What are the actions a resident should take against police remaining, with no warrant, on residential property after being repeatedly asked to leave?

Police shows up on a residence's front door, starts encounter with resident. Resident decides to end consensual encounter, and asks officers to leave. Officer decline to leave and put foot on the door frame to stop resident from closing door. Resident insists officer is not welcome and demands them to leave. Officers do not leave. Closing the door or forcing the foot to move probably leads to the famous "assault on an officer" charge. Cops claim they have the right to remain on the property without specifying why. What should a reasonable person do in this situation? Call 911 on the cops? Leave the front door open, withdraw deeper into the residence? Keep asking them to leave and state they are not welcome?

It needs to be said. You cannot stop a cop from doing what the cop wants to do. Any attempt to do so will likely get you cuffed, or killed. Once they've decided they will enter your home, any attempt to prevent them, can only escalate the threat level. Once they've issued you with a demand, they will use whatever level of force is required to ensure you comply.

@jrdevdba in the US of A, body camera footage often disappears or is mysteriously cut off whenever is advantageous to the police. One may claim spoilation of evidence because of the missing footage, but lawsuits are expensive.

@Mindwin And I've seen a lot of videos of cops getting busted by other cops on camera. One instance doesn't mean "often".

7 Answers 7

Yes, your best bet for immediate relief is to call 911 and ask for a supervisor. Generally speaking the police are not legally obliged to explain themselves to you on the spot. They are obliged to explain themselves to the courts and their supervisors.

You Can Beat the Rap, But You Can’t Beat the Ride

The best you can do is to tell the officers you do not consent to a search or their presence on your property. You must comply with their direct orders. Documenting your lack of consent to the search will be important (record the audio or video on a device that will sync to cloud storage). You cannot legally resist the officers in any way.

So as the expression goes, you might end up going for a ride to jail but you can win your case in court.

+1, but I'm going to say that "You cannot legally resist the officers in any way." is not correct. You can legally resist the police when they have absolutely no reason for their actions, but that will only be determined after the fact, so that you will end up cuffed and likely in a cell, explaining the situation to a judge, as you rightfully explain. There's plenty of video showing police arresting people for "resisting arrest" when there originally wasn't an arrest to resist. (cont)

And legally, you don't have to comply with with an officer's orders when they have no legal authority to issue them. But, unfortunately, police all too often don't understand that and it ends in the same situation of you being cuffed and taking a ride. "You can beat the rap" means that yes, you can legally resist officers and not comply with illegal orders from an officer. It's that police in the US are all too often trained that any and all encounters with the public that aren't being 100% cooperative, or more, will end up with an arrest, or worse.

I have this vague memory that at least in some states, "resisting arrest" is legal grounds for an arrest, regardless of whether or not the arrest you were resisting was itself lawful. In other words, a police officer tries to arrest you without legal grounds, you resist the arrest because, well, there is no legal ground for the arrest, but now you have given the officer legal grounds to arrest you for resisting arrest, and that arrest now is indeed lawful. Whether you are actually tried / convicted for it seems to depend mostly on the color of your skin (as unfortunately so many things do).

@computercarguy Perhaps it would have been better to say "despite an order being unlawful, there is no universal force that will protect you from police violence" much like a pedestrian may have right of way in a cross-walk, cars will not magically stop. Which is why I wanted to emphasize that telling an office what they are doing is illegal/resisting officers is a fool's errand, just take them to court.

@JörgWMittag, I've seen video of a police officer trying to arrest someone for "resisting arrest" when the officer had clearly said before that they were not under arrest. It's been a couple weeks since I've seen that video, so I doubt I can find it again. There are specific reasons for that charge, and it depends on jurisdiction, but the police can't use it as a blanket reason for arresting anyone they want while lacking any other charge. findlaw.com/criminal/criminal-charges/resisting-arrest.html

This answer is based on standard ACLU advice. The ACLU is the American Civil Liberties Union, the pre-eminent civil rights organization in the USA. Their lawyers understand statute and case law extremely well.

The concept of a "consensual encounter" with the police seems to confuse a lot of people. That might exist if you're on a date with a cop, or standing in line at a hot dog stand. But if you are interacting with them in the course of their duties, consent is not yours to withdraw. I don't like that either, but you can't fix it with a downvote button, you need to talk to your political representataives.

It may feel like a consensual encounter, but that feeling comes from social cues. The police are trained to create those social cues to manipulate you. If this surprises you, look into behavioral science - the game of manipulation is well-studied.

You are either detained, arrested, or free to go.

And the cop decides that based on training and law.

Resident decides to end consensual encounter

That is not a thing. You don't get to decide when a police encounter ends. Here is the proper way to do that:

You ask "Am I free to go?"

If it's yes, shut up and skeedaddle. Otherwise

"Why are you detaining me?"

This forces the wheels of their mind to think about a reason, and it puts them on notice that a) you know your rights, b) you are likely to raise a ruckus later about the encounter, so they will probably have to justify that reason later to supervisors, when you start making noise.

With any luck they'll say "oh, I'm not. yeah, you're free to go".

Now if they have a reason, well, that's that. You have to sleep in that bed.

It's better you sleep in that bed outside the house.

