What Happened to American Federalism

From a worthwhile essay surveying the devolution of American federalism into a kludgeocracy:

In a purely federal system, in which governmental functions were clearly differentiated between the national and state governments, federalism would not translate directly into complexity. But that is not American federalism as it is currently practiced. “Our federalism” creates a bias toward sending money to the states, even though the cash always comes with a laundry list of regulations and requirements attached.

One of the clearest findings in the study of American public opinion is that Americans are ideological conservatives and operational liberals. That is, they want to believe in the myth of small government while demanding that government address public needs and wants regarding everything from poverty and retirement security to environmental protection and social mobility.

This ambivalence in expectations creates a durable bias in the actual outputs of American government. The easiest way to satisfy both halves of the American political mind is to create programs that hide the hand of government, whether it is through tax preferences, regulation, or litigation, rather than operating through the more transparent means of direct taxing and spending.

Steven Teles

Pet dogs now fly as “Psychiatric Service Animals”

Effective January 2021, DoT ruled that air passengers can no longer bring arbitrary pets on commercial flights by claiming them as “Emotional Support Animals.” They can, however, bring up to two dogs on board if the passengers claim the dogs are “Psychiatric Service Animals.” All the passenger has to do is fill out this single-page form. There is no independent verification of the claim that either (a) the passenger has a disability or (b) the dog has specific training to assist with a disability.

Essential Reading of the Week

I have complained for years about the life– and liberty-infringing rule of the Food and Drug Administration (FDA). Scott Alexander gives detailed explanations and arguments for how the FDA does more harm than good, as well as how stupid people lead to stupid policies and stupid government like the FDA. #EssentialReading

I’ve also been reading Theodore Dalrymple’s book Life at the Bottom. A striking sociologic survey of the endemic pathological behaviors by which people mire themselves in misery, as well as the policies and institutions that keep them there. #EssentialReading

Capitol Police: No Accountability

Detailed here: Now six months after the “Capitol Riot,” the U.S. Capitol Police (USCP) have not even released the name of the plain-clothes officer who shot and killed an unarmed female protester. (His was the only round fired by anyone during the four-hour melee.)

The name of the officer (USCP Lieutenant Michael Byrd) was accidentally mentioned, and recently discovered, in a recording of a hearing on the Capitol Riot. Armed with his name, he has been identified in other footage from that day. Here is a photo in which he can be seen with his finger on the trigger of his pistol:

USCP Lt. Michael Byrd shown with his finger on the trigger of his pistol.

If regular citizens were caught with a finger inside the trigger guard of a firearm when they were not justified in shooting, they would almost certainly be charged with crimes, starting with felony reckless endangerment. In this case, the reckless cop subsequently killed someone but has since enjoyed over six months of official anonymity, protection, and paid vacation (“administrative leave”).

August 2021 update: After eight months the Capitol Police decided the killer hadn’t done anything wrong.

Cops: No Accountability

If you don’t resist, cops can provoke you to resist.

This innocent man was assaulted by cops who claim to have mistaken him for another person with an open arrest warrant. Although he is clearly trying to comply with their chaotic commands, one of the cops shoots him in the back with a taser. The man flinches but the taser malfunctions. The cop then jump-kicks the man in the back. The man turns in disbelief and then is tackled by three deputies, who subsequently charge the innocent man with “resisting arrest.” (See details and more of the video, recorded by the man’s sister before another deputy assaults her.)

Months later the Sheriff released the following statement regarding the incident:

The Sheriff’s Office conducted an administrative investigation, the allegations were sustained against the deputy, and appropriate action has been taken. Specifics regarding discipline are part of a peace officer’s confidential personnel file, which we are prevented from disclosing under the law.

Accountability? We have nothing but the Sheriff’s word that “appropriate action was taken.” When? By whom? And what did it consist of? For all we know the cop who attacked and provoked the peaceful citizen got a pat on the back.

