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[P]
Bush administration pushes for repeal of Miranda law

By Arthur Treacher in News
Mon Nov 25, 2002 at 01:54:09 AM EST
Tags: Politics (all tags)
Politics

Bush administration officials U.S. Solicitor General Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, in a brief for an upcoming Supreme Court of the United States (SCOTUS) case say that police have the right to force people held in custody to talk, so long as their incriminating statements are not used to prosecute them.


The case, in which oral arguments will be heard by SCOTUS on Dec. 4, involves a farm worker, Oliverio Martinez,  in Oxnard, California five years ago.  Martinez was riding his bicycle at dusk across a vacant lot near some houses.  Two police officers had stopped nearby to question another man they suspected, wrongly, of selling drugs. When they heard the bicycle they told the rider, Oliverio Martinez, to stop.  Martinez had a long knife that he used to cut strawberries in a leather sheath on a waist band. When one of the officer patted him down and grabbed for the knife, Martinez tried to run. The officer tackled him and tried to handcuff him. As they struggled on the ground, the officer called out that the man had a knife. The other officer then fired five shots; one bullet entering Martinez near his left eye and exiting behind his right eye.  Another bullet hit his spine and three more bullets entered his legs.

When patrol supervisor Sgt. Ben Chavez arrived, the handcuffed farm worker lay bleeding on the ground. Once Martinez was loaded into an ambulance, Sgt. Chavez also entered the ambulance and rode to the hospital with Martinez, and recorded the subsequent interview on a tape recorder.  During the ambulance ride and at the hospital, he repeatedly asked the Martinez to admit he had grabbed the officer's gun and provoked the struggle which resulted in the shooting.

From a Los AngelesTimes article (registration required):

In agony, Martinez is heard screaming in pain and saying he is choking and dying.

"OK. You're dying. But tell me why you were fighting with the police?" Chavez asks.

"Did you want to kill the police or what?" he continues. One officer had said Martinez tried to grab his gun. In the emergency room, Chavez continued to press Martinez to tell him what happened.  

"Why did you run from the police?" Chavez is heard to say over the sounds of nurses and doctors.  

"Did you get his gun? ... Did you to try to shoot the police?"

Martinez in a low voice responds: "I don't know.... I don't know."

Lawyers for Martinez say he panicked when the officer tried to tackle him, but they say he did not grab the officer's gun.

In the emergency room, he is heard asking Chavez several times to leave him alone. "I don't want to say anything anymore."

"No? You don't want to say what happened?" the sergeant continues.

"It's hurting a lot. Please!" Martinez implores, his words trailing off into agonized screams. Undaunted, Chavez resumes. "Well, if you're going to die, tell me what happened."  Silence came only when pain medication took hold, and Martinez faded into unconsciousness.

Martinez survived, although he will not see or walk again. He sued Oxnard police for illegal arrest, the use of excessive force and coercive interrogation in police custody.  Under a post-Civil War law, city and state officials, including police officers, can be sued in federal court if they violate a person's rights under the U.S. Constitution.

Oxnard's position in this case is that the suit should be dismissed because the patrol supervisor was merely trying to learn what had happened.  U.S. District Judge Florence Cooper disagreed and said that the questioning of Martinez in the ambulance and later in the hospital suggested he had sought to obtain an admission from Martinez that would clear the two officers.  A federal judge ordered that case to go forward.  Before the trial Oxnard's (under California law, cities and counties are responsible for paying money verdicts against their officers) lawyers appealed on behalf of Sgt. Chavez saying he had not violated any of Martinez's Constitutional rights.  The appeal was rejected by the U.S. 9th Circuit Court of Appeals, Judge Richard Tallman writing this in his decision:

"Sgt. Chavez doggedly pursued a statement by Martinez despite being asked to leave the emergency room several times.  A reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings and who was receiving medical treatment for excruciating, life-threatening injuries ... would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect's 5th and 14th Amendment right to be free from coercive interrogation."

Oxnard then appealed again, sending the case to SCOTUS.  In their appeal they asked a basic question. Is there a constitutional right to be free of coercive police interrogation?  The answer to that question should be no, they said, citing a 1990 ruling by Chief Justice William H. Rehnquist in which Rehnquist said that the right against self-incrimination in the 5th Amendment was a "trial right." Police cannot violate this right when they force someone to talk, since "a constitutional violation occurs only at trial."

Martinez's lawyer R. Samuel Paz says, "They are taking a radical position. [If they are right, it] would permit officers to engage in the most egregious and abusive conduct in violation of decades of 5th Amendment jurisprudence,"

SCOTUS has agreed to hear Oxnard's appeal posing the broad question of whether the Constitution regulates police questioning that does not lead to an incriminating statement in court.  Most lawyers who have followed the case think the Rehnquist court will overrule the 9th Circuit and side with Oxnard, although some think that the brutality of the shooting may cause some justices to side with Martinez.

What will it mean if the Supreme Court sides with Oxnard in this case?  According to University of Texas law professor Susan Klein, " This will be, in essence, a reversal of Miranda.  Officers will be told Miranda is not a constitutional right. If there is no right, and you are not liable, why should you honor the right to silence?  I think it means you will see more police using threats and violence to get people to talk. Innocent people will be subjected to very unpleasant experiences."

Meanwhile, Martinez lives with his father in a one-room trailer on a farm field in Oxnard. He is in a wheelchair and wears dark glasses to cover his missing eye.  Oxnard's lawyers have refused requests to pay for any therapy for him, saying they are not willing to make a temporary settlement.  The three officers involved in the Martinez shooting remain on the Oxnard police force and suffered no disciplinary action as a result of it.

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o From a Los AngelesTimes article
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Display: Sort:
Bush administration pushes for repeal of Miranda law | 190 comments (178 topical, 12 editorial, 0 hidden)
Good Article (2.88 / 9) (#2)
by El Hober on Sun Nov 24, 2002 at 09:35:09 PM EST

I would vote +1FP right now. That pisses me off.
---
"Painting is an infinitely minute part of my personality."
-Salvadore Dali
oh boy (3.75 / 8) (#5)
by SideShow Ralph Wiggum on Sun Nov 24, 2002 at 09:41:14 PM EST

This is exceedingly sad. As if there haven't been enough violations of rights in the states these days...I certainly hope for everyone who lives a ways south of me that this doesn't go through. And if it does, well, there's lots of space here.

SideShow Ralph Wiggum
This year buy her English Muffins...Whatever you say Mr. Billboard -- H. Simpson

Klein has it wrong. (4.30 / 13) (#7)
by ti dave on Sun Nov 24, 2002 at 09:52:15 PM EST

This will be, in essence, a reversal of Miranda. Officers will be told Miranda is not a constitutional right...

I've trained police officers on the legal aspects of I&I.
In my experience, cops pay close attention to the subject matter, since no one wants to be the target of a lawsuit.

What will happen, is that Officers will be taught that there will be *additional* exceptions to the Miranda rights that suspects have been afforded in the past.

Klein's trying to spin the situation with that "in essence" bit.

"If you dial," Iran said, eyes open and watching, "for greater venom, then I'll dial the same."

Be careful (4.50 / 2) (#8)
by inadeepsleep on Sun Nov 24, 2002 at 10:12:05 PM EST

Don't you see that riot stampeding in your direction?


[ Parent ]
OH MY GOD! (none / 0) (#48)
by Hektor on Mon Nov 25, 2002 at 09:25:27 AM EST

THEY'RE COMMING RIGHT FOR US!

BLAM

[ Parent ]

Wrong Amendment. (none / 0) (#93)
by Hillgiant on Mon Nov 25, 2002 at 05:34:35 PM EST

That would the the 2nd.

-----
"It is impossible to say what I mean." -johnny
[ Parent ]

Since you've trained them.. (none / 0) (#111)
by vile on Tue Nov 26, 2002 at 06:49:20 AM EST

.. could you please explain why officers did this to me? Or, better yet, what allowed them to? It was camp fire related.

~
The money is in the treatment, not the cure.
[ Parent ]
-1, explain Miranda (4.25 / 8) (#11)
by b1t r0t on Sun Nov 24, 2002 at 10:44:12 PM EST

Officers will be told Miranda is not a constitutional right

Show me where it's written in the constitution or its amendments. Miranda is not a "constitutional right", it is merely a CYA* explanation of rights.

*For the TLA challenged, CYA = Cover Your Ass

-- Indymedia: the fanfiction.net of journalism.

its not even that. (4.50 / 8) (#15)
by Work on Sun Nov 24, 2002 at 11:14:17 PM EST

miranda was a fucked up ruling which said the police have to inform you of your rights upon arrest.

What makes this fucked up isnt the idea of the police having to inform you of your legal rights - thats a good thing, from a justice standpoint. It's that the COURT said that police must do this, rather than congress legislating it.

Since then, the court has chipped away at miranda a few times because they feel its an overreach of their own power. For the most part, miranda is already dead and has been for a few years. The fact its not really a law to begin with never helped it out.

[ Parent ]

I don't think so (5.00 / 6) (#21)
by cr8dle2grave on Mon Nov 25, 2002 at 01:00:04 AM EST

Since then, the court has chipped away at miranda a few times because they feel its an overreach of their own power. For the most part, miranda is already dead and has been for a few years. The fact its not really a law to begin with never helped it out.

Miranda has not been effectively dead for many years, in fact, it is still very much place and will remain so even if the current court narrows its scope. The original Miranda decision was broadly worded, as is common in many judicial decisions, and its scope has been clarified and narrowed in subsequent years, but it has hardly been overturned. Police still must inform someone of their rights after arresting them and prior to interrogating them. I suspect that what you intended to say is that subsequent courts have tended to favor a narrow rather than a broad interpretation of Miranda.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
whats weakened it... (4.50 / 4) (#23)
by Work on Mon Nov 25, 2002 at 01:12:53 AM EST

has been when most cases come up about a suspect not being read their rights (or some similar technicality), the court has almost always ruled on the side of the police. In this, miranda has been narrowed down enough to be nearly useless and pointless.

miranda is a mere step away from being overturned. pity i sold my constitutional law textbook, as it had a great wealth of information about it...

[ Parent ]

You need to be more specific (4.00 / 2) (#24)
by cr8dle2grave on Mon Nov 25, 2002 at 01:26:55 AM EST

I have no doubt that Miranda has been narrowed over the years, but absent the specifics of the rulings you have in mind I can't respond with specificity myself.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
looking on findlaw (3.50 / 2) (#26)
by Work on Mon Nov 25, 2002 at 01:30:31 AM EST

having some troubles. Unfortunately findlaw's synopsis of the most recent ruling Dickerson, which was the last real test of miranda doesnt include Scalia's actual dissent which included specific cases in which the court had chipped away at the ruling. Will continue the search...

[ Parent ]
Please do... (none / 0) (#28)
by cr8dle2grave on Mon Nov 25, 2002 at 01:40:51 AM EST

I'm a bit of a SCOTUS junkie and I'd love to look over the case law.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
Specifics (4.75 / 4) (#45)
by gibichung on Mon Nov 25, 2002 at 08:15:37 AM EST

The better-known ones:

Harris v. NY: statements taken in violation of Miranda ruling can be used to impeach the defendants testimony if he chooses to testify.

Nix v. Williams: the inevitable discovery case. If ill-gotten testimony is used to find something (in this case, the body of a murdered child) that would have been eventually found, the evidence may be used (not the statements, however).

