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What to do if you’re arrested: A guide for African Americans from 1968

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Some moments in history are so important that reading stories written decades after the fact is not enough. To get a fuller sense of events, you need to go back to see what people were living at the time.

It is because of that sort of significance — both historically and in the present — that we bring you these excerpts of an article that originally ran in Ebony magazine in November 1968, originally entitled, “What to do if you’re arrested.”

The original story was published in response to the troubles sparked by many clashes between law enforcement and African Americans — notably the Watts Riots in 1965 and 1967’s Newark and Detroit riots. Those events, and others like them, led to increased tensions between the police and many of the people they were supposed to help serve and protect. (“Considering the jumpy officers walking city streets today, running away is almost suicidal.”)

It is almost impossible to believe that this topic is as relevant in 2017 as it was in 1968.

Note: Some laws have changed over the past 49 years, and this is not intended as legal advice.

What to do if you're arrested: A guide for African Americans from 1968

A federal judge in Illinois relates the following tale. He has a black acquaintance who was stopped on the street by a policeman. During the frisk, the officer pretended to pull a knife from the man’s pocket, but a stranger had noticed the stop, had observed the cop palming the knife, and had warned the man. When he realized the victim had a witness, the officer passed off his conduct as a joke. The judge was asked what he did about the case. “Nothing you can do,” he said.

And in Cincinnati, a concerned cop discusses the problem. “Brutality?” he asks himself. “Sure there is brutality. And I mean physical brutality. It’s bound to happen in a large force and does, all around the country. I see reports by patrolmen and they say something about the defendant’s head being injured while he was being escorted from the car. Brother, what does that mean? The thing that bothers me is that police continue to receive high numbers of complaints and there are only a few instances where the complainant is upheld. They can’t be wrong that much — and we can’t be right that much.”

>> Use of ‘overforce’ criticized (1968)

Like that lone officer from Cincinnati, almost every black man and woman in the United States — and those other millions whose long hair, beads, hillbilly and Spanish accents, and native Indian habits mark them as different — know that the people are not wrong that much and that the police are not right that much. But in angry acquiescence like the stymied federal judge, they turn palms up and intone “nothing you can do.”

They are somewhat mistaken. There is almost nothing you can do, but there is a little.

For the individual, defense against police harassment means knowing your rights — to silence, to privacy, to legal action against abusive officers. For the group, it means steady pressure on governmental officials to get rid of the bad apples. and upgrade the habits and caliber of all other police officers. And it means vocal outrage whenever an incident of police brutality becomes known.

.  .  .

If the Fourth Amendment, like much of the Constitution, were not historically tainted, having been foreclosed to almost all black people at the time of its adoption and for more than 70 years thereafter, it might be one of the moral touchstones in the modern black movements.

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But since the drafters of the Constitution and Bill of Rights “didn’t mean us,” the Fourth Amendment and kindred protections remain only fragile tools which, if they develop into effective legal instruments, may someday be “ratified” by black Americans. They can, however, be used.

♦ For many, a street encounter with a policeman is emotionally trying even when the cop’s attitude is friendly. A first principle in dealing with an officer, as in facing any seemingly threatening situation, is to keep a cool head. Policemen are constantly in danger, and even the best ones may be jumpy and apprehensive.

♦ If something has happened on the street, and an officer asks you if you saw what occurred or if you know so-and-so, you may remain silent if you wish. You may not, however, give him any false information that would help someone who has committed a crime escape.

If he asks in implicating tones what you are doing in the area, you still have the option of remaining silent. You can tell him what you are doing, you can tell him your name and address, or you can tell him you do not wish to explain. It is your option, but it is better not to become surly even if he is.

♦ An extremely important point to remember when a policeman sounds like he thinks you broke the law is to ask him, quite directly, whether you are under arrest. The question is one of your aces. If possible, make sure some other person, potential witnesses, hear you ask the question. If the officer says ‘Yes,” ask him what for. He is required by law to tell you. If he refuses to tell you, remember the words he uses, and the people who overheard him, and be sure to make an issue of his refusal later on, to your lawyer and in the courtroom.

If the officer says ‘Yes,’ ask him what for. He is required by law to tell you. If he refuses to tell you, remember the words he uses, and the people who overheard him, and be sure to make an issue of his refusal later on, to your lawyer and in the courtroom.

If you are under arrest, you need not answer any questions. In fact, by this point, the officer is required to warn you of your right to remain silent. If he does not, you should remember his omission and make an issue of this also at a later time.

>> Prejudice – A name for racism (1968)

♦ If, when you ask whether you are under arrest, the officer says ‘No,’ ask him immediately if you may go. If he replies ‘No’ to your second question, you are, in effect, under arrest anyway. You should answer no questions and expect a warning of your right to remain silent. Anything you say could be used against you later. Watch your tongue.

If to your second question, he says something like, “I’d appreciate it if you’d wait a minute so I can ask you a couple of questions,” tell him you would prefer to go, and if you wish, tell him where he can reach you later if he still wants to ask the questions.

If he then tells you that you must stay, consider yourself under arrest and keep your mouth shut. You might, however, ask him again if you are under arrest. The point is to pin him down on the question of arrest. If you are not under arrest, you are free to go. And if you are not free to go, you are under arrest.

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♦ It is important that you remember the badge number of the policeman confronting you and what he looks like. Also remember what the witnesses look like and what everyone says. Also crucial is that you not run away from the policeman. Considering the jumpy officers walking city streets today, running away is almost suicidal.

♦ Resisting arrest, even when you think the arrest is illegal, is against the law and is guaranteed trouble. The problem here is that the charge of resisting arrest is one that seems to be abused by law officers. Like disorderly conduct, it is used as a catch-all to justify detention, and some local courts might find indications of resistance in even the most innocent acts. Scratching the ear might, for example, become cocking the list. The point is to stay cool and remember that some policemen are very nervous.

>> Also see: Whites have no reason to be surprised by civil rights movement (1968)

♦ Policemen have always had a right to search you if they carried a warrant authorizing the search or had arrested you. Now, after last spring’s U. S. Supreme Court decision, the officer has a right to search you if you look suspicious to him and if he thinks you look physically dangerous to him. This is “stop and frisk,” long used abusively against black people, and currently the law of the land. Further abuse can be expected.

If a policeman searches you when you do not think he has the right, do not try to stop him. You can tell him you do not give him permission to search you. Then remember what he says, what he looks like, and his badge number. That’s about all.

.  .  .

The problem in police conduct is not the laws. Over the past 15 years, through progressive legislation in some areas and through high federal court decisions, laws have become more tolerant of human differences and respectful of the individual’s humanness.

As far as race is concerned, every man has theoretically been set free; on the question of crime, the theorem that it is better to let a few sociopaths run loose than to punish innocent men has been largely accepted.

The laws are entitled to some deference. Even the Supreme Court’s “stop and frisk” decision, though a seeming capitulation to police harassment, leaves room for considerable hope.

>> Also see: Racism has no simple cure (1968)

In the opinion, the Court recognized that present court controls of on-the-street misconduct are ineffective and to be condemned, that a new form of police control must be devised, and that the issue has not been fully analyzed by the Court. The last observation suggests that the Court will speak again on police harassment, and perhaps more charitably.

Anomalously, however, enforcers of law have grown abusive in inverse proportion to the law’s increasing respect for individual liberty. The problem is primarily with people, not the laws, which are essentially only organizational tools. It is the old problem of fearful immobility in the face of change.

But it is characteristic of human beings that when we stand still, we move backwards. And the task confronting enlightened citizens is to make the police obey the laws.

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