Yes, I was arrested last week in Coral Gables. A few hours later I was “unarrested.” The video of my arrest is near the bottom of this article, but first there’s a back story. Scroll way down if you just want to see the arrest.
As many of our readers know, I am a criminal defense (and personal injury) lawyer. I’m also a civil rights activist. Earlier this year I received national attention for my approach to handling checkpoints and traffic stops.
I had published a book in 2013 called Fair DUI.
The book has sold fairly well on Amazon and has excellent reviews.
After writing the book people asked a lot of questions about how to handle encounters with police in traffic stops. One of the big questions was how to remain silent. It sounds simple, but it’s not so easy to do. In response to that I came up with the Fair DUI Flyer.
Some of my activist friends started using them in checkpoints. I did one myself in Miami last year and it went well. This video has been viewed over 100,000 times.
The story got bigger when my activist friends used it in a checkpoint on New Year’s Eve west of Gainesville. This video has now been viewed over 3.2 million times on YouTube alone.
I even became the #1 trending story on Facebook:
In the heat of the moment we received some threats of arrest by local sheriffs but their comments were vague and often just plain stupid. Some said drivers have to talk to police, rejecting the right to remain silent. After the publicity died down we learned that police departments and prosecutors were discussing how to respond, and this led to my arrest in Coral Gables.
One key feature of my approach is that you do not roll down your window. Florida law requires you to “exhibit” (or show) your license to police. It does not require you to hand it over. I recommend people keep the window closed and press the license up against the window. Some prosecutors and police legal advisors decided to fudge that law (§322.15 of the Florida Statutes) and claim that you are required to hand it over. The Coral Gables legal advisor, attorney Israel Reyes, went further and recommended that anyone who refuses to physically hand over their license be arrested for a misdemeanor – resisting without violence. The City Attorney adopted this recommendation and it became formal policy. That document is below.
Mr. Reyes and his friends missed a key point from law school. We are trained to read the whole statute. Subsection 4 of 322.15 says that a violation of it “is a noncriminal traffic infraction, punishable as a nonmoving violation.” You can’t arrest someone for that. You can’t charge someone for a misdemeanor (a crime) when the legislature defines it as noncriminal.
I talked about this in a video I made about 322.15:
So, as an activist, when I heard that Coral Gables was doing a checkpoint, I had to go and test them to see if the police officers would follow this unlawful order from their bosses. You can see my arrest in the video below:
While I’d like to think of myself as the hero of this story, the real hero is Sergeant Alejandro Escobar. He followed orders when he arrested me. About three hours later he “unarrested” me and gave me a ticket:
In a good story the hero learns from experience and grows. I don’t know what happened for sure but I think Sgt. Escobar figured out something was going on and made an effort to understand what I was doing and why. In the end he went against his department’s policy, against his orders, and only issued me a ticket.
Coming soon I will be suing Coral Gables in federal court over this incident. This is not about money. While there will be monetary claims they are small. No one was shot. I did suffer nerve damage to my thumb from the handcuffs but it is minor and has nearly healed already. The goal is to get a federal judge to make sure that police follow the law, including 322.15 as well as Supreme Court cases on checkpoints.
Those who are considering using the Fair DUI Flyer should be aware that I went further in this incident than I recommend for others. Most people should obey orders from police even if they are unlawful orders.