69. Am. U. L. Rev. 915 (2020).

* Professor of Law, University of Denver, Sturm College of Law. J.D., Ph.D., University of California, Berkeley; B.A., Amherst College. I would like to thank the members of the University of Denver Faculty who gave feedback on an early draft at a Works in Progress presentation as well as the participants in the 2019 Southwest Criminal Law Conference at the University of Nevada, Las Vegas.

** J.D., University of Denver, Sturm College of Law; B.A., University of Texas at Austin.

This Article answers a question that has confounded the lower federal courts: whether a suspect briefly detained under the doctrine of Terry v. Ohio is obligated to answer police questions posed to her. Although the Supreme Court has never explicitly found a right to remain silent during a Terry stop, it has, through dicta, concurrences, and elsewhere, consistently assumed the existence of such a right. Nonetheless, more than fifty years after Terry was decided, lower federal courts consistently deny recovery to those who allege they were wrongfully arrested for refusing to answer police questions. Interestingly, these courts rarely reject outright the existence of a right to silence in the Terry context. Rather, they simply find that because such a right is not clearly established, officers who arrest suspects for refusing to answer their questions are entitled to qualified immunity.

The unwillingness of courts to recognize a right to silence in the Terry context is inconsistent not just with the Court’s repeated pronouncements on the subject but also with the Court’s broader conception of the right to remain silent. Those who have not been seized by law enforcement officers have an absolute right to ignore police questions and go about their business; this is in many ways the definition of what it means to be at liberty. And when one is under arrest, the right to silence is so important that a confession is irrebuttably presumed to be coerced under Miranda v. Arizona unless the defendant is apprised of that right and has made a knowing, voluntary, and intelligent waiver of it. It makes no sense that only those in between those two categories—those who have been briefly detained but not yet arrested—have no right to remain silent in the face of police questioning. And yet we can find no lower court that has acknowledged the existence of a broad right to silence in the Terry context.

We suggest three solutions to this problem. First, lower federal courts should simply acknowledge that the right exists and is clearly established by Supreme Court precedent. Having done so, they should award money damages against officers who arrest suspects simply for refusing to answer questions put to them during a Terry stop. Second, if courts are unwilling to find this clearly established right in the Supreme Court’s jurisprudence, then they should themselves establish that such a right exists. The newly announced right will be clearly established for later cases and will allow recovery for future litigants, if not for the plaintiff in the case establishing the rule. Finally, we encourage state courts and legislatures to determine, as a matter of state law, that their statutes permitting arrest for obstruction of justice or interfering with a police officer are not violated by the mere refusal to answer police questioning.