RI v. Innis: interrogation must consist of direct questioning. If a suspect chooses to enter a conversation between police officers that he overhears, his statements can be used. This is not to be confused with trickery, as in Brewer v. Williams (the same Williams from above).

NY v. Quarles establishes the "public safety" exception.

Duckworth v. Eagan established that police need not read the "Miranda Rights" word for word; they are only required to make the defendant aware of them; paraphrasing, etc, is legal.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

Thanks! (5.00 / 1) (#74)
by cr8dle2grave on Mon Nov 25, 2002 at 02:25:56 PM EST

I was not previously aware of the Innis ruling. I think each of the above cases demonstrate my point that the scope of Miranda has been narrowed, but that the core precept it established remains firmly in place.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
Yes (none / 0) (#140)
by mindstrm on Tue Nov 26, 2002 at 05:48:45 PM EST

to the point where it is good for police to mirandize people they are arresting right off the bat, loudly and clearly, so that it doesn't become an issue later.


[ Parent ]
Wrong (none / 0) (#112)
by vile on Tue Nov 26, 2002 at 07:02:28 AM EST

Not for federal agents: Like these.

~
The money is in the treatment, not the cure.
[ Parent ]
If Congress had legislated it... (4.75 / 4) (#44)
by dachshund on Mon Nov 25, 2002 at 08:13:32 AM EST

... then the States' Rights people would be complaining about Congress unconstitutionally imposing its will on a matter of local government. And the fact is, they'd be right. The Court, on the other hand, (at least since the early days) has the jurisdiction to protect Americans' constitutional rights.

But for a good example of the courts' views on the subject, see this report on the court's decidedly unenthusiastic response to arguments U.S. vs. Drayton, a case involving police's alleged duty to inform suspects that they have a right to decline a search.

[ Parent ]

Duh, what's TLA? <nt> (5.00 / 3) (#25)
by Meatbomb on Mon Nov 25, 2002 at 01:27:01 AM EST



_______________

Good News for Liberal Democracy!

[ Parent ]
Three Letter Acronym -NT (5.00 / 1) (#29)
by CaptainSuperBoy on Mon Nov 25, 2002 at 01:44:41 AM EST



--
jimmysquid.com - I take pictures.
[ Parent ]
The court dislikes miranda. (3.85 / 7) (#12)
by Work on Sun Nov 24, 2002 at 11:09:25 PM EST

Virtually every court since after the one that created miranda have felt it to be an overextension of SCOTUS' power. That kind of legislating from the bench is what the court today tries to avoid, and miranda has been weakened since then to be nearly pointless anyway.

Do some research into its history.

Restating Pertinent Info (4.60 / 5) (#30)
by Bios_Hakr on Mon Nov 25, 2002 at 01:58:59 AM EST

It's my understanding that Miranda rights are not additional rights, just a restatement of your constitutional rights at the time of arrest.  There are a lot of people who may not know that you have the right to not incriminate yourself.  The constitution guarentees you that right, Miranda just restates that.

I don't know if having a lawyer is in the constitution, but people need to be assured that they will have some form of legal defense.  Imagine a world where you were brought before a court with no one to defend you.  Defending yourself would suck if you didn't know the procedures.

Basicly, without Miranda, the accused could be held indefinately, questioned harshly, and coerced into confessing.  While it may suck to have a murderer go free because of a overzeallous cop, it would suck twice as much to have an innocent man in jail and the real murderer walking free.


[ Parent ]

Miranda isn't the constitution (4.87 / 8) (#34)
by newellm on Mon Nov 25, 2002 at 02:52:00 AM EST

Basicly, without Miranda, the accused could be held indefinately, questioned harshly, and coerced into confessing.

This is incorrect. Miranda just refers to the court case in which the judges declared that police have to inform people of certain constitutional rights when they arrest them. Without Miranda, police would not have to inform people of their rights, but they still could not violate them. They could not hold you indefinately(unless it falls under the new terror legislation), and they couldn't physically abuse you, because that would be breaking our constitutional rights. Sadly, I think that many of these rights are often violated anyway.



[ Parent ]
it can't be stressed how right you are nt (none / 0) (#37)
by MrLarch on Mon Nov 25, 2002 at 07:01:59 AM EST



[ Parent ]
no, miranda doesn't do that (4.40 / 5) (#35)
by ogre on Mon Nov 25, 2002 at 02:58:12 AM EST

Basicly, without Miranda, the accused could be held indefinately, questioned harshly, and coerced into confessing.
You don't need miranda for it to be illegal to hold someone indefinately or coerce a confession. Harsh questioning is legal even with miranda.

Mirana just says that if someone says something incriminating after they are arrested because they don't know they have the right not to, then you can't use that in court. Hence it becomes the responsibility of the arresting officer to give legal advice before questioning the suspect. Frankly, it's a ridiculous decision.

This case doesn't even seem relevant to miranda since the guy didn't say anything incriminating and they didn't try to use anything he said in court. It looks to me like someone is trying to broaden miranda to the benefit of the accused by claiming this legal advice from the police officer is some sort of civil right and hence subject to the civil rights act.

Everybody relax, I'm here.
[ Parent ]

none of this is true. (5.00 / 2) (#52)
by Work on Mon Nov 25, 2002 at 10:21:58 AM EST

Miranda is a statement. Nothing more, nothing less. The right to counsel isnt constitutional, but was ruled on in an earlier case. If you arent read your miranda's, its not like you dont get a lawyer. Thats absurd.

Same for the other things. Your rights exist whether you know about them or not. Only thing is, you can voluntarily waive your rights if YOU want to. If people are ignorant of their rights, they may not know which they don't have to waive when talking to police. This is what miranda is for, to advise people that they do not have to talk, that they have the right to a lawyer etc.

[ Parent ]

caveat (4.50 / 2) (#69)
by ethereal on Mon Nov 25, 2002 at 01:49:30 PM EST

If you aren't read your rights, and you don't know that you are entitled to legal counsel, then it may very well be the case that you don't get a lawyer, or don't get one very quickly. I would imagine that the police, if they think you are guilty and/or likely to talk, aren't going to be quick to volunteer to get you a lawyer.

--

Stand up for your right to not believe: Americans United for Separation of Church and State
[ Parent ]

Correct. (5.00 / 1) (#80)
by Work on Mon Nov 25, 2002 at 03:38:02 PM EST

you are much more likely to 'voluntarily' give up your rights if you don't know what rights you have. However the above poster seemed to state that such rights never existed at all prior to miranda.

[ Parent ]
granted. (none / 0) (#158)
by ethereal on Tue Nov 26, 2002 at 08:44:46 PM EST

I was just responding to "If you arent read your miranda's, its not like you dont get a lawyer. " In some cases you could end up not getting a lawyer until it's effectively too late.

--

Stand up for your right to not believe: Americans United for Separation of Church and State
[ Parent ]

I've picked strawberries. (1.63 / 11) (#13)
by /dev/trash on Sun Nov 24, 2002 at 11:09:52 PM EST

And any kind of knife would butcher the plants and fruit.  What was this guy really hiding?

---
Updated 02/20/2004
New Site
Migrant strawberry pickers (5.00 / 7) (#33)
by Kintanon on Mon Nov 25, 2002 at 02:32:54 AM EST

They use a long, thin bladed knife with a little hook on the end (from what I've seen) because they have to pick a LOT of strawberries REALLY fast. The just hook the plant right above the fruit and it cuts it off and the fruit drops into their basket. So I seriously doubt the knife could have been used to kill anything bigger than a strawberry plant. More likely the guy was an illegal immigrant or someone who just didn't understand what was going on very well and panicked.

Kintanon

[ Parent ]

oh so he was hiding. (2.33 / 6) (#72)
by /dev/trash on Mon Nov 25, 2002 at 02:17:26 PM EST

I thought he was like maybe a citizen.

---
Updated 02/20/2004
New Site
[ Parent ]
He was hiding (none / 0) (#175)
by gibichung on Wed Nov 27, 2002 at 03:41:24 PM EST

the fact that he was intoxicated with alcohol and was high on herion. It's in the brief, but curiously omitted from the LA Times article.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
well of course. (none / 0) (#180)
by /dev/trash on Wed Nov 27, 2002 at 09:19:59 PM EST

I lost TU status over my comment, but hey, as long as the illegal drunk, drug using, knife wielding migrant workers get a say, who am I to argue?

---
Updated 02/20/2004
New Site
[ Parent ]
Welcome to k5. [nt] (none / 0) (#181)
by gibichung on Thu Nov 28, 2002 at 08:29:23 AM EST



-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
blah. (none / 0) (#183)
by /dev/trash on Thu Nov 28, 2002 at 03:38:40 PM EST

I've been here almost two years, that's the first 0 I've ever gotten.

---
Updated 02/20/2004
New Site
[ Parent ]
It's not a normal strawberry knife (none / 0) (#173)
by Moebius on Wed Nov 27, 2002 at 12:48:54 PM EST

Reread the article. It's a knife for stealing strawberries that others have stored in leather containers on their belts.

[ Parent ]
The equivalent in the UK ... (4.80 / 15) (#14)
by ukryule on Sun Nov 24, 2002 at 11:10:37 PM EST

About ten years ago, the UK changed its laws on your rights when arrested. It used to read something like:
You have the right to remain silent. Anything you do say may be written down and used in a court of law ...
But has now been changed to:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
So, while you still have the 'right' to silence, your silence can be considered incriminating (i.e. in a trial, the jury can be told that you didn't mention something which is crucial to your defense when arrested). However, you are always allowed to consult with a lawyer first, so the police can't hold the statement "I'm not saying anything until my lawyer gets here" against you.

More info here.

Well (3.00 / 1) (#138)
by mindstrm on Tue Nov 26, 2002 at 05:44:49 PM EST

Can't this be said in court in the US? If I invoke my right not to say anything, can that fact not be brought up in court? I mean, it's just the TRUTH.

The judge and/or jury can easily be told "Yes, he said nothing, because that's his right under the US Constitution, and it would be wrong to assume he's guilty because he invoked the same rights we all have"... but they can still mention it.


[ Parent ]

Nope... (none / 0) (#185)
by rtechie on Sat Nov 30, 2002 at 04:43:03 AM EST

Because it's not relevant, since everyone has those rights as you pointed out.

The ONLY reasons a prosecuter would bring this up in court would be to influence the jury by making the defendant look like he's hiding something. Such veiled innuendo is specifically prohibited in US courts. This doesn't stop prosecuters from trying to sneak it in when questioning the arresting officers.

[ Parent ]

I am so glad I do not live there (2.40 / 22) (#17)
by Edgy Loner on Mon Nov 25, 2002 at 12:22:13 AM EST

This just makes me sick. Those pigs should be taken out and shot like the dogs they are.
No trial
No niceties
Fucking einsatz the motherfuckers.
Any populance that submits to that kind of oppression doesn't deserve one lick of liberty.

This is not my beautiful house.
This is not my beautiful knife.
Sure, as long as we can do the same to you (3.50 / 6) (#41)
by Demiurge on Mon Nov 25, 2002 at 07:55:29 AM EST

Whenever anyone, anywhere, at any time, accuses you of a crime. We'll grab a rope, gather a mob, and head out to the ol' lynching tree.

