to Face Down the Secret Service

More or less like this:

And not just the Secret Service, but any law enforcement agency that treats you as these officers treat her.

On the whole, I’d say she gets things just right. Some minor criticisms:

I would not have bothered to ask the agent about any charges the Secret Service might be contemplating; unless they’re formally making a charge, they won’t truthfully tell you what charges they have in mind. In any case, they have the legal authority to lie and bluff about whatever charges they’re contemplating, so there’s no reason to believe anything they tell you before they arrest you. If they have a formal charge to make, they’ll make it if and when they arrest you (or even more precisely, if and when you’re arraigned); otherwise, asking about prospective charges is a waste of time, and a good way of getting needlessly drawn into an unintentionally incriminating conversation with them, which is what they’re here for, and the last thing you want to do.

Nor, for the same reason, would I have tried to have an argument with them about free speech. By the time they’ve reached your door to question you about your speech, you can take for granted that they have concluded that whatever you said is a threat, hence not protected speech. It’s a waste of time to protest that their interpretation is outlandish, as it’s often bound to be. They already know that, but they’ve gotten some faceless lawyer’s legal advice saying that they can still nail you for something, no matter how outlandish the interpretation (if you need a face, think of Jeff Sessions). That the “something” is outlandish is no obstacle to your being arrested for it. So there’s no point in discussing it. Bottom line: an interrogation is not an academic debate, and there’s no point in trying to turn it into one.

Finally, contrary to the woman’s claim, she did have the legal obligation to confirm her name and date of birth when asked (though she was right to say that the demand for it was superfluous). Questions about identity are known as non-investigatory questions, and the Fifth Amendment protection against self-incrimination doesn’t apply to them. When you’re asked your name, your address, and your birthdate, you’re legally obligated to give them. There’s no point trying to fight this particular battle. The woman in the video happened to win the battle against giving her birthdate in this instance, but generally, refusal is a losing battle, and in my view, it’s always a mistake to fight a losing battle. The same rule applies to the demand to produce license, registration, and insurance at a vehicle stop. Don’t question it, don’t ask why you’re being stopped, and don’t try to make cooperation contingent on getting an answer to questions like “Why are you stopping me?” The situation you’re in is involuntary through and through. Just comply.

But these are relatively minor quibbles. Everything else the woman did was exactly on target.

First, she correctly stands well inside the house, a few yards from the door. Most people don’t realize that the doorway of a home is considered quasi-public space (“curtilage”), as is the porch, driveway, or yard, but the inside of the house gets fuller legal protection than its surrounding curtilage. If you open the door to speak to law enforcement, you should stand behind the arc of the door (“inside the house”), not within it (“inside the doorway”). Keep your hands visible at all times. The most obvious way to do this is to keep one hand visibly on the door knob (i.e., the part of the knob that is visible to them), and one free, which shows all at once that you are not threatening them, but that you also have not relinquished control of the door, and are ready to close it at any time.

Obviously, it was smart of her to videotape the whole encounter, and describe it in her own words on film. Perhaps the most crucial few sentences of her description was her claim that she had refused entry to the officers four times before the video began. Note the very typical refusal of the agent to acknowledge that she did so. Expect that sort of gaslighting if ever you’re interrogated. The standard procedure is to gaslight you, then demand straight answers from you to every question they ask, threatening perjury for the commission of innocent errors. They gaslight; you answer.

I also liked her insistence on asking not only whether she was under arrest, but whether she was legally obliged to continue the “conversation.” She was not obliged to continue the conversation, at least after identifying herself. The problem is, the officers have no legal obligation to respond to the very legitimate question she’s asking; they have no legal obligation to inform her of her right not to cooperate with them, even in circumstances when she has that right, like the one at hand.

Remember that Miranda warnings apply only once the subject is in custody. They are not read and do not apply to pre-custodial encounters, no matter how tense or fraught. On top of this, cops habitually and confusingly will treat questions as commands, and commands (or insinuations) as questions. Then they wonder why people “fail to comply.” The air of mystery and intimidation created by this dynamic loads the dice entirely in the cops’ favor, and leads to a lot of needless violence and unfair arrests for non-compliance. But don’t expect reform anytime soon.

