Bear Wilner-Nugent ‘95 on Constitutional Rights against Law Enforcement
On March 4, Reed alum and criminal defense lawyer Bear Wilner-Nugent ‘95 gave a talk entitled “The Law and Your Ass” in Vollum Lecture Hall. The talk was premised on two ideas. First, as host and Portland Alumni Chapter Board Chair Amanda Waldroupe ‘07 described, “it’s very clear that the current [United States presidential] administration is appearing to be authoritarian.” In regard to this idea, Waldroupe proposed that “knowing bare bones facts about your constitutional rights as an American citizen…is one of the ways in which knowledge is power and resistance.”
In order to more effectively promote resistance, Waldroupe invited Wilner-Nugent to repeat a Paideia class he has taught on multiple occasions on the constitutional rights individuals have during interactions with law enforcement. Infractions by law enforcement can occasionally be illegal, but many people in the public aren’t aware of this. This talk was an outline of guiding principles, and while it did offer some specific details about the structure of law enforcement, it should not be taken for legal advice.
With 20 years of experience as a criminal defense lawyer, Wilner-Nugent emphasized how often his clients made avoidable mistakes in their interactions with law enforcement due to the exploitative behavior of police and unknown or twisted aspects of the legal system.
Wilner-Nugent focused on a few key ways in which an individual may interact with law enforcement: stops, arrests, and searches. He outlined what rights the federal and Oregon constitutions guarantee an individual, and how unaware citizens may have those rights legally or illegally trespassed.
Due to a 1984 court decision, state courts have a higher authority to interpret the state’s constitution than federal institutions. Following from this, there was a continual emphasis on how Oregon has a set of constitutional rights well above the federal floor, and how the advice given in the talk may not apply in other states. In Oregon, an individual is guaranteed certain rights with regard to personal privacy and interaction with law enforcement. Usually, a court approved warrant is required to trespass on those rights, but there are exceptions.
Perhaps the most insidious exception is the consent exception. If an individual waives their rights, knowingly or unknowingly, defense lawyers have a much more difficult job claiming the police’s behavior is unlawful regardless of the actions. Wilner-Nugent described how “police have honed—to a fine art—the ability to make someone give up their consent,” or to make an individual feel unable to use their rights. Often, police will try to make it seem like cooperation will make the current situation go away or win favor with a prosecutor down the line. Either of these may be outright lies, which police are legally allowed to say (except for with regards to your Miranda rights, or your state of arrest).
Notably, police need no justification or probable cause to talk to an individual or ask them to waive certain rights. Wilner-Nugent described how police frequently try to begin a conversation which is entirely consensual. In these cases, individuals are fully within their rights to walk away or remain silent, although they have been conditioned to stay and converse with authority figures.
Being very careful in communications with law enforcement was a recurring theme of the talk. Wilner-Nugent stated, “there are no circumstances where talking more will help you more.” Instead, until one is detained, the best course of action is to avoid communication.
Wilner-Nugent explored the distinction between the states of being free, detained, and arrested. Any person on American soil is, by default, free. However, they can be detained for a short period of time by officers with “reasonable suspicion,” which Wilner-Nugent described as “better than intuition, a whim, or a hunch, but not much better.” Any verbal justification that may be provided (not necessarily in the moment, in fact possibly months later) is valid reasonable suspicion. A “stop” is a detention, which is any command that controls your movement (i.e., “stop,” “come here,” “sit there”). If you are not detained, you are legally allowed to not respond and walk away.
Detentions are not supposed to last more than a few minutes. If one continues for longer than this, defense attorneys start having an argument that you were illegally arrested. Hence, at any point during your detention, you’re allowed to ask if you’re free to go. You are also not obligated to give any identification while detained (except for traffic stops), but the same is not true while under arrest.
An individual becomes “under arrest” when they’ve been directly told so or they’ve been handcuffed or they’ve been moved to a different location by a police officer. If one is arrested by the police, they are legally required to read you your Miranda rights. Miranda rights are the classic “You have the right to remain silent, anything you say can and will be used against you…” spiel. In another insidious removal of rights by consent, an officer may finish reading the lines, say, “Do you understand and waive these rights?” and be legally justified in ignoring the rights if the arrested says “yes.” According to Wilner-Nugent, you should "say [a metaphorical] 'no' to talking after hearing that question” that is, something along the lines of, “‘I wish to remain silent until I can talk with a lawyer’ or near enough that."
Once an individual has been arrested, Wilner-Nugent detailed some of the criminal prosecution process. Once arrested, you may be taken to a detention center. At this point, you have the right to an attorney. This only applies if you’re being prosecuted (when exactly you start being prosecuted is still a contested question). If you declare your right to an attorney, you’ll get a pause in interrogation until a lawyer is representing you. Until you meet with your attorney, you should remain silent and not reply to any of the questions from law enforcement. Responding to questioning can be interpreted as waiving your right to remain silent until you’ve seen an attorney. The exception to this is answering basic questions posed by the staff of the detention center, who operate differently than law enforcement.