[ Parent ]
"Einsatz"? (4.50 / 2) (#91)
by Dephex Twin on Mon Nov 25, 2002 at 05:22:49 PM EST

What do you mean, "einsatz" them?  That word isn't a verb, but if it were, I'm not sure what it is intended to mean here.  Utilize them?  Employ them?  Mobilize them?

Sorry, I am just confused.  Does it have some meaning in English that has evolved away from the German?


Alcohol: the cause of, and solution to, all of life's problems. -- Homer Simpson
[ Parent ]

Isn't Miranda rule already useless anyway? (4.61 / 21) (#27)
by Pac on Mon Nov 25, 2002 at 01:36:35 AM EST

I mean, your Congress has just passed something called the Patriot Act. Secret Courts were upheld some other week as was detention without accusation for any period of time. In a few months the police officers would have to say "You have no rights whatsoever. Speaking or remaining silent is irrelevant, since it is already decided you are guilt, although speaking will allow for better meals during the undetermined period of time we will be holding you".

Better cut the crap now, because few cops and suspects will be able not to laugh.

Evolution doesn't take prisoners


Presentation could be improved, but +1 FP (4.00 / 4) (#31)
by HidingMyName on Mon Nov 25, 2002 at 01:59:37 AM EST

I had to vote this up, since the Miranda ruling is just too important in the U.S. I really hope it is not weakened any further. However, if possible, I would still like to see the following improvements:
  • SCOTUS is not a normal lay persons term for the U.S. supreme court. Most people would say Supreme Court (the federal/U.S. part is understood).
  • The Miranda Ruling (or Miranda Decision if you prefer) is an interpretation of constitutional law based on a celebarated Supreme Court case. The precedent can be struck down by the court. This is not a legislative process of making law but a judicial process of interpreting the law.


Too Late (2.50 / 2) (#32)
by HidingMyName on Mon Nov 25, 2002 at 02:00:51 AM EST

Never got to vote. Still an important story.

[ Parent ]
Uggh, dammit... (4.60 / 10) (#36)
by AngelKnight on Mon Nov 25, 2002 at 03:08:58 AM EST

With respect to utter lack of behavioral taste or class, I would like to know how this is supposed to be that different from a cop in New York losing his mind and deciding to shove a floor lamp into someone else's rectum.

I want to know what was *possibly* supposed to be obtained from the words of a man who had just had an eye shot out and several new sinus cavities burrowed into his head via pulse weaponry, especially considering that the "perpetrator" was armed with what's basically a farming implement and, as far as anyone is saying, *HADN'T* verifiably attacked an officer with it.

Hell, why was the backup officer using a gun when his partner was obviously in a close quarters struggle with a suspected perpetrator?  Sure, you can miss with a baton just as easily as with a gun, but a one-swing mistake is usually a good deal less dangerous than a one-shot mistake.

Do you trust everything you read? (4.50 / 6) (#40)
by Demiurge on Mon Nov 25, 2002 at 07:54:09 AM EST

I'm not saying that the story is a lie, I'm saying that it is no doubt biased to at least a small degree due to the author's beliefs.

Now, I'm not saying that the guy who got shot was obviously a dangerous criminal who attacked the police without provocation and had to be stopped by those brave officers. I'm also not saying that he's just a poor, hard-working migrant whose life has been destroyed by a bunch of fascist pigs.

The truth no doubt lies somewhere in between

[ Parent ]
It's still no excuse (5.00 / 6) (#47)
by jaymz168 on Mon Nov 25, 2002 at 09:19:09 AM EST

Whether he grabbed the gun or what his motivation for doing so are irrelavent really, he had the right to be free from "persistent interrogation of the suspect despite repeated requests to stop.. (in violation of)..suspect's 5th and 14th Amendment right to be free from coercive interrogation."

[ Parent ]
You know (3.00 / 2) (#104)
by X3nocide on Mon Nov 25, 2002 at 08:32:25 PM EST

there might be other reasons for wanting to know what happened. Remember, the cops just shot the dude up and all. If he grabbed the gun then the officers might have had a better reason to lay him down than if he didn't. Although I really don't know what getting an answer out of him before he died would get you unless you really didn't like the officer in question.

pwnguin.net
[ Parent ]
There's one thing I didn't read - (5.00 / 4) (#82)
by pyramid termite on Mon Nov 25, 2002 at 03:53:56 PM EST

- what the migrant worker was charged with, much less convicted of. No charges and no convictions equals innocent in our legal system.

And so the question is - why has a legally innocent man been blinded and crippled for life by the police?

On the Internet, anyone can accuse you of being a dog.
[ Parent ]
...A stupid question (none / 0) (#114)
by gibichung on Tue Nov 26, 2002 at 07:20:14 AM EST

If a bank robber is shot dead in a shoot-out with the police, he is never "charged, much less convicted." -- "legally innocent."

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Not relevant. (none / 0) (#127)
by Happy Monkey on Tue Nov 26, 2002 at 12:50:33 PM EST

He's not dead.
___
Length 17, Width 3
[ Parent ]
Yup... (none / 0) (#186)
by rtechie on Sat Nov 30, 2002 at 05:15:06 AM EST

And if the police in question cannot prove in a court of law that the bank robber was shooting at them, which justified their use of lethal force, they should go to prison. At least that's how it SHOULD work.

[ Parent ]
Innocent until proven guilty? (none / 0) (#187)
by gibichung on Sat Nov 30, 2002 at 10:03:13 AM EST

In the United States of America, you're never expected to prove that you are innocent when answering a criminal charge (in court).

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Dangerous attitudes (4.21 / 14) (#38)
by gibichung on Mon Nov 25, 2002 at 07:32:23 AM EST

I have to congratulate you, Arthur Teacher: you've done a fine job of demonstrating something that many of us have suspected for a long time. Even many of the most obnoxiously outspoken citizens are both ignorant of the law and have an unfounded sense of adversity and enmity with the police.

The Supreme Court's ruling in Miranda v. Arizona was as precarious as it was controversial; 4 judges dissented. Since '66, the Supreme Court has done nothing but chip away at Miranda (inevitable discovery; use of "illegally" obtained confessions for impeachment of defendants' court testimony; and most importantly, the "public safety" exception to Miranda.

In NY v. Quarles, the SC ruled that Miranda did not apply in a situations in which the public safety may depend on getting information out of the suspect. How can this be? Because Miranda is only intended to keep testimony from being ill-gotten with the intention of being used in court.

But Miranda's narrow protection is also precarious; in recent challenges to Miranda, the best excuse that majority opinions upholding it have used has been stare decisis. A fine quote from a recent case (Dickerson v. U.S.) is:

"These decisions illustrate the principle-not that Miranda is not a constitutional rule-but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision."
Miranda is not a law; it is a right and it is not absolute. For example, the Constitution forbids warrantless searches, but modern interpretation allows exceptions: searches Incident to Arrest; conducted on a vehicle (with probable cause: the Carroll Doctrine); searches following an observation by an officer who is legally there: Plain View; etc. Miranda is no different; circumstances which allow police to legally violate this right do not "repeal the law" [sic].

But let us return to where I've begun: pairing ignorance and enmity with the police is dangerous. In this particular case, the police were within their rights to "pat down" someone based on reasonable suspicion (see the Terry Doctrine.), and there was no reason for this man to resist; yet he was afraid enough not only to flee, but to resist. Even when dealing with a restrained and well-intentioned officer, this is dangerous and, frankly, stupid. Promoting these attitudes endangers not only anyone ignorant enough to follow them, but the lives of officers and the very respect for the rule of law that allows society to function.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt

High and mighty (4.50 / 8) (#51)
by Nexus7 on Mon Nov 25, 2002 at 10:16:37 AM EST

I bet you have an FOP sticker on your car too. If the police were allowed to use excessive force without recourse for their victims then they are no different from any criminal organization. Anybody with weaponry can substitute for them in that case. The idea of a police force is of one authorized by the citizens to exercise their judgement formed by training and experience. Hwoever in a case like this I see the police preying on fear of authority, just as in Abner Louima (sp?). Why don't they video-tape every arrest? Why do they mount defenses like this to obviously egregious conduct? We pay for the police, if they are to be protected from the consequences of their own poor judgement we may well let the mafia do it and it will be cheaper.

[ Parent ]
And rightfully so, (2.00 / 2) (#53)
by gibichung on Mon Nov 25, 2002 at 10:42:56 AM EST

Considering that your comment has absolutely nothing to do with Miranda.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Relevant (4.50 / 2) (#54)
by Nexus7 on Mon Nov 25, 2002 at 10:50:14 AM EST

I was addressing your defense of striking down Miranda, based on your following reasoning. "But let us return to where I've begun: pairing ignorance and enmity with the police is dangerous. "

I'm saying that sometimes is is appropriate to make this pairing, perhaps not ignorance but just poor policing skills. That is why people like Miranda rights.

I'm not understanding what it is about my reply that you find not apropos.

[ Parent ]

My defense (1.00 / 1) (#56)
by gibichung on Mon Nov 25, 2002 at 11:00:54 AM EST

I was addressing your defense of striking down Miranda, based on your following reasoning. "But let us return to where I've begun: pairing ignorance and enmity with the police is dangerous. "
Perhaps you need to read more closely; that is much broader commentary. It is certainly related to the details of this case, but more so the attitudes behind it and this particular article on k5.

And concerning the second dimension that I covered: you still don't seem to understand that Miranda has not been struck down. I'd love to explain why it should be, but unfortunately I'll have to leave that for another day.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

Holy rule of law (4.84 / 13) (#57)
by dachshund on Mon Nov 25, 2002 at 11:22:03 AM EST

But let us return to where I've begun: pairing ignorance and enmity with the police is dangerous. In this particular case, the police were within their rights to "pat down" someone based on reasonable suspicion (see the Terry Doctrine.), and there was no reason for this man to resist; yet he was afraid enough not only to flee, but to resist.

It strikes me that the people who come off worst from this story aren't the arresting officers or the man being searched. The conduct that truly embarrasses the police-- and justifies every cynic's distrust of the profession-- is the agressive tape-recorded interrogation of a near-fatally wounded and medicated individual.

This is precisely why rulings like Miranda exist: because some cops will abuse their authority and attempt to coerce testimony from detainees through deception or under thoroughly inappropriate circumstances. Not all cops, mind you, only a minority. But that minority is enough to poison the entire criminal justice system unless strong measures are taken to shore it up against abuse.

I submit that the reason so many people do stupid things like fleeing (when they should have no particular reason to fear arrest) is because many cops do abuse their position, at least with respect to certain elements of society. When someone criticizes a police department for brutality, it's as much of an anti-police reaction as you seem to think it is. People trust police and depend on them-- but they also recognize that use of unnecessary force and brutality results in more distrust and violence on all sides.

Promoting these attitudes endangers not only anyone ignorant enough to follow them, but the lives of officers and the very respect for the rule of law that allows society to function.

As for your beloved "rule of law", hogwash. I find that lately, there is an alarming tendency to invoke this pseudo-holy phrase whenever somebody needs a specific, minor ruling to take precedence over a more complex, but important principle. The cop who interrogated that man was not acting within the standard interpretation of the law, as it had been interpreted by the courts, and let's face it: what he was doing was just plain wrong-- immoral and disdainful of the Constitution, even if the courts do restrain themselves.