Police Homicide of the Day

This happens hundreds of times a year: Cop kills someone. Cop gets “administrative leave” (paid vacation). Law enforcement promises to “investigate” the shooting while demanding victims and the public be patient. In this case, as a typical example, the Sheriff says:

Deputies are often forced to make split-second decisions. Second-guessing those decisions, especially when the facts are still unclear, is dangerous and unfair.

Lonoke County, AR, Sheriff John Staley

Hey Sheriff, know what else is unfair?* Giving cops deference not afforded other citizens in the use of force. Know what else is dangerous? Giving cops lethal weapons and a license to kill any time they “fear for their life.”

Guess what happens when a regular citizen produces a gun for self-defense – even without killing anyone? Arrested and held (without pay) in jail. Further, at the whim of local prosecutors: Often held for criminal trial, which can personally cost the citizen many tens of thousands of dollars to defend and put their life on hold for years. In contrast: Cops enjoy broad (“qualified“) legal immunity, plus customary exemption from arrest and criminal charges by other law enforcement officers (including prosecutors). When a cop is tried for violating another citizen’s civil rights, the cop’s civil defense – and any judgment – is billed to taxpayers. The cop’s union ensures that he loses neither wage nor public pension.

* Leaving aside the obvious question of whether it’s “fair” to kill a 17-year-old boy.

Cops are not Heroes

There are heroes who happen to be cops. But being a cop does not make one a hero. The occasional acts of heroism that earn cops commendations are done by plenty of people who aren’t sworn and paid “to protect and serve.” Rushing into a dangerous situation to aid others? Gestures of kindness or compassion that go above and beyond the call of duty? All routinely done by everyday heroes.

Cops actually enjoy more protection than the average citizen:

  • Law enforcement is not a particularly dangerous career.
  • Cops enjoy immunity against acts of omission – they have no legal obligation to aid any particular member of the public. In contrast, it is often a crime for a member of the public to not come to the aid of a police officer!
  • Cops enjoy special legal protections: merely touching a police officer can constitute aggravated assault and is often its own crime.
  • Cops enjoy qualified immunity against acts of commission. Cops harass and arrest people with such impunity that their abuse of discretion goes by the common name “contempt of cop.” Victims of police abuse have no practical redress: Expensive and often fruitless civil lawsuits can only be filed against the government, not against the abusive officers.
  • Cops enjoy qualified immunity and substantial deference in using force against members of the public. Governments don’t reliably collect data on the use of force by police – not even the use of lethal force. Prosecutors are notoriously hesitant to bring criminal charges against their fellow law enforcement officers. The only redress available to victims of police violence are mostly futile civil lawsuits against the government.
  • Abusive cops are protected from adverse consequences by powerful police unions. Claims of police violence generally disappear into secret internal investigations that impose no apparent consequences on violent cops.

Bad cops may be a minority, but every law enforcement officer is morally responsible for shielding them. If cops were heroes they would not tolerate those in their midst who abuse the office and victimize the public.

Do you think cops need your thanks or support, in addition to the broad Blue Privileges they already enjoy? Take a look at what cops are paid. Of course this varies by jurisdiction, but it’s not hard to find cops raking in six-figure incomes while accumulating a similar government-guaranteed lifetime pension that pays out after as few as 20 years of “service.”

Inflation Fears Again

The Biden Administration is providing the biggest positive stimulus to demand since WWII, and at the same time doing everything it can to suppress supply. Higher [unemployment insurance] benefits, closed schools (which keep one parent at home), and promised corporate tax hikes practically guarantee that supply can not keep up with demand. It is a recipe for an inflation shock we have not seen in the U.S. in a generation.

 Kevin Hassett

It has been a decade since I last wrote about inflation. Now the U.S. government and the Federal Reserve seem to be doing everything possible to spark dollar inflation.

Is this bad? Yes if: (a) you hold U.S. dollars, or (b) you have to pay capital gains taxes in U.S. dollars. Not so much if: you owe debts denominated in U.S. dollars.

