Angle to Key West: Right to Remain Silent (6/13)

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Brooklyn, NY – June 13-17, 2013

“The best part is that the same police boat pulled me over half an hour later because they thought I might be a terrorist,” I told my friend Marisol. “So I got to thank them for escorting me the last 100 yards to Manhattan.”

“What?” she laughed.

“People were calling them because I was taking so many pictures and paddled under the ferry terminal’s walkway,” I said. “But who doesn’t take pictures after paddling to New York and there weren’t any signs telling me to stay away from the walkway. That’s where the current is the lightest.”

“They pulled you over?” she said. “How do you pull over a kayak.”

“There was a dock and they told me to get out, well, I guess they asked me really,” I said. “So I went to the dock and got out and talked to them for an hour about the trip. I even showed them my camera. I had pictures on there all the way back to Key West.”

“Wait, you just answered their questions,” she said.

“Yea,” I said. “I didn’t have anything to hide.”

Marisol shook her head and plopped her face into her hands.

“No, no, no,” she said. “You shouldn’t just answer questions.”

“But I hadn’t done anything wrong,” I said.

“Doesn’t matter,” she said. “Answering just reinforces the idea that police can stop and interrogate anyone they want. It makes it harder for people to remain silent.”

I looked at her. We’ve been friends since law school. We’d go dancing together, study for exams, and talk about relationship drama. Since then she’s worked for judges, the ACLU, and now represents some of the most vulnerable people in our country as a public defender.

“It’s important,” she said.

“I never thought about it that way,” I said.

I thought back to the dock. The police boat had vanished as soon as I reached Manhattan. I’d waved thanks and headed north along the seawall. An hour later I heard a whistle behind me, turned and saw the boat again. One of the officers leaned out and asked me to pull over to a floating dock hanging off a pier. I didn’t think to say no. I thought it was funny.

A quarter of my law school class works in New York. My dad and his two brothers are lawyers. I’ve got no record and have never been in trouble. I look a little rough after being on the water for so long, but I’ve never worried about talking to a police officer in my life.

They asked what I was doing taking so many pictures and why I’d gone underneath the terminal walkway. I laughed and told them I’d just paddled there from Key West so of course I was taking pictures.

“I’m just a tourist,” I said, smiling and offering up my camera as a goodwill gesture.

Then I pointed to the current raging in the Hudson.

“See how the water slacks off along the wall,” I said. “If I’d tried to go around the terminal, I would have been blocking traffic for an hour fighting the current and there weren’t any signs or anything saying not to go under the walkway. I didn’t want to bother the ferries coming in and out. Sorry, I didn’t know.”

There are signs everywhere in New York. Keep away. Security zone. Stay back. They adorn every bridge and hang off piers. If you’re not supposed to be somewhere, it’s obvious. The ferry terminal’s walkway didn’t have a thing on it.

They asked me where I’d come from that day. I told them. They asked for my driver’s license. I gave it to them. They asked about the trip. I answered with details from the Mississippi to the Gulf Coast to the Atlantic to the moment they escorted me the last 100 yards to Manhattan.

A new officer came up. Asked me again. The questions changed slightly. Where’d you start today? Where are you from? What are you doing? My answers stayed the same. I threw in more details, fine points about how the locks worked, how big the barges were, the freighters in New Orleans, and the Dismal Swamp canal. They asked more questions. Where are you going? Who are you staying with? Why’d you paddle under the terminal again? I answered and answered and answered.

They were nice. They were cordial and friendly. They smiled and apologized for stopping me for so long. They told me they needed to get one of their superiors down there to talk to me. I smiled and shrugged “no problem.” We all pretended they didn’t have guns and badges and all the power.

Time dragged. I answered more questions. My smile became a facade. People watched from the pier. I felt trapped and embarrassed. I wanted to explain that this was all just a misunderstanding. I wondered when I would be able to leave. I was scared that if I let my smile drop, if I stopped performing, if I said I wanted to remain silent or call a lawyer that everything would change.

I’d probably broken the law somewhere, some small regulation, some minor rule. I’m sure they could have questioned me elsewhere if they wanted to, come up with something and dragged me into a police station or written me a ticket with a thousand different violations. I felt so much pressure to cooperate, to make things easy.

They never said any of this. They never implied it. They were nice and friendly. The pressure just existed, hung in the air while we talked. Be nice or else. Play the game or else.

“You got any weapons in there?” one of them asked.

“No,” I said.

Then I thought about it for a moment.

“Well there’s a pocket knife for cutting cheese,” I said, still trying to play my naive little part. “And I’ve got bear spray stashed in the back.”

“There aren’t any bears here,” he said.

His voice hinted suspicion, like he’d found some crack in my story that he wanted to press, to push a little and see where it lead.

“There are in Minnesota,” I said. “And Florida too and the Dismal Swamp. Those guys are all over the place.”

