The first part of this opinion is, in my view, outrageous. I would not have thought that a holding like this was permissible in America, much less the Ninth Circuit.
Seriously.
Let me jut get two predicate facts established at the outset; principles that, I would have hoped, were indisputable.
First, the police can't detain you unless you're suspected of committing a crime. If even the police know that you haven't done anything wrong, they can't handcuff you, they can't detain you, they can't stop you from leaving. That's the Fourth Amendment.
Second, you don't have to talk to the police if you don't want to. I'm pretty sure there's something about that somewhere in the Fifth Amendment.
These principles seem fairly important to me.
So, in summary, if the police come up to you and want to talk to you, and you don't feel like talking to them, it's a fundamental principle of American jurisprudence that you can say: "Hey, respectfully, I want to exercise my Fifth Amendment right and not say anything. Good day, sir." And leave.
At least that was true until today.
Here, Cynthia and William Bernal -- a married couple -- were hanging out in their home. Everyone admits they hadn't done anything wrong. They're not accused or suspected of any crime whatsoever. But someone had reported to the police that their teenage son had allegedly told someone that he was going to shoot up his high school.
Now, that's a serious threat. We definitely want the police to investigate. So a squad full of police cars converges on the Bernal's home. The police have already called Mr. & Mrs. Bernal on the telephone, and Mrs. Bernal has said that there son wasn't there -- that he was at his grandmother's. But she doesn't want to give the caller the grandmother's location because the caller's phone number is hidden.
Makes sense to me, honestly. Could be a scam.
The police check their records and learn that there are no weapons at the Bernal's home. But they want to check it out anyway. So they roll up into the cul-de-sac, and see Mr. and Mrs. Bernal walking to their car in their driveway. The police get out of their vehicles and ask to speak with them.
Mrs. Bernal responds by saying the same thing she said over the phone: That their son isn't home, that he's at his grandmother's, that she doesn't feel like telling the police where that is, and that she doesn't feel like talking to the police further, so she's leaving.
Let me just stop there. Here's what I strongly feel:
That's her right.
She doesn't have to talk to the police. She doesn't have to tell them where her son is. I'm very, very confident that's part of the Fifth Amendment.
Maybe she wants to protect her son, or talk to him first. Maybe she fears the police might shoot him -- a not inconceivable position. Maybe she feels like the report isn't true and that her son isn't a danger at all. Whatever. She has that right. And, in my view, that's a pretty darn important one.
Moreover, you don't just have the right to be silent if you want. You also have the right to leave. If you aren't suspected of a crime -- if you're TOTALLY INNOCENT -- the police can't arrest you or stop you from going about your day. This is a pretty freaking darn important right as well. It's one that's a fairly fundamental distinction between, say, America, as opposed to other types of totalitarian police states out there.
But the Ninth Circuit today says: No. She didn't have the right to leave. Even though she had said, quite clearly, multiple times, that she didn't want to talk to the police, and that she wanted to leave, the panel says that the police had the right to keep her there. To physically block her car, to take her keys out of her hands, to handcuff her husband, and to keep her there so they could continue to interrogate her.
Mind you, not forever. But being detained (even in handcuffs) for "twenty minutes" is just fine.
As is perhaps clear, I strongly disagree.
Here's my rule, and one that, before today, I would have thought was entirely undisputed:
Once you unambiguously say (as Mrs. Bernal did repeatedly) that you don't want to talk to the police any longer, unless you're suspected of a crime, you're free to leave.
That's what it means to be in America. It's a fairly important part of the Bill of Rights. The police cannot force you to speak with them or to give information about your son that you don't feel like giving them.
I recognize that it's a potential school shooting. That's always serious. But rights are most precious -- and most at risk -- in precisely such settings. If there's anything we (should have) learned from our whole "torture memo" and waterboarding experiences, it's that.
You can't force an innocent person to talk to you. You can't handcuff someone that's innocent.
Plus, in all honesty, I don't even get the point of the exception. The Bernals said they didn't want to talk to the police. What's the point of detaining them? They have the right not to speak. What are the police going to do to them at that point? Start slapping them around? They're not going to talk.
The only point of detaining them, in my view, is either to coerce them or to punish them -- to keep them in handcuffs for 20 minutes -- for the completely valid exercise of their Fifth Amendment right.
That's not cool.
It doesn't bother me that the police can come up and try to talk to you on the street even if you're not suspected of any crime. Sure, that's a bit nerve-wracking, and (in the modern world) perhaps a little bit inherently coercive, because it's the full power of the state, personified by an armed officer in your face.
But the saving grace has always been that you're free to leave. That if you don't want to talk to them, you can simply walk away.
Until today.