What can you do to protect against inflation? Financial securities price in inflation faster than you can (e.g., TIPS give negative yields, commodity futures enter contango), so by the time “inflation” is in the news you can’t generally buy a direct, liquid, inflation hedge in the markets. Buying and holding useful commodities is a hedge against inflation. Real estate is a useful quasi-commodity. Unfortunately real estate prices are, if anything, leading inflation in the last year. But if you already own your primary residence there’s one thing you can and should do: Mortgage your home to the limit. The government actually subsidizes mortgages (offering credit guarantees for some, and offering a tax credit for mortgage interest). Mortgage loan rates are at historic lows – basically equal to inflation on an after-tax basis. And here’s the clincher: Mortgages are dollar-denominated debt – the one thing that comes out ahead in a dollar inflation scenario.

The other subsidized government investment is the inflation-protected I bond. It’s more of a savings vehicle, and I bond purchases are limited to $10,000 per year per person.

Made in China: The COVID Pandemic

This article lays out overwhelming circumstantial evidence that SARS2 was created in and released from the Wuhan Institute of Virology.  The level of incompetence that led to the outbreak is astonishing. As is the diligence of the political conspiracy to cover this up.

Researchers at the Wuhan lab were engaged in a project that explicitly involved modifying bat-based coronaviruses to infect the human respiratory tract. (SARS2 is a bat-based coronavirus that is optimized for infecting human respiratory cells.) The most unconscionable news is that this project was conducted in a BSL-2 lab! (As the article notes: BSL-2 is essentially the level of protection against infection practiced in a typical U.S. dental office. I previously derided the idea that Chinese could be relied upon to operate a BSL-4 facility, which is the only place where creation of new human pathogens should occur – if anywhere at all.)

The only obstacle to “proving” that SARS2 was produced in that lab is China’s impounding of the lab records.

Cloth Masks Are Worse Than No Masks!

As of this week virtually everybody in the United States who wanted a COVID vaccine has been able to obtain one.

And yet … governments and commercial establishments are still mandating that everyone wears a mask (or “face covering”). Apparently wearing a mask has turned into a sort of political statement – a sign of submission to arbitrary authority?

I found this study from 2015 that compared cloth masks to disposable surgical masks in hospital settings in which workers were exposed to influenza (that other deadly, contagious respiratory virus). The authors did not expect to find a difference in protection between the two mask materials. What they found was that subjects who diligently wore cloth masks ended up with higher infection rates than the control group or the subjects assigned to wear surgical masks.

Moisture retention, reuse of cloth masks and poor filtration may result in increased risk of infection. Further research is needed to inform the widespread use of cloth masks globally. However, as a precautionary measure, cloth masks should not be recommended for HCWs, particularly in high-risk situations, and guidelines need to be updated.

MacIntyre, C Raina et al. “A cluster randomised trial of cloth masks compared with medical masks in healthcare workers.” BMJ open vol. 5,4 e006577. 22 Apr. 2015, doi:10.1136/bmjopen-2014-006577

Tax Optimizing Health Insurance

How the tax code creates “Cadillac” health insurance plans

For as long as I have been doing taxes I have marveled at the peculiar ways in which federal income tax code treats healthcare and health insurance.

Whether you are employed (W-2) or self-employed (Schedule C), you can pay for health insurance with pre-tax dollars. In IRS terms: Health insurance premiums are fully tax deductible.

In contrast, money you spend on healthcare is an “Itemized Deduction,” which means it comes from post-tax dollars … unless it exceeds the Standard Deduction (which, for 2020 the Standard Deduction is $12,400 per taxpayer), in which case it is pre-income-tax but post-FICA-tax. (And it’s more tax-efficient to keep the Standard Deduction whenever possible.)

The difference between pre-tax and post-tax dollars can be significant: If your marginal income tax rate is 24% then, together with FICA tax (15.3% for 2020), taxes cut each additional $1.00 you earn to just over $.60!

As I described last year: “Health insurance” is not just insurance, but also a tax- and price-advantaged way of buying any covered medical services. Hence the incentive for “Cadillac” health plans, which have low deductibles so that they pay virtually all of your healthcare expenses, instead of only expenses that exceed some catastrophic level. A very-low-deductible health plan can provide net savings for employed taxpayers that expect to spend thousands of dollars a year on routine healthcare.