That cop is the real danger here, even if he is ultimately forgiven for his actions. One man running away from the cops probably won't destroy our society, but when the police start operating under their own set of rules... that's when you should really be worried.

[ Parent ]

Or maybe not (5.00 / 3) (#87)
by rantweasel on Mon Nov 25, 2002 at 05:03:12 PM EST

"Since '66, the Supreme Court has done nothing but chip away at Miranda..."

I'd call that pretty standard for SCOTUS behavior.  They make a fairly broad precedent setting ruling (or set of rulings), and then over the next few decades, they narrow it as needed.  Look at Brown v Board, then look at Palmer v Thompson, etc.  They narrow the scope of the original ruling slightly and clarify the details of the initial ruling(s).  Or look at Mapp v Ohio, then look at your warrant exceptions, and the fruit of the poisoned tree doctrine.  The point is, they might chip away, but the chipping is not to eliminate the precedent as much to clarify and refine the ruling.

And going back to where you started, I would say that a poor migrant worker should be scared - look at the major cases of police brutality over the last few decades.  The victims are predominantly poor minorities.  The police may have been within their Terry rights, but they certainly weren't justified in shooting an innocent man 5 times, regardless of whether his Miranda rights were violated or not.

mathias

[ Parent ]

Redundant comment (3.00 / 2) (#89)
by gibichung on Mon Nov 25, 2002 at 05:21:17 PM EST

The point is, they might chip away, but the chipping is not to eliminate the precedent as much to clarify and refine the ruling.
I believe that I said that.
And going back to where you started, I would say that a poor migrant worker should be scared - look at the major cases of police brutality over the last few decades. The victims are predominantly poor minorities.
Ignorance and irrational fear of the police, also mentioned.
The police may have been within their Terry rights, but they certainly weren't justified in shooting an innocent man 5 times, regardless of whether his Miranda rights were violated or not.
A standard police use-of-force continuum follows the "1+1 rule," which allows an officer to use one level of force above that which a suspect is using. Attacking an officer with a knife is certainly grounds for the use of lethal force.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Woah! Slow down! (none / 0) (#133)
by Kintanon on Tue Nov 26, 2002 at 03:13:22 PM EST

I don't think anywhere was it stated that the cops even believed the guy was trying to attack one of them with a knife. They found a sheathed knife, the guy tried to run (their version of the story), the cop tackled him, yelled "He's got a knife" (No mention of a drawn knife or anything beyond the original sheathed blade), and thenn they shot him a lot. I don't see him attacking anyone ANYWHERE? What's the next level of force up from "Run the hell away?"

Kintanon

[ Parent ]

The LA Times article (none / 0) (#147)
by gibichung on Tue Nov 26, 2002 at 07:40:44 PM EST

is factually inaccurate and its conclusions are ill-considered and sensationalistic. A quote:
When the officer patted him down and grabbed for the knife, Martinez tried to run. Salinas tackled him and tried to handcuff him. As they struggled on the ground, the officer called out that the man had a huge knife. Pena moved closer and fired.
However, the brief states:
It is undisputed, however, that Officer Salinas shouted "[h]e's got my gun."


-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
More on the brief (none / 0) (#148)
by gibichung on Tue Nov 26, 2002 at 08:04:52 PM EST

Petitioner asked respondent whether he had "grab[bed] the gun of the other policeman." J.A. 9-10. Respondent said that he had "pulled the gun" from Salinas' holster (J.A. 13) and "pointed it" at the police.


-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Welp, too bad for him... (none / 0) (#162)
by Kintanon on Tue Nov 26, 2002 at 09:42:03 PM EST

If that's true then he deserved to be toasted. The cops were well within their rights to open fire if the guy did indeed pull a gun and point it at the cops.
He KNEW they were cops, there was no issue of identification being in question. So if he threw down on them, then he deserved to get toasted. However if that was essentially obtained from him while he was drugged up in an ambulence I would doubt the veracity of it.

Kintanon

[ Parent ]

This would explain it all (3.60 / 5) (#39)
by ksandstr on Mon Nov 25, 2002 at 07:38:49 AM EST

... especially the US voting against that international anti-torture agreement a while back.  Land of the free, indeed.


Fin.
What remarkable foresight of Pres. Bush (4.25 / 4) (#42)
by Demiurge on Mon Nov 25, 2002 at 08:01:03 AM EST

To blow off a major international treaty so that a couple cops could shoot some innocent migrant.

That's as sensible as saying that Finland collaborated with the Nazis not because they were enemies of Russia, but because those worthless scumbag racist Finns wanted to cozy up to the people who were wiping out six million jews. But that's clearly wrong and nothing but inflammatory dribbel, just like your allegations.

[ Parent ]
You can't shake the devil's hand... (4.50 / 2) (#92)
by Hillgiant on Mon Nov 25, 2002 at 05:25:14 PM EST

...and say you're only kidding.

While it may not be a direct correlation, it does show a creepy trend in the Bush administration: "I am the superpower, I will do as I damn please."

-----
"It is impossible to say what I mean." -johnny
[ Parent ]

Links to information about Miranda vs Arizona (5.00 / 6) (#46)
by Arthur Treacher on Mon Nov 25, 2002 at 08:52:27 AM EST

Overview with lots of links

Links to later SCOTUS rulings concerning Miranda vs Arizona

"Henry Ford is more or less history" - Bunk
Alright, I give up (3.12 / 8) (#49)
by etherdeath on Mon Nov 25, 2002 at 09:30:50 AM EST

Anyone have a place to rent in Canada?

I've got a room for fleeing Americans... (4.33 / 6) (#50)
by israfil on Mon Nov 25, 2002 at 09:59:09 AM EST

Yikes!  I never in my wildest dreams imagined that America would fall so far from its vaunted ideals.

In Canada... you don't have to talk to the police.   You can be required to testify, but you can't have your testimony beaten from you.  You don't plead the fifth, it's just that if you testify, your incriminating statements can't be used against you.

And if you don't testify, then you can be cited with contempt of court.  But that's testimony in court.  If a police officer beats it out of you, you have him charged with assault, or you sue him.  But it's not because of a 5th amendment equivalent, but rather because people shouldn't be beating on other people, period.

i.
i. - this sig provided by /dev/arandom and an infinite number of monkeys with keyboards.
[ Parent ]

this doesnt make sense. (2.33 / 3) (#55)
by Work on Mon Nov 25, 2002 at 10:58:06 AM EST

But it's not because of a 5th amendment equivalent, but rather because people shouldn't be beating on other people, period.

So in canada its not written down anywhere that the cops cant beat suspects, its just a 'known' thing? So how is it illegal if it happens hm?

[ Parent ]

Common law, I believe. (4.00 / 1) (#59)
by nstenz on Mon Nov 25, 2002 at 11:56:55 AM EST

Don't ask me how the heck it works; it's just based on common sense over hundreds of years or something.

[ Parent ]
It's in the Canadian Constitution (5.00 / 4) (#61)
by ghjm on Mon Nov 25, 2002 at 12:13:54 PM EST

Here is the section on legal rights. In this case the relevant items are 8 and 12.

LIFE, LIBERTY AND SECURITY OF PERSON.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

SEARCH OR SEIZURE.
8. Everyone has the right to be secure against unreasonable search or seizure.

DETENTION OR IMPRISONMENT.
9. Everyone has the right not to be arbitrarily detained or imprisoned.

ARREST OR DETENTION.
10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

PROCEEDINGS IN CRIMINAL AND PENAL MATTERS.
11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

TREATMENT OR PUNISHMENT.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

SELF-INCRIMINATION.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

INTERPRETER.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

[ Parent ]

so wait a second.. (2.50 / 2) (#79)
by Work on Mon Nov 25, 2002 at 03:36:58 PM EST

it is in an 'equivalent' of the US's 5th amendment?

my point is that the poster seemed to suggest that canada is somehow better off for not writing down excessive force by police is bad, therefore, illegal.

Personally, i'll take having my most basic rights enunciated in the highest law of the land any day, where they wont be repealed or nullified.

[ Parent ]

I don't know what kind of crack (5.00 / 2) (#108)
by ghjm on Mon Nov 25, 2002 at 11:40:47 PM EST

the previous poster was smoking. Of course it is written down that excessive force by police is bad, therefore, illegal. The Charter of Rights and Freedoms is the Canadian equivalent to the U.S. Bill of Rights. The difference is that the Canadian Constitution contains these rights in its main text, where in the U.S. they were added as amendments. So in the U.S. you say "The Fifth Amendment" but in Canada you say "Charter of Rights and Freedoms, Articles 11(c) and 13." It looks to me like the Canadian version gives you more rights, because your testimony still can't be used in another court case even if you *do* choose to testify against yourself.

As to "having my most basic rights enunciated in the highest law of the land [...] where they won't be repealed or nullified," there is no difference between Canada and the U.S. here. Both nations have a Constitution which spells out your fundamental rights, and which is higher than any law. Both can take away your rights under the Constitution only through the fairly difficult amendment process, or by having the Supreme Court decide that words don't mean what they seem to mean. The Canadian constitution does not include a right to own firearms, but includes all the other basic rights granted in the U.S. constitution - plus several additional ones. For example, it is constitutionally provided that every citizen of Canada has the right to enter, remain in, and leave Canada at will; and that an interpreter must be provided in any court proceedings where a party does not speak the prevailing language.

The new Canadian Constitution is actually quite a respectable piece of work. It was created in 1982 so it reflects modern political thinking much better than the 200+ year old American Constitution, though it must be said that the Canadian document does not achieve the ringing tone of the American one. Most Canadians are less familiar with their own Constitution than that of the U.S., because you can get a reasonably good U.S. Constitutional grounding from "L.A. Law" and "Ally McBeal." However, reading the Canadian Constitution is an interesting exercise for both Canadians and Americans.

-Graham

[ Parent ]

don't forget . . . (5.00 / 1) (#176)
by WebBug on Wed Nov 27, 2002 at 04:35:24 PM EST

I wish I had my copy of the CCofC here,  but, there is a section that in the case of wrongful arrest, a citizen not only has the right to resist arrest, but also the right to press for criminal charges against the officer in question.

excessive force is seriously frowned upon in Canada as well, a recent (last 10 years) case in Vancouver saw a police officer who attempted to illegally detain a citizen end up spending 5 years in prison.

which is a far cry from being dismissed the force.
-- It may be that your sole purpose is to server as a warning to others . . . at least I have one!
[ Parent ]

Well... because.. (none / 0) (#136)
by mindstrm on Tue Nov 26, 2002 at 05:37:52 PM EST

beating people is illegal for ANYONE, including cops.  The point is, there is no specific law regarding cops.


[ Parent ]
Well... because.. (none / 0) (#137)
by mindstrm on Tue Nov 26, 2002 at 05:39:25 PM EST

beating people is illegal for ANYONE, including cops.  The point is, there is no specific law regarding cops.

If they gather evidence inappropriately, it may be thrown out of court easily. (or not, depending on the evidence. Example: Cop busts into your house illegally without a warrant or probably cause, yet finds a pound of Colombia's finest on your table....
You still go to prison for the cocaine, but the cop gets in legal shit for breaking the law in the first place.

ie: the fact that the cop shouldn't have been in your house doesn't change the fact that you had a pound of illegal narcotics on the table.

