Legal Question: If there’s something strange and you get arrested, who ya gonna call? YOUR LAWYER

This week’s question was sparked by watching the new movie Ghostbusters: Afterlife. No spoilers, but in the movie, a character is arrested and demands to make their one phone call. As I was thoroughly enjoying that movie (seriously - go see it! I laughed. I cried. I cried talking about it later. I loved it!), I wondered to myself:

Do you have a constitutionally protected right to a phone call after you have been arrested?

It’s one of our most propagated tropes in movies and TV shows: perps are always yelling, “I want my phone call!” But do they get one?

The answer is, as always, it depends. In this case, it depends on what jurisdiction you’ve been arrested in. In the new Ghostbusters flick, they’re in Oklahoma. This differs from Texas and varies widely across other states.

NO CONSTITUTIONAL RIGHT TO A PHONE CALL?

A couple of constitutional rights are implicated when considering whether an arrestee is entitled to a phone call. You have the right to due process under the Fifth Amendment and the right to counsel under the Sixth. However, the interpretation of those rights is not well-settled.

There’s a case out of the Fifth Circuit regarding two guys arrested at the onset of Hurricane Katrina in New Orleans. They were booked into jail, and because the phone lines were overwhelmed in anticipation of the hurricane, the men were not able to make phone calls. They argued, among other things, that the sheriff should have made their confiscated cell phones available to them since the phone lines were down.

The Fifth Circuit disagreed, saying, “There is no particularized, clearly established law which would have instructed [the Sheriff] that, under the Sixth Amendment, he had to allow pre-trial detainees to use their cell phones when land lines were disrupted.” Waganfeald v. Gusman, 674 F.3d 475, 485 (5th Cir. 2012).

Yikes.

The men were then left in the jail as it filled with water once the levees broke. The food became spoiled, and the toilets overflowed. They were later transferred to Angola aka "The Alcatraz of the South" all because they had allegedly been drunk in the French Quarter (who hasn’t!?) They had been arrested for public intoxication after one fell off a curb (again, WHO HASN’T?!). He said it was due to a bad knee (hard relate), and the other defendant said he was just trying to help his friend stand back up (true bro move right there).

A likely story, sure, but in any case, they shouldn't have ended up in a maximum security prison farm and likely wouldn’t have if they had just been able to call someone to bail them out.

STATE STATUTES

In the absence of a constitutional right, each state is able to pass its own laws that determine access to a phone call within a certain amount of time following arrest. In July 2021, the Chicago Appleseed Center for Fair Courts released a 50-state analysis on the various post-arrest phone call rights across the country. The analysis “found that about 46% of states provide ‘moderate protections’ for their residents, 22% of states have ‘no clear protections,’ and only 32% — 16 states — provide ‘strong protections’ for people’s right to communicate.”

Illinois just passed the SAFE-T Act which updates the criminal code to require at least THREE phone calls “upon being taken into police custody, but no later than one-hour after arrival at the first place of custody and before any questioning by law enforcement occurs.”

This is particularly important in Illinois as a rash of arrests and detentions at a shadowy “black site” in Chicago’s Homan Square saw arrestees facing secret arrests, beatings that resulted in head wounds, and multi-hour to multi-day detentions without counsel, including of arrestees as young as 15 years old.

SO DO I GET MY PHONE CALL?

Depends on where you are. In Texas, you don't. 

pretends to be shocked in Texas

In one case from 2011, the U.S. District Court for the Northern District of Texas found that a defendant did not have “a protected liberty in placing a phone call upon booking as there is no state statute affording this right to pre-trial detainees in the state of Texas.” Basically, no law on the books = you're out of luck.

Chicago Appleseed reported that two bills (SB 303 and HB 2580) had been proposed in the Texas legislature that would allow arrestees to make a local phone call but...

Are you ready for this??

Neither bill passed. Because of course they didn’t.

I can't even pretend to be shocked about this.

As for Oklahoma, our Ghostbusters character would have a little more protection than Texas. The ACLU advises that arrestees in Oklahoma are entitled to a phone call. The case law backing that up states that a defendant gets "a reasonable time to send for counsel." So our character was well within their rights to demand a phone call.

[I am intentionally not gendering the character because I do not want to spoil the movie. It is so good. Go see it before someone spoils it for you!]

SO WHAT DO I DO IF I GET ARRESTED?!

You can check your state's laws using this informative table from Chicago Appleseed. I personally think everyone arrested should be entitled to a phone call, no matter what state they're arrested in. We should all be afforded a meaningful opportunity to converse with counsel, and at the very least let our family or friends know we have been taken in so we don’t end up beaten in a secret interrogation site or shipped all over a state during a deadly hurricane and subjected to inhumane conditions all because we tripped and fell in the French Quarter.

If your state's law on the subject sucks or is just plain missing, let your state representative or senator know you'd like to see that change.

Just remember, if you do get arrested and you do get your phone call, the privacy of that call depends on who is on the receiving end. If you call your lawyer, the cops can't eavesdrop and can't record you. But if you call a family member or a Ghostbuster, they can (and likely WILL) listen and use what you say against you. Keep that in mind when you’re deciding who ya gonna call.

Thanks to Ghostbusters: Afterlife for sparking this question and for existing!

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.