Amusingly: The Affordable Care Act imposed a 40% “Cadillac tax” on the cost of health plans considered excessive. That tax was delayed and finally repealed in 2019.

The Pernicious Myth of Police and the “Split-Second Decision”

We must have leaders willing to support those who are tasked with making split second decisions that may mean the difference between life or death.

Law Enforcement Loyalty PAC

Apologists for U.S. police often allude to cops having to make “split second decisions,” by which they mean deciding whether to shoot people. This is wrong. In my next post I will explain why if police do their job properly they should never have to fire a gun at anyone or anything. Today I want to dismiss the notion that anybody would reasonably want or ask typical law enforcement officers to make split-second decisions to do anything that could kill someone.

Nobody should be making split-second decisions to use lethal force. Certainly not police! Cops are not trained to military levels of competence with weapons and rules of engagement. They aren’t operating in a designated war zone. Police are mediocre people: prerequisites for the job are only mediocre IQs and mediocre performance at mediocre two- or four-year schools. Police training is mediocre, and the practical use of lethal force is not their primary job.

So have we really handed over half a million full-time cops a badge, a gun, and a license to make split-second decisions to shoot people? And if a cop doesn’t make the right split-second decision? C’est la vie; live and learn. Well, the people cops kill don’t get to live. But what’s the saying,

Better that 20 citizens die than one law enforcement officer not complete his shift?

That’s right: Roughly 50 American cops die in the line of duty each year “as a result of felonious acts.” In contrast, American police use their firearms to kill about 1,000 people each year (that’s not all killings, only those police kill by shooting).

Wholly unscientific rules, restrictions and mandates

Dr. Nathan Sneddon, my brother-in-law, shared the following illumination of arguments made by Dr. Scott Atlas:

In March of 2020, there was very little we knew about COVID-19 including its mortality rate and how it can and cannot be spread. We knew it was associated with Acute Respiratory Stress Syndrome and this is generally how COVID becomes lethal. But we knew very little more about it beyond that.

However, based on empiric evidence, we know much more now. Dr. Atlas’s summary of “wholly unscientific rules, restrictions and mandates” include:

  1. Closures of businesses
  2. Closures of in-person schools
  3. Mobility restrictions
  4. Curfews
  5. Quarantines
  6. Limits on group gatherings
  7. Mask mandates

Dr. Atlas summarizes how these either are not based in science or have not prevented the spread of COVID-19:

  1. Bendavid et. al. demonstrated that mandatory stay-at-home and business closures were associated with “no significant benefit on case growth”: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7883103/
  2. “Younger people have little risk from this infection” (case fatality rate is essentially zero for anyone under age 40 and only minimally beyond zero for pages 40-50): https://www.nature.com/articles/s41598-020-73777-8
  3. “Young children are less likely to transmit COVID.”  Posfay-Barbe et. al. demonstrated that children actually acquire COVID from adults rather than transmitting it to adults: https://pediatrics.aappublications.org/content/146/2/e2020004879
  4. NIH states: “When consistent distances is not possible, face coverings may further reduce the spread of infections droplets from individuals with SARS-CoV-2 infection to others.” 
  5. A randomized controlled study from Denmark by Bundgaard et. al. showed that widespread mask usage has only minimal impact on COVID infection rate: https://www.acpjournals.org/doi/10.7326/m20-6817
  6. The WHO prior to Oct 2020 stated that “the widespread use of masks by healthy people in the community setting is not yet supported by high quality or direct scientific evidence and there are potential benefits and harms to consider.”

My Chinese business anecdote

It has been a year since the world began to realize the severity of the pandemic that began in Wuhan, China. The Chinese government has blocked efforts to determine whether the virus emerged from the Wuhan Institute of Virology, which has hosted a Biosafety level 4 (BSL-4) lab since 2015. Anyone familiar with Chinese standards of care and compliance can be forgiven for questioning the capacity of Chinese to safely operate a BSL-4 lab. Imagine if the same people who “translate” Chinese product instructions into English translate specifications for containing the most dangerous biological pathogens into Chinese.