[ Parent ]

So, um. ... how is this about Miranda, again? (4.85 / 7) (#58)
by spcmanspiff on Mon Nov 25, 2002 at 11:45:40 AM EST

It seems to be much more about the 5th amendment. ("No person"..."shall be compelled in any criminal case to be witness against himself")

From the article:
SCOTUS has agreed to hear Oxnard's appeal posing the broad question of whether the Constitution regulates police questioning that does not lead to an incriminating statement in court.

In other words ... the Bad Guys (out-of-control cops and the Bush administration) are attempting to argue that it's just fine to 'compell' information out of someone just so long as what they say isn't used to convict them in court. (It seems that Officer Chavez was trying to get his buddies off the hook by recording a confession from Martinez.)

I can see how they Bush administration would love this precendent. Put the following happy little developments of the past year or so together:

  • The ability to declare someone--even a US citizen--an enemy combatant and throw them in jail without trial or any due process rights.
  • The ability to bring people in as "material witnesses" and keep them in jail without trial or due process rights.
  • (If the Supreme Court lets this through): The ability to torture a confession or other information out of someone.
I guess the only thing they're missing is extralegal executions.

So, um, this seems to be somewhat about Miranda, and mostly about torture. Am I totally off base here?

p.s. What the fuck?!!? This country has gone down the shitter and come back up as a tentacled, many-eyed monster intent on strangling itself. Just how cold does it get in Canada, anyway? I can take it!

 

extralegal executions (3.80 / 5) (#62)
by kurthr on Mon Nov 25, 2002 at 12:33:42 PM EST

Of course you mean extralegal executions of US citizens in the US. Certainly citizens in/of other countries don't have any such rights:

standard Yemen "Predator" attack coverage here.

I'm sure everyone has seen the news.yahoo version of this, but the "progressive" news had a bit more world commentary than techno-boosterism.

[ Parent ]

Not to split hairs or anything, but (4.66 / 3) (#67)
by spcmanspiff on Mon Nov 25, 2002 at 12:58:57 PM EST

that was more an "assasination."

And I haven't been following the coverage very closely, but wasn't a US citizen killed in that attack, too?

I'm thinking execution in terms of:

  • Drag someone to jail
  • Torture for all the information you can get
  • Kill them when you're done
Which, I guess if you're a crazy hawk, makes sense in the War On Terror. We seem to have a lot of crazy hawks lately.

 

[ Parent ]

Bush Bashing...Again (4.33 / 6) (#60)
by n8f8 on Mon Nov 25, 2002 at 12:02:09 PM EST

So, somehow the author sees a conspiracy in a case created five years ago (Bush has only been the Presodent for two). Is the DOJ representing Oxnard? Even if they were, they have a responsability to uphold the law -a SCOTUS decision that apparently screws Martinez's argument.

Let's not confuse the facts of this case with the issues at stake. Sad as Martinez's story is, it is only one small facet of the issue.

Sig: (This will get posted after your comments)

correction (3.50 / 4) (#66)
by dirtmerchant on Mon Nov 25, 2002 at 12:51:25 PM EST

bush has not been president for 2 years, presidents are elected, not appointed by the judicial. bush has been dictator for 2 years. how's that for bush-bashing?
-- "The universe not only may be queerer than we think, but queerer than we can think" - JBS Haldane
[ Parent ]
so.... (4.00 / 3) (#83)
by AnomymousCoward on Mon Nov 25, 2002 at 04:01:45 PM EST

after all the recounts, who still won? what's that? bush? calling an election final to allow the country to move forward is the correct thing to do... it prevents chaos and havok created and encouraged by indecision.

Vobbo.com: video blogs made easy: point click smile
[ Parent ]
It's a dead issue (4.50 / 2) (#90)
by rantweasel on Mon Nov 25, 2002 at 05:22:15 PM EST

But if you want to flog a dead horse even further, read <a href="http://www.gopbi.com/partners/pbpost/news/gore_wins6of9.html">The Palm Beach Post's article</a> on the recount done by the papers, how it turned out, and how the election would have gone in a number of counting methods, etc.  It's not as clear cut as some say, and none of the counts show more than a 500 vote difference (out of nearly 6 million votes, that's not a lot of margin for error).

mathias

[ Parent ]

Bush DOJ filed an amicus brief in this case (4.00 / 3) (#70)
by joemorse on Mon Nov 25, 2002 at 01:49:54 PM EST

...that's why they're involved.

Now let's you just drop them pants!
       -Don Job, from Deliverance
[ Parent ]
Friend of the Court (4.40 / 5) (#71)
by ethereal on Mon Nov 25, 2002 at 02:00:36 PM EST

Apparently the Bush administration has filed some sort of amicus curiae in support of the police department. So while they may not have been in it from the beginning, they're sticking their noses into the case at this point.

I think it's pretty disingenuous to say that they have to uphold the law; a policeman interrogating an abused and possibly dying suspect without proper Miranda warnings or access to counsel is probably breaking more laws (not to mention violating the spirit of Constitutional Amendments) than the suspect was ever accused of. Why shouldn't the Bush administration be supporting the rights of the citizenry (granted this guy may not actually be a citizen) against the unjust actions of the local PD? It would be like the President sending out the National Guard to enforce civil rights legislation; the Federal government has no requirement to act on the side of any law enforcement department anywhere in the country. In circumstances like this they get to choose who to support, they aren't required to support the Oxnard Gestapo if they don't want to.

I imagine they're just in this because they think it will make the War on Terrorists and Ordinary People's Privacy a little easier.

--

Stand up for your right to not believe: Americans United for Separation of Church and State
[ Parent ]

Filing an Amicus brief (5.00 / 2) (#85)
by rantweasel on Mon Nov 25, 2002 at 04:35:10 PM EST

A DoJ can file amicus if it wants to, or it can not file.  If the DoJ wants to preserve Mirandas, they'd file an amicus brief defending Miranda.  This is not a case of the Bush DoJ doing what they are required to, but a case of the Bush DoJ purusing a chosen course of action against Miranda.  Since the amicus brief was filed since Ashcroft was appointed, it is correct to call this a Bush administration effort to change Miranda.

mathias

[ Parent ]

No One Expects the SCOTUS Inquisitition! (3.66 / 6) (#63)
by jefu on Mon Nov 25, 2002 at 12:35:39 PM EST

Cool!

If this goes through, torture will be allowed as police procedure. Not that the cops will be allowed to set up a rack in the police station basement, but it is almost always feasible to find a way to cause some pain - inadvertently, of course.

Fer instance, the cop might dislocate a persons shoulder in putting on the handcuffs. Then as he is leading the subject in to the hospital (police station...) he can ask questions, while (um) "guiding" the subject by the appropriate arm.

Then, naturally, we'll have companies who start to construct handcuffs which will invariably cause pain - but they'll probably be advertised as being just more effective in restraining the prisoner.

And they'll do really well on Wall Street. The industry will grow. Eventually Congress, with the support of the Fatherland (oops, Homeland) Security people will pass laws requiring use of such instruments and we'll have restraint devices, back seats in police cars, cells - all designed to inflict maximum discomfort and pain - and all in the name of security, law and order and goodness and niceness.

banned for life (4.00 / 1) (#65)
by dirtmerchant on Mon Nov 25, 2002 at 12:49:55 PM EST

you should be banned from k5 for life just for the heading of that post.
-- "The universe not only may be queerer than we think, but queerer than we can think" - JBS Haldane
[ Parent ]
Your right... (4.50 / 2) (#75)
by bhearsum on Mon Nov 25, 2002 at 02:47:56 PM EST

...and it makes me _very_ glad that I live up here in Canadia.

[ Parent ]
PC (4.50 / 2) (#76)
by Happy Monkey on Mon Nov 25, 2002 at 02:53:05 PM EST

support of the Fatherland (oops, Homeland) Security

We wouldn't want to be non-PC here in the US.
___
Length 17, Width 3
[ Parent ]
The US is crazy (5.00 / 3) (#77)
by wrax on Mon Nov 25, 2002 at 03:02:02 PM EST

American's are crazy! Look at what their government is doing to them, and have been doing to them for some time. with the ability of the police to search your home or car with little proof of cause they can totally ruin your life by talking to neighbors, bosses, family members and hinting that you may be involved in something, but without actually charging you with anything. This kind of stuff shows up on background checks for future jobs and loan applications making your life almost impossible to live in any way. That was before they passed the patriot act. its only worse now, with a war with Iraq to distract the people and a blitz of press releases about terrorism to distract them further, i will be surprised if bush doesn't enact some kind of war powers act to stay in absolute power indefinetly. and the american people are letting him do it! sure the threat of terrorism is there, but there is a new threat, that of a conquoring United States taking over the world under the guise of "protecting" us all.
--------------------

I don't know whats worse, the fact that people actually write this crap or the fact that people actually vote it up.
[ Parent ]

You know what amazes me... (5.00 / 2) (#81)
by Work on Mon Nov 25, 2002 at 03:45:25 PM EST

how peanut gallery foreign nationals make all sorts of commentary on how the american government is screwing the american people, while ignoring their own governments rampant abuse of rights and powers.

The UK installing cameras on every street corner, German blackbooted 'internet police' storming cafes checking to see that nobody is accessing nazi material, and australian censorship laws... the list goes on. These are all far, far, more terrible than any law america has passed.

Perhaps you should look at your own nation's dirty little secrets and laws.

[ Parent ]

It's a global trend... (4.00 / 1) (#97)
by kcbrown on Mon Nov 25, 2002 at 06:30:57 PM EST

The UK installing cameras on every street corner, German blackbooted 'internet police' storming cafes checking to see that nobody is accessing nazi material, and australian censorship laws... the list goes on. These are all far, far, more terrible than any law america has passed.
Perhaps, but I'm not so sure they're so much worse than, say, USAPATRIOT or the new "Homeland Security" act. That remains to be seen, I suppose.

But in any case, you're certainly right about the problems in other countries. And I can therefore only conclude that the entire world is, on the whole, getting more oppressive over time. I don't see anything that will stop it, which is why I think we're headed for a global police state, even if it consists of multiple "independent" countries.

[ Parent ]

The difference (3.00 / 2) (#98)
by Work on Mon Nov 25, 2002 at 06:44:42 PM EST

we in america question it. The majority of people on these boards who bemoan things like patriot and homeland security act are americans.

When was the last time you saw a debate about german anti-nazi laws and their effect on internet access across the country? Or what about australia's draconian measures? I'm sure not seeing anybody complaining about these. Why are they turning a blind eye to their own serious problems - of their own making - to bitch about america?

[ Parent ]

I don't think it's different... (5.00 / 2) (#99)
by rm888 on Mon Nov 25, 2002 at 07:00:07 PM EST

I see the same pattern in most of the countries affected: the interested, informed, usually tech-literate minority cares about these things, regardless of where they happen. The "masses" are either unknowing or indifferent about what's going on.

It's only natural that you don't see as much criticism of Australian, UK, German, etc. decisions in America. I mean, how would these events affect you? On the other hand, if the U.S. goes out of hand, this may affect people in other countries, as well, so they are watching these events, too.

Of course, you are right in that one should be careful to not adopt different standards, or turn a blind eye on one's own back yard... but I don't think that's what most people do.

[ Parent ]

you misunderstand (none / 0) (#103)
by Work on Mon Nov 25, 2002 at 08:28:17 PM EST

i'm talking about on the internet mostly. though the majority of k5er's are american, there is a sizeable portion that are european. Where is the discussion of their own government's legislation?