The absence of an obligation to inform you of your right not to cooperate (when you have one but are not formally in custody) gives the police a very strong incentive to bullshit anyone who asks whether or not they are in custody. In this particular case, given that they’re being filmed, and suspect that the film she’s taking will go viral, they knew they’d look bad if they didn’t truthfully respond, so they did. But it’s worth noting how reluctant they are to respond. Absent the video, it’s not clear they would have responded. Considering how much bullshit cops sling so often in precisely this situation, it was gratifying to see this agent brow-beaten into telling the truth: no, ma’am, you can decline the interview. This one petard-hoisting–the subject successfully wresting the truth out of her interrogators–is worth the price of the whole video.

Before you feel the slightest bit of sympathy for these cops and the “tough job” they do–or get into high dudgeon about the “rudeness” of the woman–bear in mind that every part of what makes their job “tough” in this instance is self-inflicted. They are at the woman’s door without a warrant because they lack the evidence to apply for one. They lack the evidence to apply for one because there is no evidence to cite. There is no evidence to cite because the woman’s claim is obviously not a criminal act. It is a crime to threaten the president, but she obviously didn’t threaten the president. This raises the obvious question: what the fuck are they doing there? It’s a question I would sorely have been tempted to ask.

Hoping for someone to die is not even in the ballpark of threatening that person’s life. Frankly, I hope Donald Trump dies a premature death. We’d all be better off if he did. But that doesn’t mean I’m threatening Trump, or inducing anyone else to kill him. A hope is not a threat, and it’s simply stupid or dishonest to pretend that it is. No matter what legal excuse they adduce, these officers are being either stupid or dishonest or both in pursuing this matter. I’m sure that if given a chance, they would trundle out the party line about the “need” to determine the credibility of every “threat” that is made, if only to differentiate the credible from the non-credible ones. But this is a case in which they’ve turned a hope into a threat in order to determine the credibility of a “threat” that wasn’t made. It is hard to show respect for the authority of people who act this way. When someone shows up at your door flaunting their stupidity and/or dishonesty, they have to be treated accordingly–and disrespect or contempt is likely to be part of the package.

In other words, the “tough job” here consists in trying to turn a non-criminal act into a federal crime. So this is not a case of some poor sods doing a “tough job.” This is a case where two guys with guns and badges, whose generous salaries and benefits you pay, have shown up at your door to fuck your life up for no reason at all. Don’t feel sorry for them. Feel sorry for their victims.

At long last, the agent in the video tells the woman that she has the right to decline to have the “interview.” In a different post nearby, I’ve insisted that “involuntary participation” is an Orwellian solecism. So, I think, is “involuntary interview.” There is no such thing as a compelled interview. The word “interview” is appropriate only to a voluntary conversation, like a job interview or an interview with a journalist. It has no application to a conversation that has been forced on one party. The word for this latter sort of conversation is not “interview,” but “interrogation.”

It’s worth being careful here, however. The issues are quite tricky. Legally speaking, an interrogation is “questioning initiated by law enforcement officers” when the subject undergoing questioning is in custody, and where “custody” refers to being involuntarily held or kept within the control of law enforcement officers. It’s tempting to think that the woman is not being interrogated here because she is not in custody. Yes, she is being questioned, and yes, the questioning was initiated by law enforcement, but since she’s in her house, and she retains a right of non-cooperation (which she exercises), she isn’t literally being interrogated. So the conversation is just an “interview.”

It’s tempting to think that, but wrong. In fact, the temptation arises from a legal ambiguity that gives the encounter its distinctive interest. On the one hand, the woman is in her house, not under arrest, and strictly speaking not being detained. Most lawyers would regard her encounter with these officers as “voluntary.” That’s why she has the right to terminate the conversation and close the door on them. But remember that the conversation begins with non-investigative questions designed to confirm her identity–her name and date of birth. The duty to answer those questions is compulsory. So there’s a confusing combination of compulsion and voluntary cooperation involved here. And the officers’ demeanor gives the impression that the woman is not free simply to walk through the door in the middle of the conversation, and go to 7-11.