A few years ago a Chinese exporter of gun scopes contacted me to ask if I could recommend him to domestic distributors.  He said his company was already making scopes for the U.S. market, but selling them white-label instead of under their own brand.  I figured they were probably supplying the chintzy scopes used for Airsoft, not optics that would meet the standards of even the cheapest American firearm shooter.  He insisted their scopes were being sold for use on real firearms.

Skeptical, I talked to him further and emphasized, “You’re not going to succeed here if you can’t meet the minimum performance standards and specifications everyone expects.”  I went back and forth a few times explaining and detailing the various standards and levels of performance.  He declared that their scopes would meet the most stringent specifications I had described – that they actually test their products to meet those – except he wasn’t sure about how they would hold up on medium cartridge recoil.  So I said, “I can run the tests including heavy recoil on medium cartridges.  Send me some samples.  I’ll test them exactly the way I described, and if they are up to spec I’ll publish my review and introduce you to some distributors that will take a serious look.”  Soon I got three scopes in the mail.  The very first test was water immersion.  (The second test is normally freezing to condense and show any tiny amount of water vapor that might have penetrated during the first test.)  I explicitly told him via email that water immersion would be the first test.  So I put two of the three scopes in a shallow tub of water and bubbles started coming out of them.  I hadn’t even gotten to the standard test depth of 1 meter.  We’re talking like 2 inches, and these things were filling with water like a submarine with a screen door.  A day later the external fasteners on one of the scopes showed visible rust. I emailed him photos, and noted that I was disappointed that I hadn’t even gotten to the point where I look through the scopes.  Now, despite this abysmal product sample failure, he still followed up with me several times over the next year.  Each time I said, “I can’t help you if you can’t show me a product that does what you say it will do.”  Apparently statements like that don’t translate into Chinese….

What they don’t want you to know about COVID-19 lethality

Last November, an analysis of CDC data on COVID-19 deaths by academic Genevieve Briand was given a good summary in a Johns Hopkins University newsletter … and then retracted and attacked because, “[It] has been used to support dangerous inaccuracies that minimize the impact of the pandemic.” The race to stifle and discredit the “inconvenient” Briand analysis was Orwellian.

The data Briand referenced are undisputed. The analysis is good, and the conclusion is both reasonable and amply supported: In the U.S., the number of deaths attributed to COVID-19 appear to be reducing the deaths attributed to other diseases on a virtually 1-to-1 basis. I.e., COVID does not appear to increase death rates.

Put another way: For every person COVID “kills,” it appears to save a person from dying of another deadly disease.

The smoking gun is the U.S. CDC’s instructions to medical examiners and coroners, who are the source of death statistics in the U.S.

COVID-19 should be reported on the death certificate for all decedents where the disease caused or is
assumed to have caused or contributed to death

New ICD code introduced for COVID-19 deaths. (Bold in the original.)
From Covid-19 Deaths: A Look at U.S. Data: Deaths attributed to COVID reduce deaths contemporaneously attributed to other diseases.

IRS: Not really available to help

I had a question about how to properly file taxes in an unusual tax situation. Why not go to the source?

  • Federal law established the Internal Revenue Service (IRS) to promulgate the rules and regulations that all taxpayers must follow to certify that they are in compliance with tax law.
  • The IRS can fine persons for any failure to file and pay taxes in compliance with its rules.

Government bureaucracies may not be fast, but “Surely,” I thought, “the IRS will tell me how to correctly file and pay taxes in my particular situation.” After all, if I don’t do it to their satisfaction they can fine me.

I thought I’d write a letter and wait a few months for an official written response on which I could rely.

But no! The IRS is so eager to help that it encourages individual taxpayers to call and speak to its agents directly! Except that due to COVID “IRS live phone assistance is extremely limited at this time.