[ Parent ]
Even worse... (3.00 / 1) (#163)
by beergut on Tue Nov 26, 2002 at 10:14:57 PM EST

You can argue that Europeons are blind to their governments' abuses, and that may be the case. You certainly don't hear much about the non-democratic EU council, for instance, which is set to dominate Europeon life in the next decade or so.

You can argue that Aussies are very much like the Europeons in this matter, and that folks from Canaduh are in the same boat. They do not question it, because they do not realize that anything is amiss.

Unfortunately, we in America know that what is happening is wrong, and yet, we walk into it with open eyes.

That, to me, is the scariest image of all.

After reading and hearing commentary on the PATRIOT Act, and this new Federal boondoggle, I feel like the musicians on the Titanic, and the song I play while the ship sinks is yet more depressing.

i don't see any nanorobots or jet engines or laser holography or orbiting death satellites.
i just see some orangutan throwing code-feces at a computer screen.

-- indubitable
[ Parent ]

Governments (5.00 / 1) (#168)
by linca on Wed Nov 27, 2002 at 05:45:37 AM EST

In Europe there are many different judicial and executive systems, each with various problems. Whereas the US has 50 to 70 percent of k5 readers, each single European country has about a dozen readers. that doesn't make many people knowledgeable for a discussion. I still remember a discussion where many people were saying the Napoleon law tribunal is a kangaroo court, as they thought the attorney and judge were the same person... Whereas most people have enough superficial knowledge of the American system to discuss it. The EU agenda is still not unified throughout the union, whereas it is in the US.

The other reason is that in many ways US law is becoming law of the world, through TV and international pressure. Some people in France are surprised  when not read their rights while arrested, or repeatedly call the judge "Your Honor"...
And US law, on various matters from copyright to how to deal with terrorists, often become de facto international law through US government and corporate pressure.

[ Parent ]

well canada (none / 0) (#118)
by wrax on Tue Nov 26, 2002 at 09:21:08 AM EST

hasn't passed any laws that restrict my rights to the extent that the USA Patriot Act does. I can still copy mp3's and the RIAA can't come kicking down my door like they can in the states. Also we do have some pretty loose laws in Canada. We don't have the right to bear arms in Canada, but the US won't have that right either in a few years. When you add the fact that our police can't detain you without cause as well I much prefer to live here than the US.
--------------------

I don't know whats worse, the fact that people actually write this crap or the fact that people actually vote it up.
[ Parent ]

Sensationalism at its worst (4.53 / 15) (#64)
by sage on Mon Nov 25, 2002 at 12:44:35 PM EST

I detect a pattern in Mr. Treacher's last two posts.

The headline from November 24: "American law enforcement elite vandalize property and put people at risk for own amusement."

The actual article: A police SWAT team raided the wrong house. Nothing about amusement.

The headline from November 25: "Bush administration pushes for repeal of Miranda law"

The actual article: The Supreme Court is hearing a case on whether police interrogation for purposes other than gathering evidence for prosecution falls under the jurisdiction of the 5th amendment.

I'm rather shocked that no one else has commented on the bait-and-switch headlines Mr. Treacher has used this week. I personally find it sickening. Both stories are important and deserve to be posted, but I would hope that K5 can be free of this kind of deception.

I don't entirely agree (4.33 / 3) (#68)
by valar on Mon Nov 25, 2002 at 01:02:47 PM EST

True, the other article was a 'bait and switch' but the Miranda laws as they stand do not allow this practice, and the Bush administration is puching for these laws to be changed so that it is. This is, in a sense (though not technically, because it is actually an amendment of Miranda law, not a repeal) a repeal of Miranda law.

[ Parent ]
I agree...slightly... (4.00 / 1) (#73)
by PsychoFurryEwok on Mon Nov 25, 2002 at 02:21:02 PM EST

You must admit that both of the articles did have some false statements.

[ Parent ]
clearly (2.00 / 1) (#120)
by crazycanuck on Tue Nov 26, 2002 at 11:20:41 AM EST

Mr Teacher is Un-American, possibly a communist or a terrorist, or worse, a communist terrorist.

have you informed your neighborhood's FBI agent?

[ Parent ]

Misinformation and Hysteria Flow Like Water (4.84 / 13) (#78)
by cr8dle2grave on Mon Nov 25, 2002 at 03:11:52 PM EST

First off let me say that I find the actions of the Oxnard County officers to be absolutely abhorrent and I think the individuals involved should lose the jobs and face both civil and criminal liability. Further, Oxnard County and other liable jurisdictions should have to pay through the nose for the egregious behaviors of their officers.

That said, the amount of misinformation and hysteria being spread around here is astonishing. If SCOTUS rules in favor of Oxnard County it will in no way overturn Miranda nor will authorize torture or lesser forms of coerced testimony. Period! If you believe otherwise you have a poor understanding of the legal issues involved.

Let me see if I can explain. If, under most circumstances, the police fail to inform someone of their right to an attorney and their right to remain silent after arrest and prior to questioning, then any testimony obtained will not admissible into court as evidence (it is subject to the exclusionary rule). SCOTUS is not being asked to decide on this core aspect of Miranda. What the court is being asked to determine is if being questioned after asking for an attorney gives one standing to file a civil suit alleging violation of civil rights. That is, does the constitution authorize holding the government financially liable for the behavior of its representatives who continue to interrogate after a suspect choses to exercise his right to remain silent. The theory (or interpretation of Miranda) being advanced by the Justice Department is that, based upon previous SCOTUS clarifications of the Miranda decision, Miranda applies only to whether or not evidence can be admitted as evidence in court and that continuing to interrogate a suspect after counsel has been requested does, in itself, establish standing.

If the court rules against Martinez it is not saying that what was done to him is acceptable or that he has no standing to sue Oxnard county for violating his civil rights, the court would merely be rejected the particular interpretation of Miranda advanced by Martinez's lawyers. In fact, if the court rules against Martinez in this case it doesn't mean that they might not accept at a later date another better established argument for extending civil liability under Miranda.

For most of us Kant's categorical imperative is an abstract framework, but it is a concrete everyday reality for SCOTUS. The decisions they make establish general principles that are then universally applied. It is a tremendous ethical and legal burden that too many people fail to understand when criticizing their decisions.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


Are you sure? (4.00 / 5) (#88)
by spcmanspiff on Mon Nov 25, 2002 at 05:05:42 PM EST

Say the court against Martinez... Wouldn't that not only be a rejection of the intrepretation advanced by his side, but also effectively restrict the scope of the 5th Amendment to issues of whether various testimony is admissable, rather than a broad protection against law enforcement abuse? (this is the interpretation advanced by Oxnard & friends)

What do you think the consequences of that precedent would be?

 

[ Parent ]

Nope (4.60 / 5) (#96)
by cr8dle2grave on Mon Nov 25, 2002 at 06:11:14 PM EST

Every year there are successful suits against police departments for brutality and unnecessary roughness predicated upon a variety of legal principles that will be wholly unaffected by the outcome of this case. This case is specifically about using Miranda to establish standing in a civil lawsuit. If the court rules in Martinez's favor, I would be able to sue the appropriate venue if upon arrest I was asked any questions after having requested the presence of counsel. The appalling behavior of the Oxnard County police is not what is at issue here.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
Well, color me confused. (4.00 / 4) (#100)
by spcmanspiff on Mon Nov 25, 2002 at 07:19:46 PM EST

Why is Oxnard arguing:

Oxnard then appealed again, sending the case to SCOTUS.  In their appeal they asked a basic question. Is there a constitutional right to be free of coercive police interrogation?  The answer to that question should be no, they said, citing a 1990 ruling by Chief Justice William H. Rehnquist in which Rehnquist said that the right against self-incrimination in the 5th Amendment was a "trial right." Police cannot violate this right when they force someone to talk, since "a constitutional violation occurs only at trial."

Assuming what you said about the case being "specifically about using Miranda to establish standing in a civil lawsuit," then why the hell is Onxard bringing in all these other questions about basic rights?

Is this some legal trickery I don't understand? Was the original article completely false about the issues raised in the appeal?

To me, it looks like this case is much more about the interpretation of the 5th Amendment than it is about Miranda, and the ruling will provide an answer to the question in the quoted section -- "Is there a constitutional right to be free of coercive police interrogation?"

If that's right, then this is a pretty big frickin' deal, no? And if that's not right, then why is it being brought up by Oxnard in the first place?

 

[ Parent ]

Ahhh, I see the source of your confusion (4.80 / 5) (#101)
by cr8dle2grave on Mon Nov 25, 2002 at 07:36:24 PM EST

The term "coercion" as it appears in this case refers to the fact that he was questioned after asking for an attorney and was not properly appraised of his rights. Oxnard is not maintaining that citizens do not have a right to be free of physical abuse from the police so long as the fruits of such an interrogation are not used against them in a court, but only that it not a violation of a constitutionally secured right to interrogate someone without properly informing of their rights or continuing after they have asked for an attorney.

A perfectly reasonable misunderstanding. The law is riddled with terms of art that often do not correspond at all to their common meanings.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
Last I checked, the law was in English... (3.33 / 3) (#102)
by spcmanspiff on Mon Nov 25, 2002 at 07:55:59 PM EST

If what you say is true, then there's no need to use the word "coercion" at all -- a good idea when preparing a brief since it's such a loaded term, no?

Just because this case involves someone who continued to improperly undergo questioning doesn't mean that the Oxnard appeal isn't based on much broader principles than the specific situation -- in this instance, "SCOTUS has agreed to hear Oxnard's appeal posing the broad question of whether the Constitution regulates police questioning that does not lead to an incriminating statement in court." (from the article)

If "coerce" has some fancy special legal meaning other than "to bring about by force or threat," then I'd like to hear it.

 

[ Parent ]

coercion (5.00 / 1) (#105)
by gibichung on Mon Nov 25, 2002 at 08:49:38 PM EST

Is not just the third degree; it simply means that a confession is not voluntary. The court has interpreted a confession made before a suspect has been advised of his rights as being inherently involuntary. This is, of course, absurd.

On OREGON v. ELSTAD:

A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements.


-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
That's nice, (4.50 / 2) (#106)
by spcmanspiff on Mon Nov 25, 2002 at 09:11:08 PM EST

but I fail to see how the Oxnard appeal limits itself to this wee little definition you provide.

Even your quote demonstrates -- extremely clearly -- that "coercion" has a commonly accepted legal meaning that the Miranda stuff falls outside of.

So where is the proof that the appeal in this case is about coercion instead of Coercion? I've seen plenty of evidence to indicate that this is the Big Deal -- any kind of coercion -- and none to the contrary.

 

[ Parent ]

Listen... (4.00 / 2) (#124)
by cr8dle2grave on Tue Nov 26, 2002 at 12:07:44 PM EST

...I'm not a lawyer, just someone interested in the law and the judiciary, and I am more than open to being shown where my reading of this case is incorrect or where my understanding of the legal issues involved is deficient, but I'm not interested in debating with you at the level of, "lawyers shouldn't say A when what they mean is B." If you wish to argue with me you are going to have to demonstrate some basic competence in reading legal documents. I'd suggest that you get yourself a copy of Black's Legal Dictionary and comb Findlaw for SCOTUS decisions on a subject of interest to you.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
You're missing something (4.00 / 1) (#141)
by dipierro on Tue Nov 26, 2002 at 06:00:45 PM EST

The lawyers for Oxnard are the ones who chose the words to use in the question. They are the ones who are claiming that there was coercion. The court may or may not answer that question directly. Chances are that either way they decide they will not directly address anything beyond the issue of police questioning.

