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Tuesday, November 26, 2002

The Supreme Court is about to hear the latest attempt by police, prosecutors, and conservative activists to overturn the famous 1966 decision in Miranda v. Arizona. You might remember that a couple of years ago, in a case called Dickerson v. United States, an activist panel of judges on the United States Court of Appeals for the Fourth Circuit chose to ignore Miranda and declare that a statute that Congress passed in 1968 and which had almost never been invoked in subsequent cases had actually overturned Miranda and we just didn't know it for 30 years. The Supreme Court emphatically reversed the Fourth Circuit, in a 7-2 decision, with Chief Justice Rehnquist, no fan of Miranda in the past, writing the majority opinion.

Now comes a second attempt, this time taking a slightly different tack. Under 42 U.S.C. Section 1983, a statute passed after the Civil War, a citizen can sue state and local officials for violating his or her constitutional rights. The Supreme Court added an additional requirement in the 1960's and 1970's that the right be "clearly established"; the idea being that officials should not be punished for not anticipating the development of newly-found constitutional rights that did not yet exist at the time that they engaged in the conduct complained of in the suit.

Miranda contains two basic requirements, which have both been clearly established since the original decision in 1966: (1) that police give the now famous warnings before commencing a custodial interrogation of a suspect, and (2) that, if the suspect invokes either the right to remain silent or the right to counsel, the interrogation must cease. The plaintiff in Chavez v. Martinez was interrogated about his alleged involvement in an officer shooting while he was in his hospital bed and in terrible pain due to a fresh gunshot wound, and despite the fact that he had repeatedly asked that the interrogation stop because he was in so much pain. So, the case for liability ought to be a slam dunk. Indeed, the Ninth Circuit Court of Appeals followed its earlier, established precedents in finding the officer liable.

The officer has taken the case to the Supreme Court, supported by conservative groups and prosecutors, arguing that Miranda actually just stands for the proposition that when a criminal suspect is tried, no statement taken without warnings or after an invocation of the Miranda rights by the suspect may be used. In other words, officers, have the right to flout Miranda's requirements, as long as they are willing to give up the right to use the statement at trial.

This is, to put it bluntly, a highly revisionist view of Miranda. In fact, the Miranda opinion derived its novel legal rule (before then, courts would look at all the circumstances to determine if a statement given in custody was voluntary) from dissatisfaction with oppressive police interrogation tactics, which are described in great detail in the Miranda opinion. The Court's concern was not that these statements were used at trial; rather, the Court's concern was that police were using oppressive tactics such as incommunicado interrogations and psychological torture to obtain confessions of questionable reliability. If the officer's argument is adopted in the Chavez case, not even an innocent person subjected to these tactics would be able to sue the officers or the police department for using them. (The officer's lawyers do concede that conduct that is so oppressive as to "shock the conscience", such as actual physical torture, might be prohibited. But in practice that test does not provide much of a deterrent to police departments, because it is very hard to meet and is reserved for the most heinous of conduct.)

Further, in addition to being historically inaccurate, the practical effect of a "Miranda only prohibits the use of statements at trial" rule would simply be widespread disobedience of Miranda. An established exception allows un-Mirandized statements to be used by prosecutors to "impeach" suspects, i.e., to expose that the criminal defendant is lying in his or her testimony. The idea behind this is that the purpose of a trial is to seek the truth, and the Miranda right should not function as a sword that allows a defendant to perjure him- or herself without consequence. However, the combination of this with a no-civil-liability rule is predictable. A few years ago, it was discovered that numerous police departments in California were intentionally questioning "outside Miranda", as they put it, to obtain impeachment evidence (or to keep the defendant from testifying in his or her own defense based on the threat that the statements given to interrogators could be used against the defendant). These officers would even sometimes openly say to the suspects something to the effect of "you've just invoked your Miranda rights, so we can't use your statement against you, so tell us what really happened". This was one of the cases, prior to Chavez v. Martinez, in which the Ninth Circuit developed its rule permitting civil liability for Miranda violations. If the Supreme Court rules in the officer's favor, no police department will follow Miranda; there is no downside to violating it (because of no civil liability), and a tremendous upside in obtaining statements that can be used against the suspect if he or she testifies in his or her own defense.

The officer's lawyers, along with some important scholars such as Eugene Volokh, argue that civil liability would interfere with the war on terrorism, because officers may want to question outside Miranda to prevent future terrorist acts rather than to obtain evidence against the suspect. Here's the link to Volokh's argument:

There are at least three responses to this. First, and most importantly, in 1984 the US Supreme Court recognized in New York v. Quarles that there was a "public safety" exception to Miranda that allows police to question suspects without warnings when there is an imminent threat to public safety (in that case, it was to find out where a weapon that remained at large was). Any questioning of a terror suspect to determine whether and what imminent threats to public safety exists would not be unconstitutional under Quarles. Second, the war on terrorism is mostly a federal concern, and civil liability for federal officers is controlled by the Bivens doctrine, not 42 U.S.C. Section 1983. The importance of this is that Bivens recognizes that there can be "special factors" in particular cases that "counsel hesitation" and can permit the denial of liability. Certainly the desire to prevent imminent terror attacks would be such a "special factor". Third, even if a terror suspect's claim for damages for a Miranda violation went to a jury, it isn't likely that a jury would award much money, or indeed any money, to such a plaintiff. The connection between the Chavez case and terrorism is ephemeral, and serves as a nice reminder that there are some people out there who would like to wrap their pet projects (like bringing back the "good old days" of overly aggressive police interrogation) in the war on terror.

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