Arrested and Detained By Police: Your Rights

Amber Swink was placed in an isolation cell, strapped to a seven-point harness chair and pepper-sprayed twice by police while being detained for drunk and disorderly conduct. The entire incident was caught on video, evidence which the police department tried to destroy, or claim as missing. Swink was indeed being loud, obnoxious and borderline hysterical. But once restrained and behind bars, there’s no harm she could have brought to anyone. Using pepper spray on a person in this situation is indeed illegal.

Pepper spray not only effects eyesight, but it can cause the throat to close when inhaled, which makes it a deadly weapon if someone has asthma, emphysema or other breathing medical issues. If a person is a threat to others in public then yes pepper spray and/or a taser can be used if appropriate, but lately it appears police also use it if they find the other person is simply being annoying.

What Are Your Rights When Detained By Police?

We all know the Eighth Amendment – cruel and unusual punishment – but few know the specific parameters and requirements necessary to not violate this law. After all, a 16-word amendment in the Bill of Rights comes with a lot of ambiguity, so lawmakers had to define what exactly constitutes “cruel and unusual.” This involves everything from living conditions, proper treatment (physical and psychological) as well as harassment. But there are many more areas for which regulations have been instituted over the years. These apply to prisoners (those convicted) and detainees (those awaiting trial).

  • Humane housing – Bedbugs, leaky pipes, and non-working or no access to toilets are things that just don’t fly anymore. Prisons don’t have to be luxury suites at the Ritz-Carlton, but they still have to provide basic shelter that won’t jeopardize their health.
  • Humane treatment – To be sure, neglect counts as cruel and unusual punishment. Officers do not have to physically do anything to the prisoner in order to violate their rights. We’ve seen too many stories of detainees “forgotten” about and subsequently dying because they had no food or water. Freedom from undue assault and sexual harassment as well as the right to proper medical care all fall under this umbrella as well.
  • Freedom of religion – The American Civil Liberties Union (ACLU) has taken special note of this in recent years. This doesn’t just mean that a prisoner can read a book of faith while in their cell; this covers diet restrictions, right to attend religious services within the prison and observing any holy days, such as the Sabbath.
  • Pregnancy – If a prisoner is pregnant, they are guaranteed the same autonomy of choice that is afforded to all citizens by Roe v. Wade. If they are told what to do in this regard, denied prenatal care or forced to pay before receiving such care, it’s a violation of their rights.
  • Disability – The Americans with Disabilities Act is a right of prisoners and detainees as well, not just citizens, particularly as it relates to accommodations.

If a prisoner wants to show that their Eighth Amendment rights were violated, they must show that three things occurred: 1) the conditions of the confinement are objectively serious enough to justify Eight Amendment 8 scrutiny; 2) the responsible prison official had a “sufficiently culpable state of mind;” and 3) prison officials failed to act. This is not an “or” situation; all three of these things must have happened in order prove violation of Eighth Amendment rights.

These types of rights really started to be expanded upon in the 1960s. Prior to that point, it was understood that prisoners were considered “slaves of the state,” which was a provision specifically noted in the Thirteenth Amendment. However, the aforementioned laws that have been instituted in the last 50 years clearly negate this notion. Prisoners have also been routinely denied any protections under the Fourth Amendment, mainly due to cells providing “no expectation of privacy.”

Restraining Swink was the proper course of action; she may not have been a danger to others, but after punching a window, certainly may have been a danger to herself. The guards broke the law for the treatment of her otherwise, plain and simple. No matter the crime someone has committed, they still have a legal right to be treated as a human being. If the guards and officers don’t do that, then what makes them better than the criminal?

*Featured image from Bob Jagendorf, via Wiki Commons

B. Clausen

A graduate of the University of Kansas, Brian Clausen is the U.S. news reporter for Dopplr. Before joining the team, he created digital content for large companies.

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