[ Parent ]
That was kind of my point... (none / 0) (#154)
by spcmanspiff on Tue Nov 26, 2002 at 08:28:36 PM EST

Martinez legal team: This guy was questioned improperly re: Miranda, and thus the police department has opened themselves up for liability on that front.

Oxnard legal team: So what? The questioning wasn't going to be used for a trial. As a matter of fact, any type of coercive questioning is just peachy so long as it doesn't get used for self-incrimination purposes.

Amicus briefs: Yeah, we can do whatever we want without exposing ourselves to liability! The fifth amendment is only about what's admissible in a trial or not.

You don't find that disturbing?

 

[ Parent ]

No, I don't find it disturbing (none / 0) (#167)
by dipierro on Wed Nov 27, 2002 at 02:22:45 AM EST

because it's not a decision.

[ Parent ]
What about the Fourth Amendment? (5.00 / 4) (#84)
by chrswill on Mon Nov 25, 2002 at 04:21:01 PM EST

Based solely on the information presented here by Arthur Treacher, I think the Fifth Amendment question about self-incrimination is overshadowed by a much more serious Fourth Amendment question about unreasonable search and seizure.

The Fourth Amendment states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Again, based solely on Arthur Treacher's recounting of the incident, I find the pat-search that revealed the knife on Martinez' person to be an unreasonable search, and I find the officers' attempt to stop Martinez from fleeing to be an unreasonable seizure of his person. Perhaps we don't have all the details. Maybe the officers had "probable cause" to suspect Martinez of illegal behavior, but without probable cause, I think Martinez had the right to "be secure in his person against unreasonable search and seizure." Without probable cause, I believe the officers had no right to perform a pat-search, and no right to seize Martinez merely for resisting such a search, or even for attempting to flee. If the officers did not have the constitutional authority to seize Martinez, then everything that follows, from the struggle, to the shooting, to the interrogation in the ambulance, never should have happened.

You find incorrectly (4.80 / 5) (#86)
by gibichung on Mon Nov 25, 2002 at 04:36:05 PM EST

Without probable cause, I believe the officers had no right to perform a pat-search, and no right to seize Martinez merely for resisting such a search, or even for attempting to flee.
Probable cause is not necessary; all that an officer requires is reasonable suspicion based on his past experience or training. It doesn't even have to be conscious; "the hairs on the back of my neck stood up" or "something just didn't feel right" is often enough under the right circumstances for a Terry Frisk.

Terry v. Ohio established than an officer is allowed to "pat down" the exterior of a person's clothing based solely on said reasonable suspicion, with the intention of searching for weapons. It's all about public safety.

Furthermore, the "Plain Feel Doctrine" established by Minnesota v. Dickerson allows an officer to confiscate contraband in "plain feel" during such a frisk.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

It's a matter of opinion, not of "correctness (5.00 / 2) (#94)
by chrswill on Mon Nov 25, 2002 at 05:40:08 PM EST

My finding that the pat-search was unreasonable is my own opinion, and nothing more. Just because I appear to disagree with a court's opinion on the matter, does not make my opinion "incorrect."

You say that the accepted standard for a pat-search is not "probable cause," but "reasonable suspicion." OK, I accept your terminology. But even if I rewrite my opinion to accommodate you, I reach the same conclusion: the search was unreasonable. My amended opinion follows:

Based solely on Arthur Treacher's recounting of the incident, I find the pat-search that revealed the knife on Martinez' person to be an unreasonable search, and I find the officers' attempt to stop Martinez from fleeing to be an unreasonable seizure of his person. Perhaps we don't have all the details. Maybe the officers had "reasonable suspicion" that Martinez was engaged in illegal behavior, but without reasonable suspicion, I think Martinez had the right to "be secure in his person against unreasonable search and seizure." Without reasonable suspicion, I believe the officers had no right to perform a pat-search, and no right to seize Martinez merely for resisting such a search, or even for attempting to flee.
I should add that, almost by definition, if there is no "reasonable suspicion" then there can be no "reasonable search." So the question before us is, what constitutes "reasonable suspicion"? Surely, there are no correct or incorrect answers to this question, but only opinions.

In my opinion, riding a bicycle through an empty lot did not constitute reasonable suspicion that Martinez was carrying illegal items on his person, or that he was planning to engage in illegal activity. As I have said, perhaps Arthur Treacher has left out crucial details that would change my mind.

It is also my opinion that "having a bad feeling about the guy" doesn't meet the standard. Is it a suspicion? Yes. Is it reasonable? In my opinion, no.

[ Parent ]

You're not making much sense (4.66 / 3) (#95)
by gibichung on Mon Nov 25, 2002 at 05:59:44 PM EST

Your opinion is relevant to you, and only you. The courts don't care what you think.

The standards for conducting a pat down are much, much lower than those for making an arrest or getting a search/arrest warrant. In order to establish "reasonable suspicion," the officer must question the suspect; if the suspect's response must does not dispel this suspicion, a "Terry Frisk" is allowed. The standards are based on the past experience of the officer and how he applies that experience to the situation at hand. Generally, the suspicion has to be reasonable to the officer and his explanation must be reasonable to the court.

Think about it: this man was obviously afraid of the officers; he attempted to flee and resisted after the pat down began. It can be safely assumed that his previous actions gave the officers reasonable suspicion to pat him down.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

What doesn't make sense? (5.00 / 4) (#107)
by chrswill on Mon Nov 25, 2002 at 10:46:27 PM EST

You argue that reasonable suspicion is enough to justify a pat-down search. I argue that the officers did not meet the standard of reasonable suspicion. What doesn't make sense?

I think you're wrong about Terry v. Ohio. You claim that "'the hairs on the back of my neck stood up' or 'something just didn't feel right' is often enough under the right circumstances for a Terry Frisk." But the ruling appears to disagree with you:

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

[...]

And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. (emphasis added)

What facts were available to the officers at the moment of the search? Well, here's the statement from Ted Olson's brief to the US Supreme Court:
On the evening of November 28, 1997, police officers Maria Pena and Andrew Salinas were investigating suspected narcotics activity near a vacant lot in Oxnard, California. While questioning an individual, they heard a bicycle approaching on the unlit path that crossed the lot. Officer Salinas ordered the rider, respondent Oliverio Martinez, to dismount, spread his legs, and place his hands behind his head. Respondent complied.

During a protective pat-down, Officer Salinas discovered a knife in respondent's waistband. Salinas notified Pena and pulled respondent's hands from behind his head to place him in handcuffs. Salinas maintains that respondent attempted to flee; respondent claims that he offered no resistance and Salinas tackled him without provocation. A struggle ensued.

At the moment when Officer Salinas ordered the search, the only fact presented is that Martinez was riding his bicycle on the unlit path that crossed the vacant lot. Does the mere act of riding his bicycle warrant a pat-down search? I say it doesn't. But you assume that because Martinez was afraid of the officers, he must have done something that aroused reasonable suspicion:
Think about it: this man was obviously afraid of the officers; he attempted to flee and resisted after the pat down began. It can be safely assumed that his previous actions gave the officers reasonable suspicion to pat him down.
But a court would not make this assumption. Terry v. Ohio requires the officers to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." What specific and articulable facts did the officers have other than the fact that Martinez was riding his bicycle through the lot?

You say that an officer must question a suspect in order to establish "reasonable suspicion." But the evidence presented indicates that Officer Salinas ordered the search before asking any questions at all. So what information did he use to establish reasonable suspicion? Like I said, perhaps we don't have all the crucial details. But a court would not assume reasonable suspicion, and neither will I.

[ Parent ]

Pardon me, (3.00 / 1) (#109)
by gibichung on Tue Nov 26, 2002 at 04:31:25 AM EST

But you can't base that entire argument on what's omitted from a single brief. The one you linked to only addresses this as backstory, not as the subject of its scrutiny. The question here is interrogation, not the circumstances leading to it. Speculation isn't going to be productive. Find the original case, if it was made at all, and draw your conclusions from it.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Um... (4.33 / 3) (#119)
by chrswill on Tue Nov 26, 2002 at 10:13:16 AM EST

But you can't base that entire argument on what's omitted from a single brief.
OK, but that's not what I did. Instead I limit my argument to what's included in that brief.
The one you linked to only addresses this as backstory, not as the subject of its scrutiny. The question here is interrogation, not the circumstances leading to it. Speculation isn't going to be productive. Find the original case, if it was made at all, and draw your conclusions from it.
On all of this I agree with you. The US Supreme Court case only deals with interrogation, you are correct. Yes, I should attempt to discover if the original case addresses search and seizure. I was simply pointing out what appeared to me to be a huge, gaping hole in the story of what happened. I try not to assume that apparent oversights have some nice, neat, explanation, as you seem willing to do. Instead of quietly assuming, I prefer to ask questions to see if anyone has noticed what I have noticed, and to see if anyone can provide the missing information. Your "safe assumption" that Martinez must have given the officers cause to search him is as speculative as anything I have written here. Good day.

[ Parent ]
My "safe" assumption (3.00 / 2) (#122)
by gibichung on Tue Nov 26, 2002 at 11:58:45 AM EST

is quite safe, I assure you; an officer can question anyone he chooses, and anyone afraid enough to attempt to flee, to resist arrest, and assault a police officer would almost certainly have given reasonable suspicion to warrant such a search. If he could make a case on these grounds, he would have already.

To be honest, I don't believe a word that this man has said, because he lied about the circumstances of the struggle. No officer would try to "tackle" a suspect whose hands he had behind his back and ready to be cuffed. His account is absurd.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

Don't confuse "question" with "sear (4.75 / 4) (#128)
by chrswill on Tue Nov 26, 2002 at 01:45:25 PM EST

You say that an officer can question anyone he chooses. That's true. But the evidence does not indicate that Salinas was merely questioning Martinez. He was searching Martinez, and for that he must have "reasonable suspicion" of illegal activity.

To repeat: An officer may not search anyone he chooses; he must have reasonable suspicion. If Martinez resisted only after the search was conducted, that resistance cannot form the basis of the reasonable suspicion that prompted the search.

And the US Ninth Circuit ruling [PDF, 25k] reveals that Martinez has filed a complaint on Fourth Amendment grounds, which is still pending trial:

Martinez filed a complaint under 42 U.S.C. 1983 alleging that the officer defendants violated his constitutional rights by stopping him without probable cause, using excessive force, and subjecting him to a coercive interrogation while he was receiving medical care. He moved for summary judgment on each of his claims. The district court denied Sergeant Chavez's defense of qualified immunity and granted summary judgment for Martinez on his claim that Chavez violated his Fifth and Fourteenth Amendment rights by coercing statements from him during medical treatment.1

1The district court denied summary judgment on Martinez's claims that he was improperly stopped by the police and that they used excessive force against him. Those claims will be tried to a jury.

The jury is, quite literally, still out on the question of whether Martinez should have been searched.

[ Parent ]
gibichung is right... (none / 0) (#184)
by rtechie on Sat Nov 30, 2002 at 04:35:21 AM EST

I hate to burst your bubble chrswill, but gibichung is right. "At least in California, "reasonable suspicion" is given the broadest definition and application possible.