If I were the woman, I would have answered the non-investigatory questions more forthrightly than she did. In one sense, you might think that doing so indicates voluntary cooperation on her part: if someone asks a question, and you answer it forthrightly, it looks as though you’ve consented to do so. But I would say that answering a question you’re compelled to answer underscores the involuntary aspect of the conversation. Because she must answer those questions,  I would say that her answering them bears explicit witness to the fact that the involuntary part of the conversation took place. If she evades them, she cannot truthfully say that any part of the conversation was literally involuntary. As it happens, she ends up answering one of the non-investigatory questions, and evading the other, which does the trick. Personally, I would have answered both, making it clear that I did so involuntarily.

I can’t emphasize enough that failure to answer non-investigatory questions can lead (and does lead) to arrest for non-compliance. Precisely for that reason, there was an undeniable element of involuntariness in this encounter (not just a subjective perception of it), albeit one glommed seamlessly onto an “interview” where cooperation was technically optional, but given the appearance of compulsion. The agent did his best to convey the impression that the two things–the involuntary part of the interrogation and the voluntary “interview” tacked onto it–constituted a single conversation with the same legal status.

This tactic exemplifies the essence of every police interrogation: law enforcement relies on the subject’s ignorance of the distinction between what is legally required and what is at the subject’s voluntary discretion. If you the subject don’t know this distinction, or know it in a general way but can’t apply it to the case at hand, I guarantee that you will fuck things up for yourself. That’s why you need the help of an attorney as fast as you can get one.

For that very reason (though perhaps counter-intuitively), contrary to the Secret Service agent’s claim, if he is not detaining her (but for the handful of non-investigatory questions he asks), she has every right to expect a two-way conversation in the part of the conversation that isn’t about confirming her identity. Indeed, as she doesn’t have to have that part of the conversation at all, I assume that she can function as an active co-participant in the part she decides to have.

Note the deliberate confusion introduced by the agent when he tells her that she has the right to decline the interview but that he has the authority to ask questions during the course of it, not her. I’d be tempted at this point to lapse into profanity.  The woman does a better job of dealing with the situation than that, but I think she still bobbles things a bit. It’s an excusable bobbling, because the situation is now rather confused. How can she have a right to non-cooperation if he claims that he has the authority to set the terms of their interaction? If he’s the one calling the shots, isn’t the whole interaction involuntary? But if it isn’t involuntary–if the conversation takes place because she is presumed to consent to it–why isn’t she allowed to have a two-way conversation?

I’m afraid that these questions are unanswerable, and beside the point. There’s no way to answer them because we’ve now entered the fantasy world of law enforcement pseudo-legality, where the whole point is not to “enforce the law,” but to flex one’s authority muscles and create irresolvable dilemmas that get people arrested for nothing. If someone shows up at your door and (but for two or three questions) lacks the authority to compel your cooperation, he obviously cannot claim to control the conversation. It doesn’t matter that he’s wearing a badge and has a gun. His lack of legal authority to detain you or bring you into custody means that he can have a two-way conversation with you (where both of you have the right to participate) but not to conduct an interrogation of you (where he asks the questions and you answer, but not vice versa).

A conversation is a bilateral interaction. The person who monopolizes a conversation is being an asshole, whoever he is. What confuses things here is that though this exchange has the de jure status of a mere conversation, it has the de facto status of an interrogation. The woman is right to call the agent’s bluff, exposing the de jure status of the interaction, but overall, the situation is a difficult one to negotiate. She calls their bluff by berating them about violating her First Amendment rights. For reasons I’ve already given, I wouldn’t have done things that way. I would just have pointed out that if I have the right to end the conversation, I have the right to bilateral engagement in it. But having said that, I wouldn’t actually  have exercised that right very much. I would have made the assertion, and left the matter there. The whole trick to exercising your right to remain silent is to do your best to stop talking.

