Should We Just Follow Orders? Rules of Engagement for Resisting the Police State

By John W. Whitehead
The Rutherford Institute
Oct. 08, 2014

“Let your motto be resistance! resistance! Resistance! No oppressed people have ever secured their liberty without resistance.”—Abolitionist Henry Highland Garnet

The perils of resisting the police state grow more costly with each passing day, especially if you hope to escape with your life and property intact. The thing you must remember is that we’ve entered an age of militarized police in which we’re no longer viewed as civilians but as enemy combatants.

Take, for example, Mary Elizabeth VandenBerg who was charged with disturbing the peace, a crime punishable by up to 93 days in jail and a $500 fine, for daring to vocalize her frustrations over a traffic ticket by reading a prepared statement to the court clerk and paying her $145 traffic ticket with 145 one-dollar bills. VandenBerg was also handcuffed, tasered and pepper sprayed for “passively” resisting police by repeatedly stopping and talking to them and stiffening her arms. The incident, filmed by VandenBerg’s brother, is now the subject of a lawsuit.

Zachary Noel was tasered by police and charged with resisting arrest after he questioned why he was being ordered out of his truck during a traffic stop. “Because I’m telling you to,” the officer replied before repeating his order for Noel to get out of the vehicle and then, without warning, shooting him with a taser through the open window. The encounter, recorded with a cell phone by Noel’s friend in the passenger seat, offers a particularly chilling affirmation of how little recourse Americans really have when it comes to obeying an order from a government official or police officer, even if it’s just to ask a question or assert one’s rights.

Eighteen-year-old Keivon Young was shot seven times by police from behind while urinating outdoors. Young was just zipping up his pants when he heard a commotion behind him and then found himself struck by a hail of bullets from two undercover cops. Despite the fact that the officers mistook Young—5’4,” 135 lbs., and guilty of nothing more than taking a leak outdoors—for a 6’ tall, 200 lb. murder suspect whom they later apprehended, the young man was charged with felony resisting arrest and two counts of assaulting a peace officer.

What these incidents make clear is that anything short of compliance will now get you charged with any of the growing number of contempt charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers that be—and that’s the best case scenario. The worst case scenario involves getting probed, poked, pinched, tasered, tackled, searched, seized, stripped, manhandled, arrested, shot, or killed.

So what can you really do when you find yourself at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to “serve and protect”? In other words, what are the rules of engagement when it comes to interacting with the police?

If you want to play it safe, comply and do whatever a police officer tells you to do. Don’t talk back. Don’t threaten. And don’t walk away. In other words, don’t do anything that even hints at resistance.

Keep in mind, however, that this is not a fail-safe plan, especially not in an age where police officers tend to shoot first and ask questions later, oftentimes based only on their highly subjective “feeling” of being threatened, and are reprimanded with little more than a slap on the wrist. Indeed, the news is riddled with reports of individuals who didn’t resist when confronted by police and still got tasered, tackled or shot simply because they looked at police in a threatening manner or moved in a way that made an officer fear for his safety.

For example, Levar Edward Jones was shot by a South Carolina police officer during a routine traffic stop over a seatbelt violation as he was in the process of reaching for his license and registration. The trooper justified his shooting of the unarmed man by insisting that Jones reached for his license “aggressively.”

If compliance isn’t quite your cup of tea—and we’d be far better off as a nation if we were far less compliant—then you’ve got a few more options ranging from legal-but-sure-to-annoy-an-officer to legal-but-it-could-get-you-arrested to legal-but-it-could-get-you-shot.

If this is war—and a good case could be made for the fact that the government is indeed waging a war on the American citizenry—then the tactics I’m about to outline could be considered nonviolent guerilla warfare, using whatever strategic, legal, creative and nonviolent means are available in order to outmaneuver an opponent—in our case, the American police force—whose language is the language of force.