True stories are easy to tell.

They ran my driver’s license and my answers checked out again and again. The supervisor came down and I talked him through everything. He nodded and disappeared for a moment then came back. They all got a kick out of the trip. Something snapped in the air. The pressure disappeared. The fear, the power evaporated.

I was free to go.

“So you just left?” Marisol said.

“Yea,” I said. “But not before I got a picture with them.”

She laughed. I handed her my camera.

“They were pretty nice guys,” I said. “In the end.”

“Classic,” she said.

I looked at her, my friend turned public defender. When she talks, I listen. She makes a quarter of what she could make in a law firm because she cares more about constitutional rights than a six-figure paycheck.

That’s when I understood what she was saying, why I should have been polite and said nothing, why I should have done my job as a citizen while the police officers did theirs even if it meant more trouble for me, why it’s important.

I went to law school. I was a lawyer. I come from a family of lawyers. I have a hundred friends in New York who are lawyers. I have a family who would support me through anything. I have friends who would have flown across the country to bail me out. I have financial resources. I don’t have a record. I have a great education. I can read. I speak fluent English. I’m have light skin. I was born in the United States. I’m a citizen. I’ve never had a bad experience with the police beyond a speeding ticket in Louisiana.

And I was too scared to enforce my rights.

What about the next person?

———-

I asked Marisol for help with what I should have said and the right to remain silent, here’s some of her thoughts to keep in mind:

The right to remain silent — a little esoteric, isn’t it? For many of us, it’s a “right” only in concept, because we never feel the pressure of having to exercise it. Sure, we can remain silent, but why not talk? If we have nothing to hide, won’t it only help?

If we assume a world free of coerced confessions, and, actually, free of “peer” pressure (because law enforcement officials are only peers of ours, right? There is no power dynamic going on there, right?), then we could assume that if we have nothing to hide, we have no reason to remain silent.

But I doubt you believe we live in a world free of pressure by the police. This is not to say that police officers are bad guys — I mean, I sometimes feel pressured by my friends! Add a badge, a uniform, how about some guns? I would venture to say that there’s an element of pressure whenever law enforcement are involved, and especially when they are asking YOU questions about what YOU are doing.

The coerced confession is not new news. It’s been around as long as our beautiful country is old. The idea behind the right to remain silent is simple: when we remain silent, law enforcement work has to focus on other, reliable, methods of investigation. This is not to say that every confession is coerced. But, some are (and how do we tell them apart?), and many are twisted and inaccurate.

When Dan asked me, “What should I have done when they questioned me?” I thought “Great question!” Here are some options, in preferred order:

(1) Ask “am I free to leave?” If yes, leave. You don’t have to talk to them. Happy Birthday America. If not, see (2)

(2) Not a word except for “I’d like to remain silent” (Repeat when the officer doesn’t accept this answer) (be prepared to spend some time with the officer). Bonus points if you ask for a lawyer!

(3) “Officer, my public defender friends are going to kill me and tell me I’m doing America a disservice, but if I don’t talk to you I’m afraid that you may arrest me (although I’m not aware I’ve done anything illegal), so I will talk to you.”

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16 thoughts on “Angle to Key West: Right to Remain Silent (6/13)

  1. Wow! What a crossing. Police escort and everything. I was on the edge of my seat the whole way. Could be a while before you have that much excitement again.

  2. Great story, especially since you eventually were let go! But I can see the point Marisol is making. Not all of us have no record, and not all of us have your resources and contacts and white skin, etc. But that name…Alvarez…even Canadian border patrol had a bit of a time with that in the past. Something to think about. I think the story was better because of your showing them all your pics and telling some of your stories, however. Probably made their day!

  3. Wonderful blog D. Your NYC experience has so far been amazing. Here are my 2 cents on this great discussion.

    Life is a balance and constitutional rights are the same way. Freedom of speech does not let you yell “Fire!” in a theater where there is no fire. Why? Because the balance for community safety and freedom of speech is essential for both to survive. Equally, the right to remain silent must be balanced by the police and citizens. I do believe in your situation you should not have remained silent because of two reasons: 1. The police’s public safety concern was legitimate and 2. Asserting the right to remain silent would have entailed a lot of police work to check you out and diverted limited police resources unnecessarily. Why do that when their concern was legitimate and they are in a situation where one mistake can cause significant repercussions in the world we live in. And the irony of that is that they had just helped you in the crossing. Now if they were stopping you because of some illegitimate/bogus reason, say race, ethnicity, bad hair day, then right to remain silent trumps despite of personal consequences to you.

    This is a great and enlightening discussion and differing opinions are of course appropriate. The better informed we all are the better civic actions we will take. My deepest gratitude to Marisol and public defenders — just like policemen, firefighters, and others in the government workers world they protect our freedoms and life every single day.