In one way, the best thing the woman does in the whole video is to insist on her right to an attorney, and on her right to a civilized inquest in the presence of an attorney. I’d have done the same when I was arrested, if only I’d had an attorney to call at the time. Unlike her, I was under arrest in the police station, didn’t have a phone, and was asked to surrender all my belongings (they specifically asked for my wallet and phone); she was not under arrest, and was inside her home, surrounded by family, each equipped with a phone. So in that respect, she enjoyed a distinct advantage.

I say this with some reluctance, however, because while it’s a good idea to have an attorney involved, it’s a mistake to make promises of any kind to law enforcement, e.g., to call the Secret Service and promise to show up at their offices in order to have a conversation with them. Ideally, you want to minimize your involvement with law enforcement, not buy time in the present by promising a different kind of involvement with them later on. Personally, I would just have ended the conversation and gotten an attorney, rather than getting the agent’s number and promising to show up with an attorney. There’s no need to promise anyone anything in circumstances like these. The ball is in their court. If they’re not detaining you, arresting you, or arraigning you, you have no obligations to say or do much of anything. If they want to detain you (etc.), it’s best to get your attorney involved. If they don’t, I advise walking away from the interaction as soon as possible.

Ideally, what you want to do is have an attorney on retainer, and tell law enforcement that you’ve retained counsel, so that any further interaction must go through your counsel. But this is hard to do if you haven’t retained counsel ahead of time, or don’t even have a lawyer yet. I happen to “have” a criminal defense attorney–a damn good one, I may add–in the sense that I have a relationship with one that I once retained. But my having a relationship with him and having once retained him doesn’t mean he’s “retained”  every time law enforcement shows up to talk to me. So I couldn’t truthfully say that I had retained counsel in a case that happened unpredictably to come up because I said something somewhere. (And PS: you should never lie to law enforcement.) I’d have to retain counsel before being able to say that. But getting through to your lawyer in the clutch case is easier said than done. (What if you’re arrested after business hours?) Clearly, you have to get arrested a few times to smooth out the kinks in the process.

In a better world, every resident of this country (citizen or not) would know how to do what the woman in the video did–know how to do it under pressure, and how do it right. Ideally, kids should be drilled in school on getting through police interrogations in just the way that they do fire drills, or are taught CPR or basic first aid. In other words, they should be taught the basics of criminal procedure (rather than indoctrinated in the latest version of DARE or the latest militarist propaganda), and tested on those basics in just the way they’re tested on math, history, biology,  chemistry, and all the rest. Many people have described Smartphones and the Internet as subversive of democracy, but we can thank both for the training they’ve given us in the dark side of civics. It’s not much, but it’s better than nothing.

Naturally, the more outre elements of political Right in this country have sided with the Secret Service in this instance, describing the woman as “unhinged” for defending her constitutional rights. Consider the possibility that people of this sort are the vanguard of fascism in this country, and a far greater threat to our lives and rights than the woman in the video.

Here’s what the Secret Service has to say:

Paul Duran, special agent in charge of the local Secret Service office, would not discuss specifics of the local incident. But he did explain what his staff is charged with investigating.

“We’re not here to limit anybody’s free speech rights,” Duran said Monday. “But if it’s threatening in nature to one of our protectees, then we try to determine credibility.”

So much bullshit packed into such a short passage.

Why couldn’t he discuss specifics? You can’t discuss the specifics of an ongoing investigation, true. So is the investigation ongoing? Or is it rather that the investigation is closed, but Mr. Duran would indefinitely like to give the reverse impression?

Mr. Duran goes on to explain the kind of thing his staff is charged with investigating. Despite his refusal to discuss the case at hand, his claim implies that the woman’s Facebook comment was threatening in nature. Strange that no one was able to ask the obvious question: how so? Not so strange that he’d be reluctant to answer a question no one asked.

