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Can police retaliate against a citizen for refusing to answer questions?

So asks Orin Kerr in a post at the Volokh Conspiracy about a decision from the Fifth Circuit, Alexander v. City of Round Rock, 2107 WL 1393702 (April 18, 2017), involving a § 1983 lawsuit against police alleging violations of the First, Fourth, Fifth, and Fourteenth Amendments.

Alexander was pulled over and declined to answer police questions. Alexander claims the police retaliated against his refusal to answer questions by ordering him out of his car and “pinn[ing] him face down onto the ground,” with one officer “press[ing] a boot or knee on the back of Alexander’s neck as his face was mashed into the concrete.” The police then handcuffed Alexander and asked, “Are you ready to talk to me now?” Alexander responded with an expletive, which led the police to shackle his legs and arrest him, ostensibly for obstructing an officer.

Here is Kerr’s introduction:

As I read the 5th Circuit’s decision, the court rules that (a) retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment, (b) retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment, and (c) such retaliation doesn’t violate the Fifth Amendment.

The court’s Fifth Amendment ruling strikes me as missing some complications, and I thought I would blog about why I think it’s a tricky issue.

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