To begin with, and most importantly, Americans need to know their rights when it comes to interactions with the police, bearing in mind that many law enforcement officials are largely ignorant of the law themselves. In a nutshell, here are your basic rights when it comes to interactions with the police as outlined in the first ten amendments to the U.S. Constitution:

You have the right under the First Amendment to ask questions and express yourself. You have the right under the Fourth Amendment to not have your person or your property searched by police or any government agent unless they have a search warrant authorizing them to do so. You have the right under the Fifth Amendment to remain silent and not incriminate yourself.

You have the right under the Sixth Amendment to request an attorney. Depending on which state you live in and whether your encounter with police is consensual as opposed to your being temporarily detained or arrested, you may have the right to refuse to identify yourself. Presently, 26 states do not require citizens to show their ID to an officer (drivers in all states must do so, however).

Knowing your rights is only part of the battle, unfortunately. The hard part comes in when you have to exercise those rights in order to hold government officials accountable to respecting those rights.

As a rule of thumb, you should always be sure to clarify in any police encounter whether or not you are being detained, i.e., whether you have the right to walk away. That holds true whether it’s a casual “show your ID” request on a boardwalk, a stop-and-frisk search on a city street, or a traffic stop for speeding or just to check your insurance.

As I point out in my book A Government of Wolves: The Emerging American Police State, if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re essentially under arrest from the moment a cop stops you.

Still, it doesn’t hurt to clarify that distinction, as Kahler Nygard learned. Nygard was threatened with arrest for failing to comply with an order by TSA agents to undergo additional screening after flying with no incident from Minneapolis to his final destination in Denver. It turns out that Nygard, at one time a vocal critic of the government, had been placed on a special list requiring him to undergo extra airport screening. When airport officials realized that they had failed to carry out the additional screening prior to Nygard’s departure, they attempted to cover their mistake by screening him once he landed. To the annoyance of the government agent, Nygard—who filmed the entire encounter—repeatedly asked the agent whether he was being detained or not. Once he deduced that the TSA had no legal rationale for detaining him, Nygard walked away without incident. The encounter might have ended far differently had a police officer been standing nearby, however.

Another important takeaway from Nygard’s experience is to record your encounter with police. While technology is always going to be a double-edged sword, with the gadgets that are the most useful to us in our daily lives—GPS devices, cell phones, the internet—being the very tools used by the government to track us, monitor our activities, and generally spy on us, cell phones are particularly useful for recording encounters with the police and have proven to be increasingly powerful reminders to police that they are not all powerful.

No matter what individual police officers might say to the contrary, members of the public have a First Amendment right to record police interactions, as the Justice Department recognized in a 2012 memorandum acknowledging that “recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”

That said, there may still be consequences for filming the police, as Fred Marlow learned the hard way. Marlow was charged with interfering and resisting arrest, and fined $5,000 for daring to film a SWAT team raid that took place across the street from his apartment. Marlow was asleep when he heard what sounded like “multiple bombs blasting and glass breaking.” Rushing outside to investigate, Marlow filmed police officers dressed in army green camouflage standing beside an armored vehicle, in the process of carrying out a SWAT team raid to serve a search warrant (more than 80,000 such raids take place every year in the U.S. for such routine police procedures as serving search warrants). Ordered to return inside or face arrest for interference, Marlow explained that he was on his own property and could be outside. He was subsequently arrested.

One popular alternative to citizens filming police encounters is having the police wear body cameras, which have been proven to decrease the number of use-of-force incidents and citizen complaints when used properly. Unfortunately, given that they can be turned off as easily as they are turned on, these devices are also ripe for abuse, not to mention the fact that they are privacy-threatening, roving extensions of the surveillance state whose cameras are conveniently pointed at us, not them.

Clearly, the language of freedom is no longer the common tongue spoken by the citizenry and their government. With the government having shifted into a language of force, “we the people” have been reduced to suspects in a surveillance state, criminals in a police state, and enemy combatants in a military empire.

In such an environment, as every resistor from Martin Luther King Jr. and on down the line has learned, there is always a price to be paid for challenging the status quo. Then again, the price for not challenging the status quo is even worse: outright tyranny, the loss of our freedoms, and a totalitarian regime the likes of which the world has never seen before.
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Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He is the author of A Government of Wolves: The Emerging American Police State and The Change Manifesto (Sourcebooks).