Separate "you" from "your house".

The problem is, you're trying to use your house as a shield to make the cop go away. That doesn't work and causes a bad thing.

If you are not free to go, and clearly you are not, then withdrawing into the house is an invitation for the police to chase you. They will simply follow you into the house, "in order to continue detaining you", and you will still be having the conversation in whatever room you have led them to. This functionally destroys your ability to consent to a search. They now have a right to gaze at anything in plain view anywhere they can claim they have a reason to be, and they will stretch that like a rubberband.

You need to do something totally different. You need to flip your door latch so it auto-locks behind you, and then you need to step OUT of your house and pull the door shut behind you.

There you are, on your porch or sidewalk, right in front of them, outside your house. You are detained; there are no complications for them; they already have you. Thus they have no valid reason to enter the home.

DO NOT withdraw from the door to get keys, coat, whatever, because of the above! Obviously, don't bring your phone, unless you really, really understand your phone rights and your phone's abilities. and don't assume you do.

You have your conversation outside the house, you use the right words to defend your rights, and they leave (with or without you in custody). The home is not entered.

They are likely to play head games to get you to go back inside to get something, like ask to see your phone. That is a trick. You simply say "I do not consent to a search, I'm not going back inside. Am I free to go?"

Now when they asked you why you came outside, you say "so we could have a conversation". You might have said "because I need to stretch my legs" or "I want to walk down to the liquor store" or what have you. If you did, your next action should conform to that. Certainly don't think about re-entering the house until they are long gone.

If you have to go to a neighbor to have them call a locksmith, then that's what that is.

So the moral of the story is: don't answer your door in your underwear.

Start video and audio recording (check if that's legal in your state, but AFAIK it is in most) and clearly repeat your statements. Inform them that you are recording the encounter and that you believe your rights are being violated and you will enforce your rights in a court of law if they do not leave your property immediately. It might also be helpful to state (again) on camera that you don't consent to any searches, don't answer questions, etc.

Then do exactly that. Whatever they do next, keep recording. If you have a family member nearby, ask them to record as well, and comment on anything that is happening (not everything may be caught by the camera).

If you have another phone (or someone else can continue recording), yes, do call 911. Calmly state what is happening, that you feel threatened, that you believe your rights are being violated and that you are requesting police to be dispatched to your location to diffuse the situation, or that these cops are recalled from your property.

You want to set up the situation so that when this eventually goes to court because it escalated, there can be no doubt about what you asked them to do, that you insisted on your rights, that you tried to resolve the situation calmly and peacefully, that you were threatened (because they will claim the opposite, that you did something threatening), etc.

You are right that you don't want to use any force, even if you think it were within your rights, but in the immediate situation that's likely to be used against you.

It's worth mentioning that it's effectively illegal to record police in Arizona, or will be this September

@timeskull One of the exceptions in the AZ law is that the person being questioned/arrested by the police have a right to record the encounter. I also question the assertion that having to be 8' away from the officer makes recording effectively illegal.

Ok I looked for such an exception in the news stories but didn't see it. I say effectively because officers can just move toward anyone recording 8 feet away to make it illegal

FYI I am not sure the AZ recording law would apply if as OP stated, the police were at his door and he was in his home: "Exceptions were made for people at the center of an interaction with police, anyone standing in an enclosed structure on private property where police activity was occurring " usatoday.com/story/news/nation/2022/07/07/…

Unless you think you're able to compel them to follow your rules, you're really best off following theirs.

I believe in the policy of, "don't make a rule you can't enforce".

Ultimately they're the ones with the guns, so if they really want to do something, there's nothing much you can do to prevent them.

Be respectful, be compliant. Not for their sake. For yours.

The Fourth Amendment of the Constitution protects American citizens from unreasonable search and seizure. It guarantees the right for people to feel secure in their “persons, houses, papers, and effects.” In other words, under the terms of the Fourth Amendment, an officer must obtain written permission from a court to legally conduct a search of another person’s home or property

There are certain exceptions.

• The “plain view doctrine.” This applies when police officers can see evidence within their sightline.
• Searches in connection with arrests. Police officers do not require warrants to perform searches connected to arrests. For example, police officers have a right to protect themselves by searching your person for weapons. Additionally, they can search your car or your home for additional evidence connected to the crime, if you’re arrested.
• Extenuating circumstances. Lastly, a police officer is not required to obtain a warrant if they believe waiting on the courts would lead to the destruction of evidence or endanger public safety.

A warrant can only be obtained after a sworn affidavit by the police officer is presented to a Judge. If there is a legal warrant you can still contest the fact of probable cause. Warrants can be over-thrown.

If you believe that there has been a civil rights violation then you are free to bring forth a Civil action for deprivation of rights suit against the policeperson and his department. Under this law, you could even personally sue the officer.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the the United States or another person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress, except that in any action brought against a judicial officer for an act or omission has taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Unfortunately, all the remedies at your disposal can only be used after the fact. There really is not anything you can do while you are interacting with a police person but conform to their will. You can of course record all your dealing with the police.

American police have no problem killing their own. If you don't want to be another statistic then doing what they want is unfortunately the only way you can keep John Wayne and his badge-wielding cowboys from not killing you.