“Politicians are not born; they are excreted.” ― Marcus Tullius Cicero
In a new case, Alexander v. City of Round Rock, the U.S. Court of Appeals for the 5th Circuit considers the following question: If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?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....More broadly speaking, the facts of Alexander bring up some real tension in cases like Miranda, Salinas v. Texas, and United States v. Okatan about what the “right to remain silent” actually means. Miranda speaks broadly of the right, suggesting it is part of the Fifth Amendment and that you never have to answer police questions. Salinas says you have the right to remain silent but you have to invoke it first. Okatan says that if you did invoke it, the government can’t comment at trial on the fact that you refused to answer questions.Alexander seems to have invoked his right properly, and at least according to the complaint he was punished for doing so. It may be that the Fifth Amendment has nothing to say with that: As long as Alexander wasn’t prosecuted, maybe the government can retaliate against him for not speaking so long as it does so within Fourth Amendment bounds in terms of detaining him and using force. Maybe the idea that you have a “right to remain silent” is itself inaccurate, as you have much more limited rights than such a broad phrase would suggest. But my sense is that there are difficult issues lurking in the court’s Fifth Amendment ruling that didn’t come out in the short passage in the opinion.I’m not sure any of my uncertainty changes the ultimate result in this case. No matter how Alexander’s Fifth Amendment claim is characterized, I gather that retaliation wouldn’t violate clearly established Fifth Amendment law under prevailing qualified-immunity standards. But it struck me as an important set of issues nonetheless.