He goes on to say that the Secret Service does not exist to limit anyone’s free speech rights. He may even believe that. The problem is, the Secret Service does exist to interpret obviously non-threatening expressions of free speech as though they were threats lacking legal protection. So on inspection, the assurance Mr Duran gives us evaporates more or less like breath off a blade. Incidentally, it’s worth noting that Mr Duran’s conditional–if threatening, we investigate–remains true even when its antecedent is false, as it often is. “If threatening, we investigate” is perfectly compatible with “If not threatening, we investigate, too.” Is that because he understands the truth-conditions for conditional claims, or because he doesn’t?

Ultimately, it doesn’t matter. The thing to grasp is that the conditional is true. If you threaten the President, they’ll come after you. But if you don’t threaten the President, they’ll still come after you. When I was in the West Bank, “come after you for saying the wrong thing on Facebook” meant a three hour military invasion that put the entire city under siege because some kid put up a “threatening” Facebook post. Here, it means something more decorous. But either way, when you deal with the State, whether Israeli or American, you have to watch what you say. “It’s getting more and more like Syria,” a Syrian friend of mine told me. “Pretty soon, they’ll graduate from going after the person who wrote the post to going after the people making comments on it.” I don’t doubt that. So watch what you say down there in the comments. Because saying the wrong thing might invite an unwanted knock at the door. But at least you’ll know what to do once you answer.

*I’ve substantially edited this post a bit after posting (deleted a lot of redundant verbiage).

Worth watching and taking to heart:

3 thoughts on “How to Face Down the Secret Service

  1. Pingback: Nightcap | Notes On Liberty

  2. This story is highly relevant to the original post:

    It’s unlikely that newspaper reporting will ever give us all of the legally relevant details, but going just by what’s reported here, it seems to me that a competent attorney should be able to get this idiot off the legal hook. Here’s the definition of “interstate communication of threat,” at least in federal law (though I suspect he’s being charged under Michigan law, which I don’t feel like looking up):

    Here, just for fun, is Michigan’s anti-terrorist act, which criminalizes the making of terrorist threats whether or not one has the intention or capacity to carry them out:

    Click to access mcl-328-1931-LXXXIII-A.pdf

    It’s not accidental that our suspect is being charged with the former crime, not the latter. That suggests that the prosecutors don’t think they can nail him on the latter, rather sexy, terrorist charge.

    But I don’t think they can nail him on the other charge, either. What he said was stupid and reprehensible, but if you read it closely, it invites Booker to a tete-a-tete, then threatens to shoot him once he gets there–an outcome Booker could in principle avoid by declining the invitation. The threats made are ambiguous enough to be construed as a tortured, delusional version of self-defense, or an anachronistic invitation to a duel. Both defenses are outlandish, but could be made plausible by a good attorney willing to argue that his client was an outlandish person, and a jury willing to believe the same.

    In any case, this case is a far cry from the Texas one mentioned in the original post. At a bare minimum, it involves harassment of the Senator, something obviously absent from the Texas case. In short, I can see the Secret Service investigating this case, but not the Texas one, despite the fact that I don’t think that (from a criminal law standpoint) Simmons is guilty of all that much.


  3. If I told you I found these items purely by happenstance, you probably wouldn’t believe me, even if it was God’s honest truth. But it is.

    “Church Militant’ is a right-wing Catholic organization. The Rev. Alexander Santora is a prominent Catholic priest based in Hoboken, New Jersey. Apparently, the two mixed it up last year over Santora’s defense of a gay priest.

    If the Secret Service and its right-wing fans are to be believed, Rev. Santora deserves a visit from the police for threatening Church Militant with battery:

    Of course, if Rev. Santora himself is to be believed, when the cops show up to question him for threatening Church Militant, he should cheerfully invite them into his home (I mean, they asked), cheerfully answer every question they ask, no matter how tendentious or designed to entrap him in a crime, and view whatever happens next with perfect, Christ-like equanimity. Having done so, and found himself under arrest for assault (for threatening battery), he should then contest the charge in court in the full confidence that anecdotes about the good old days in Jersey City ca. 1930 will get him off the hook:

    So much for sanctuary! Perhaps someone should forward this item to Cardinal Law, care of the Vatican?


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