So can you Email or mail your question to the IRS? No! The only alternative the IRS volunteers is to schedule an appointment for an in-person meeting at one of its local offices. Surprise: Most of those offices are short-staffed and only deal with people who have been assessed fines and want to work out payment plans.

All search paths ended with an instruction to call the IRS by phone, so I relented and called its “extremely limited” telephone assistance line: 800-829-1040 … 1 … 2 … 2 … 3 … 4. Five levels into the automated phone tree I got a recorded message telling me to go to IRS.gov and look there for the answer to my as-yet unarticulated question. Then the automated system hung up on me.

(Yes, I already exhausted my web browser searching for an answer to my question on IRS.gov.)

Undaunted, I tried a different path: 800-829-1040 … 1 … 2 … 2 … 3 … 1. After 15 minutes a real live IRS employee answered the phone! He asked me to explain my question and helpfully concluded that I would have to speak to someone in the IRS “tax law area” for an answer. He transferred me to that “area.” Where an automated message said, “Due to high volume, we are unable to assist you at this time. Please call back at a later date.” Then the IRS phone system hung up on me again.

Health Insurance is a Misnomer

Happy Health Insurance Open Enrollment! This seems like an appropriate time to think about the peculiarities of healthcare markets in the U.S.

Most “health insurance” as presently sold in the U.S. is not entirely insurance. Health “plans” (not “policies”) combine insurance (i.e., protection against unusual or unexpected costs) with a service contract. The service part of the plan can reduce or reimburse at least part of every dollar you spend on healthcare, even before you hit a plan’s “annual out-of-pocket maximum” (which is when the component that meets the traditional definition of “insurance” kicks in).

Normally I recommend against buying bundled financial products. Health plans are an exception for two reasons. The first is that the tax code allows you to pay “health insurance premiums” with pre-tax dollars, but you have to use post-tax dollars for “out-of-pocket” healthcare costs. So it can be more tax-efficient to buy “health insurance” with a low deductible so that more of your medical spending is done with pre-tax dollars. (Yes, if you spend enough out-of-pocket then that’s an itemized deduction, but I’ll explain in a future post why that’s still not as efficient as using pre-tax dollars.)

There’s a bigger reason to buy a health plan together with insurance: An individual consumer can’t easily pay a market rate for healthcare. Medical service providers list and bill outrageous prices that are many multiples of the fair market rate. Large buyers – health insurers and government programs like Medicare – negotiate market (a.k.a. “reasonable and customary”) rates that they will actually pay for covered medical services. If you’re not covered by one of those large buyers you (1) can’t easily learn what the “reasonable & customary” rate is, and (2) could be subject to collection efforts for the full (and absurd) list rate. As an individual you can negotiate a “cash” rate that is close to the reasonable & customary rate, especially if you are shopping in advance. But that’s much harder to do when you need emergency medical care. When you buy a health plan you’re buying access to fair market rates for medical services in addition to insurance against unexpectedly large medical expenses.

U.S. Police: A breeding ground for sadists

What happens when government not only pays people to work as police, but also gives them both authority and discretion to routinely use physical force against others in the course of their work? And what if, further, police are given broad deference – even immunity from serious consequences – for their use of force? What sort of people might that job attract?

United States law enforcement institutions cannot offset the predictable results of handing people a badge, weapons, and license to use whatever force they consider necessary to protect themselves and enforce the law. Rudolf Diels, first head of the Gestapo (German Secret Police, formed in 1933), candidly observed the results in his police institution:

The infliction of physical punishment is not every man’s job, and naturally we were only too glad to recruit men who were prepared to show no squeamishness at their task. Unfortunately, we knew nothing about the Freudian side of the business, and it was only after a number of instances of unnecessary flogging and meaningless cruelty that I tumbled to the fact that my organization had been attracting all the sadists in Germany and Austria without my knowledge for some time past. It had also been attracting unconscious sadists, i.e., men who did not know themselves that they had sadist leanings until they took part in a flogging. And finally it had actually been creating sadists. For it seems that corporal chastisement ultimately arouses sadistic leanings in apparently normal men and women.