    By the way, did they question Frank, Frank Jr., or Wally? I assume Wally was not questioned although I doubt you would spend more that 5 years in jail (battery and gross negligence) if he had.

  4. Marisol’s comments offer a glimpse of what is wrong with America today. The officers were doing their job. Adopting an obstructionist attitude only makes their job harder. It may sound silly, but who knows what cargo your kayak may have held and whether you had suicidal tendencies? If you have nothing to hide, cooperate. Attitudes like Marisol’s give the ACLU a bad name.

    1. I think it comes down to where you want to draw the line between giving up personal freedoms for safety. I lean toward personal freedom even if it means living in a marginally less safe world. It’s definitely a grey area and will always have arguments on both sides, but I don’t think Marisol is saying be obstructionist as much as she is saying enforce your rights before they erode away.

      1. I think the police officers had legitimate concerns about who you were and what you were doing. I don’t see how answering some questions would erode your rights. If you would have refused they would have been justified taking you in and letting you get a lawyer. Waste of their time, your time, and the lawyers time. For what? Do you really think they’d be less likely to question someone the next time they thought something might be suspicious?

      2. I’m not sure they would have been justified. I’d broken no laws. I was in a public space on a navigable body of water, taking pictures, and staying out of traffic. Kayaking isn’t so foreign of a concept that it doesn’t exist in New York Harbor. Where would you draw the line between reasonable and unreasonable as far as police officers taking someone in for questioning? I think that is not so black and white.

  5. Ha! In minnesota a kayak on any navigable body of water is not something to worry about. It just goes to show you whats normal in one spot is not on the next!

  6. A kayak further north on the Hudson wouldn’t be suspicious. It’s just that Dan was coming from the wrong direction to be entering NYC. Since the people in that city as well as Boston, DC, etc., are “jumpy,” i grudgingly admit to reasonableness in the citizens’ complaints to the NYPD. They’ve always been pretty friendly when they stopped me, too — but i’m female, and usually neatly dressed. My sons didn’t always have happy experiences.

    I hope Marisol gave you one of the ACLU’s “busted” cards. I hand them to all the teens and young men i know since they’re the likeliest, unknowing targets. Link for printable file and video at http://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you

    Now about your computer …. be careful at the border, especially when you return to the States.

    Thanks, Marisol, for your teaching moments as well as your life defending us and our rights!

  7. police had legit concerns, be nice, don’t get wrapped up in the lawyer game. Your friend is wrong.

  8. I was so PSYCHED that NYPD boats met you on the water, for one clear reason: NYPD is hard at work protecting the public safety of the people in NYC. That includes residents, visitors, tourists and people the with VISAs to study and teach.

    I lived in NYC for 25+ years and I never ONCE felt “afraid” when I “saw a cop” on the road, the way people did in rural Minnesota. I remember asking friends in MN when they had a panic response, “what are you afraid of? You haven’t done anything wrong?” All they could say was “but,it’s the COPS!”
    WHAT?

    That is NOT what this Democracy is supposed to be about.. I am sorry for Marisol,

    That her work has dragged her so far down that she thinks not being a decent, truthful, cooperative citizen is a problem, IS a problem. I don’t care how many law degrees one has; when the NYPD ask you a question an HONEST answer is all any NYer would or should expect.

    Those officers were doing their job! And you, Daniel, did yours..No apologies needed.

    Great picture, too!

    1. I was pretty psyched to talk to them too at first, mostly because I thought it was funny and I wanted to thank them for helping me across the channel. I get along great with police officers and have a ton of respect for what they do.

      I’m less ok with them holding me on a dock for an hour and a half after it was clear I wasn’t doing anything wrong. I don’t think this is a black and white issue, but I think it is much more grey than I used to think after feeling pretty helpless for an hour and a half even though (to my knowledge) I’d done nothing wrong. I think there is room to push back on what is acceptable or not and that requires asserting rights because police are not going to assert them for you. That’s not their job, that’s your job, and this experience opened my eyes to how hard that is to do.

      As for your friends in Minnesota who are afraid of the police, the officers I met were cool and nice guys (as most police officers are), but I can understand if someone has had a bad experience with the police (and it definitely happens, there are bad apples out there), why they would react fearfully and negatively toward any officers.

      I’m glad that we’re all talking about this. I think it’s a good thing to think about and see different perspectives on, even if this is really just a blog about paddling.

      Edit: It is a great picture! Like I said, they were nice guys!

  9. Yes, and hour and a half seems like a long time. Your response to my comment was helpful and a good reminder. I am lucky, I have not had negative experiences. I am also probably insulated in that I am a white female. In hindsight I am sorry I was hard on Marisol. I can’t imagine doing what she does. The many points made are all valid and it is a good discussion to be having here. Thanks for sharing..
    Happy paddling!

  10. All good discussion and all comments valid. The main question here is, are all NYPD personnel this cute?!?

Comments are closed.