Unfortunately, asking for a lawyer and pausing interrogation doesn’t mean you get to leave. In fact, it will typically just leave you in detention for longer. As Wilner-Nugent lamented, “The criminal process is very slow and cumbersome, and sucks away a lot more of your time than you think it will.” He suggested that one of the ways you can best help a friend who has been arrested is simply to cover for the responsibilities that they won’t be able to handle due to the time spent in court.
Oregon has a very progressive system for bail, which is typically a system to ensure the convicted show up for their court date. The first time you are in front of a judge, you are assigned a court date and may receive some form of release. For minor crimes, you may be released “under recognizance,” which means they trust you to appear in court without external motivation other than not digging yourself a deeper hole. Above that, there's conditional release, which is more or less probation with a responsibility to return to court. Finally, there’s security release, which is essentially bail—a deposit of money to the state that you get back if you come to court.
If you do get drawn into the legal system, Wilner-Nugent had one piece of advice: don’t try to win a legal battle without a lawyer. And with regards to your lawyer, be honest with them (they are bound by attorney-client confidentiality) and work with them as much as you can.
Wilner-Nugent finished the talk with some specifics of practical advice. For example, you greatly reduce your rights when you get behind the wheel of a moving vehicle (bicycles included). For example, you can be stopped without probable cause. However, in Oregon, the same does not apply for passengers; if the police stop your car, any passengers are completely free to get out of the car and walk away.
An important note is that exercising your rights cannot be used as evidence of a crime. Walking away or refusing to respond does not add to probable cause under the Oregon constitution. Similarly, you may refuse consent to a search unless there is a valid warrant. Searches technically require a warrant, but there are a number of exceptions through which police may search spontaneously. Wilner-Nugent pointed out that Oregon has a law declaring that opaque closed containers on someone’s person are illegal for law enforcement to open and search (unless the container is labeled with its contents).
While Wilner-Nugent noted that carrying contraband with you is generally not advisable, he suggested that doing so in an unmarked, opaque container would offer more legal protection. Additionally, he recommended against carrying ID in a purse. If ID was requested by an officer, it would cause the purse to no longer be a closed container.
In this spirit, Wilner-Nugent outlined a number of things to take into consideration when attending a protest. It is illegal to secretly record an interaction, especially with police, but explicitly showing that you are filming makes it okay. “Plain view” often allows police to act whenever they see something illegal happening. But notably, there is no plain view on a phone or computer. Due to this, phone searches don’t particularly happen at protests, unless someone is doing something very obviously illegal on their phone. Generally, a warrant is needed to search someone's phone, and if a police officer asks you to open yours without one, you can say no. Your phone conversations are secure (i.e., not wire--tapped) simply because it’s too much of an expensive hassle for law enforcement to listen in on everyone. In this regard, information on Signal is very unlikely to be hacked. What’s far more likely is that someone in a group chat will know your information, and then the police will get it from them. This human element is why you shouldn’t talk about committing crimes online, according to Wilner-Nugent.
Oregon also offers some protections from “compelling circumstances,” which are cases where the intensity or psychological gravity of a situation, or a “police-dominated atmosphere,” pressure you into making bad choices. But of course, it’s best just to try not to get overwhelmed in difficult situations.
Finally, Wilner-Nugent had this to say about the current state of affairs: “We are approaching a moment where mass participation may be necessary to generate change.” He emphasized the importance of these movements being mass. The ratio of sworn Portland police to citizens is approximately 1:700. The FBI compared to US citizens is more like 1:25,000. Wilner-Nugent claimed that at a certain point of political movement, law enforcement is unable to effectively respond. In attending a protest, you are always taking a risk of being messed with by law enforcement. However, the more people you can get to join you—regardless of whether you agree with them on all issues—the safer you will be.
Wilner-Nugent offered one final piece of novel advice. He suggested that today you decide where you will draw the line. What constitutional rights will have to be violated, what executive order would need to be issued, what assault on democracy must occur in order to get you out on the street? If that line has already been crossed, then how will you get involved?
This talk was brought to Reed with the help of Amanda Waldroupe ‘07 from the Portland Reed Alumni Chapter. For those unaware, Reed maintains connections with a number of nationwide chapters of graduates who wish to remain involved with the college, stay in communication with those they met while at Reed, and make new connections. Waldroupe mentioned that, as a queer female journalist, she has been feeling the anxiety associated with the recent presidential actions. Part of the reason she helped plan the talk was to highlight how Reed alumni can help current students through crisis. She said when opening the talk, “I think I speak for all of the alumni in saying ‘we are here for you.’” Reedies and alumni should work together, and with the rest of the larger Portland, national, and international community, to affirm the constitutional rights guaranteed to all Americans.