Rudolf Diels

Campaign Zero: The Police Abolition Movement

Campaign Zero provides excellent data as well as concrete proposals to end police violence in the United States.

Highlights from this essay by one of the Campaign Zero organizers:

  • U.S. police kill roughly 1,100 people per year but face few consequences.
  • One in every three people killed by a stranger is killed by a police officer.
  • As long as there are police, we must reduce their power to inflict harm.
  • There are explicit laws, policies, and practices that protect police officers from accountability. Our system of policing will continue to produce dead and beaten bodies until the entire system is replaced.
  • Proposals aimed at reducing police violence are met with denouncements from police unions and police chiefs. They simply do not want to accept a mandate from the people to implement rules that prevent violence and deaths of their fellow citizens
  • Once we identify the range of responsibilities assigned to the police that they are clearly ill-equipped to handle, we will realize that there is little need left for them.

How to Interact with Police

The Rule:

Don’t talk to police.  Don’t answer their questions.

If you’re in the United States this is serious advice. But following it is not as easy as it may sound. There are a few essential phrases you need to know to preserve your freedom when confronted by police. I don’t talk to police! is only the first.

Recently I talked to a friend (who I’ll call Jane) who had a brush with a police officer. A stranger called 911 after seeing Jane’s young child alone in her car. Jane had left the child there to briefly push her empty shopping cart back to the store. The cop pulled up just as she was returning to her car. He stepped out and began to question Jane about the situation with her child.

This is exactly the sort of situation for which The Rule was written. The cop is not there to help. He is there to determine whether it appears that a crime is being or has been committed. The best outcome for Jane is that the cop concludes nothing is wrong. A very realistic outcome for Jane is that in the course of talking she gives the cop a pretext to charge her with a crime.

Jane knew The Rule well. She promptly told the cop, “I don’t talk to police officers.” But she wasn’t completely prepared to maintain her stance. The cop was persistent.

The cop kept using all these interrogation tactics on me, like coming at questions from different directions to try to find a way to start me talking. He made me feel like I was doing something wrong. It was hard enough to not say things to defend myself, and instead to keep saying “I don’t talk to police officers!” But I kept thinking, “He’s trying to trap you.”

Which is exactly right. The only thing the cop could accomplish by continuing to question Jane is to turn her benign situation into a bad one. And cops have years of training and experience manipulating people. They can make it excruciatingly awkward for a normal person to continue to say, “I’m not answering any questions.”

Frankly, I was impressed that a courteous person like Jane was able to stand her ground. I wanted to give Jane the other tools every citizen should have ready to withstand a police encounter:

First: turn on any video recorder you can. (Recording police is always legal in the United States, but police don’t always respect the rights of citizens – particularly the right to record officers acting in their official capacity – so it may be best to do so discretely.)

Now, in addition to your answer to any question from police (“I’m not answering any questions”), there are two questions you need to be prepared to ask to the police until you get an answer:

“Are you detaining me?” If not, “Am I free to go?”

Jane asked me to clarify this.

“So I just interrupt him? Like when would I ask those things?” The answer: Continuously, unless he’s answering one of those two questions very clearly.

OK, so like, “I’m not answering questions. Am I free to go?”

What if he says I’m not free to go, or just keeps asking me questions?

You already said you’re not answering his questions. So you keep on asking your questions. Over and over.

If he says you’re being detained, (i.e., you are not free to go), you ask, “Why?”  And after that you return to your script: respond to his questions by saying, “I am not answering any questions,” and continue to ask, “Am I free to go now?”

If he says anything other than “No” then you leave promptly. And if he subsequently obstructs or threatens you in any way you call 911.

As Jane learned, this can take a lot of resolve. Fortunately there are a lot of examples of how to do this, and how it works, online. Search YouTube for “flex rights.”

Good police know and accept that citizens have these rights, and they don’t take it personally. But there are cops who will try to confuse or intimidate you. The worst will disregard your rights and the law and may decide to arrest you. If you are told you are under arrest then you need to use the last of the four phrases you should ever say to police acting in their official capacity: “I want a lawyer.”