This means that, in practice, the police can legally do a pat-down search of anyone outdoors at any time, for any reason. Any sort of contraband found during such a search is admissable as evidence.

You might not like this, I sure as hell don't, but that's the law of the land.

[ Parent ]

Hmm, I don't think that's what gibichung said.... (none / 0) (#188)
by chrswill on Sat Nov 30, 2002 at 04:08:03 PM EST

I don't disagree with your point-- it may be true that in practice an officer can perform a pat-down at any time, for any reason. And gibichung might agree with this, as well. But this isn't the argument he makes. While gibichung certainly argues that the standard for reasonable suspicion is low, he also implies that the threshold for a pat-down is higher than "at any time, for any reason." He does not assert that the officers, in practice, needed no justification to search Martinez. He assumes that if Martinez was searched, his previous behavior provided justification.

[ Parent ]
seems reasonable to me as well (4.00 / 1) (#123)
by DrSbaitso on Tue Nov 26, 2002 at 12:03:04 PM EST

IIRC, the defendants in Terry were standing outside a liquor store or something like that. The policeman who saw them believed them to be "casing the joint" - behaving suspiciously like people who were preparing to rob the store. He patted them down and found weapons, and summarily arrested them. There was no probable cause in that case because the guys were just standing outside a store; however, based on their behavior, the officer had reason to suspect something was afoul.

However, Mr. Martinez was merely riding his bicycle. It seems rather difficult to believe that gives anyone reasonable suspicion to search him. Poor guy.

Aeroflot Airlines: You Have Made the Right Choice!
---Advertising slogan for the only airline in the USSR
[ Parent ]

Hmm (4.00 / 1) (#139)
by dipierro on Tue Nov 26, 2002 at 05:47:42 PM EST

It doesn't even have to be conscious; "the hairs on the back of my neck stood up" or "something just didn't feel right" is often enough under the right circumstances for a Terry Frisk.

Can you back that up? I thought the standard was reasonable articulable suspicion, which means "something just didn't feel right" wouldn't be enough.



[ Parent ]
The qualifier (none / 0) (#143)
by gibichung on Tue Nov 26, 2002 at 06:26:05 PM EST

"under the right circumstances" is intended to make it clear that these are exceptional examples which illustrate a broader point: the officers are allowed great discretion here because it is a matter of public safety.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Re-read Terry (5.00 / 1) (#144)
by rantweasel on Tue Nov 26, 2002 at 06:57:49 PM EST

The Terry decision clearly allows an officer to operate on a guess or a hunch, but it has to be a guess or a hunch that can be backed up.  It's not just "I had a feeling", it's "I had a feeling because (s)he was doing X, Y, and Z, and in my experience, that frequently means A, B, or C".

mathias

[ Parent ]

Haggling (none / 0) (#146)
by gibichung on Tue Nov 26, 2002 at 07:32:52 PM EST

over details is unproductive. An officer's "feelings" are based on experience and experience can be articulated. I'm sorry if I didn't explain this to your satisfaction.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
That's not a detail, that's very relevant (none / 0) (#151)
by rantweasel on Tue Nov 26, 2002 at 08:13:39 PM EST

It has to be articulable.  Your "hairs on the back of my neck" comment is not allowable under Terry, where something along the lines of "my gut said that they were casing the place" might be.  The Terry ruling makes the articulability requirement quite clear.

mathias

[ Parent ]

Several days before (none / 0) (#165)
by stpna5 on Tue Nov 26, 2002 at 11:54:16 PM EST

"What About..." was posted, I wrote a brief op-ed about this very amendment and partially quoted it; referring to it's having previously been evaporated by the secret tribunal of the FISA spy court recently. Nobody was interested. We are now living in an emerging garrison state.

[ Parent ]
Can you post a link? (none / 0) (#179)
by chrswill on Wed Nov 27, 2002 at 08:13:12 PM EST

I'd be curious to read what you wrote, if it's available somewhere.

[ Parent ]
Thanks.'Twas brief and briefly (none / 0) (#190)
by stpna5 on Thu Dec 12, 2002 at 07:23:11 PM EST

on K5 but voted off into the vapor, and though I received an e-mail that it was available on some server via an enclosed link the email the server 'couldn't find' it which happens on voted-off op-eds and such I guess.

[ Parent ]
Recently (4.75 / 4) (#110)
by vile on Tue Nov 26, 2002 at 06:41:36 AM EST

My home was raided by federal agents. My roommate, his girlfriend and I were seperated and questioned. We were not read our Miranda rights, as if it wasn't even an issue.

I was told that I was lying and that I had just earned myself another federal charge for 'lying' to an officer, repeatedly. I couldn't understand where these men were coming from. I was scared shitless and tried telling them what they wanted to hear so that they would go away.

I was confined to a square area of a 6x6 foot concrete block wide while questioned, and while waiting to be questioned further, for 3-4 hours.

I asked if I had the right to a lawyer, repeatedly, and was told repeatedly that it was my 'right', but at no time was my right to remain silent to these people re-inforced by them. I was being 'bribed' into writing a statement by threats, which was not written by me, and which in the end, I refused to sign.

We haven't heard from them since. And, they still have hundreds of our things.

Miranda going away? It already has.

~
The money is in the treatment, not the cure.
"Miranda" (4.00 / 4) (#113)
by gibichung on Tue Nov 26, 2002 at 07:17:27 AM EST

only applies to questioning after an arrest. You weren't read those rights because it really wasn't an issue. There certainly are precedents for similar requirements when an interview turns into an interrogation (general to accusatory; but accusing you of lying doesn't count), but no conclusions can be drawn from your account.
And, they still have hundreds of our things.
The government isn't required to return or compensate you for confiscated contraband, even if it is taken illegally. If the search was legal (probable cause, warrant, etc), they can hold onto whatever evidence they need to build a case, for what is generally a very long time (depending on your jurisdiction, the crime, etc.).

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Interesting.. (4.00 / 3) (#115)
by vile on Tue Nov 26, 2002 at 07:24:07 AM EST

They confined me to a space for more than 3 hours. They didn't inform me that I wasn't being arrested. They questioned me. I was woken up and brought outside of my home, handcuffed, in front of my neighbors. There were 8-10 officers, some in bullet proof vests. It sure felt like I was going to be arrested.

This was over a campfire that we had going out in the middle of nowhere, which caused no damage and did not get out of control. Water trucks were called out, but did confirm that we had put our fire out just fine. We were told that we would probably never hear from them again. Yet, we did.

~
The money is in the treatment, not the cure.
[ Parent ]
thats perfectly legal. (3.00 / 3) (#121)
by Work on Tue Nov 26, 2002 at 11:35:59 AM EST

IIRC, you can be held for up to 48 (or is it 72?) hours without being charged for anything. Only 3 hours? you lucky dog.

[ Parent ]
hehe (3.50 / 2) (#125)
by vile on Tue Nov 26, 2002 at 12:26:05 PM EST

Additionally, I was outside of my home, with my shirt off. Kinda cold. Mean officer. :)

~
The money is in the treatment, not the cure.
[ Parent ]
yes but... (none / 0) (#171)
by Run4YourLives on Wed Nov 27, 2002 at 12:01:22 PM EST

You can be arrested and held for up to 48 hrs without being charged. Once they detail you (and the courts have defined arrest - at least up here in canada - as any time the impression is given that you are not free to leave.) you are under arrest.

If it's unlawful, or without cause, you could sue.


It's slightly Japanese, but without all of that fanatical devotion to the workplace. - CheeseburgerBrown
[ Parent ]

Did they think you were eco-terrorists? (nt) (2.50 / 2) (#129)
by chrswill on Tue Nov 26, 2002 at 01:57:14 PM EST



[ Parent ]
*shrug* (3.00 / 2) (#131)
by vile on Tue Nov 26, 2002 at 02:50:20 PM EST

I felt as though I was treated as a terrorist.. that's what I related the situation to. They never told me what they thought.

~
The money is in the treatment, not the cure.
[ Parent ]
And.. (2.50 / 2) (#116)
by vile on Tue Nov 26, 2002 at 07:26:13 AM EST

it was accusatory questioning.

~
The money is in the treatment, not the cure.
[ Parent ]
Statute of Limitations (3.50 / 2) (#117)
by vile on Tue Nov 26, 2002 at 07:31:23 AM EST

should apply, I would think?

~
The money is in the treatment, not the cure.
[ Parent ]
Interestingly.. (4.00 / 2) (#126)
by vile on Tue Nov 26, 2002 at 12:45:32 PM EST

I brought this up to my roommate who said that there was an arrest in that they took control of us. He said that is the definition in this context and that two lawyers and several other people he has talked to all agree. He also mentioned that the police are not allowed to hold our evidence any longer than they may prosecute the crime -- and most of what they took doesn't even apply to the crime.

Additionally, you should know that they wouldn't let me move out of my square.. I was brought into my square in handcuffs.. I was questioned, in my square.. I was told that I could not sit down, in my square. Then I was told that I was allowed to leave my square. Interesting.

~
The money is in the treatment, not the cure.
[ Parent ]
Another important note. (5.00 / 1) (#149)
by HypoLuxa on Tue Nov 26, 2002 at 08:08:57 PM EST

"Miranda" only applies to questioning after an arrest.

Yes and no. The cops are not required to read you a Miranda statement until after they arrest you, however, you Miranda rights still apply at all times. You never have to answer any questions posed to you by the police.

Reading your comment, I don't think you are saying anything different, but I thought it was important to clarify.

--
I'm guided by the beauty of our weapons.
- Leonard Cohen
[ Parent ]

It would have been cool (none / 0) (#157)
by vile on Tue Nov 26, 2002 at 08:36:10 PM EST

and better yet, should be, which I believe it is, a requirement for the cops that were containing me while they were searching my home (which lasted for 13 hours) and questioning us to have let us know at the beginning that we were not under arrest and that we could remain silent. I was not under the impression that I had any rights at all at the time. I told them everything that they wanted to know. Since I haven't heard anything from them, I don't know yet whether the statements I gave may be used against me.

~
The money is in the treatment, not the cure.
[ Parent ]
Legal advice (5.00 / 1) (#130)
by Kintanon on Tue Nov 26, 2002 at 02:32:42 PM EST

I've been around lawyers almost all of my life since my mom was a paralegal.
When asked about situations like this I was told that I should repeatedly ask, "Am I free to go?" And if they say no, ask "Am I under arrest?", if they still say no get up and try to leave. If they stop me, repeat the questions. Just do that repeatedly, interspersed with requests that I be allowed to contact my lawyer.
And for anyone who will try to tell you, "If you haven't done anything wrong you have nothing to fear." That's BULLSHIT. If the cops have brought you in they are no ASSUMING that you are guilty and they just haven't found what it is you did yet. So they will drill you, use dirty tricks, try to get you in a mental state where you will agree to anything just to get away from them. And even if they just decide to hold you overnight or something that's a SERIOUSLY inconveniencing situation. Imagine calling your boss up and saying, "I can't come in to work today, I'm in JAIL."

Kintanon

[ Parent ]

If that had been the case.. (5.00 / 2) (#132)
by vile on Tue Nov 26, 2002 at 03:03:45 PM EST

If I had to call a boss and report that I was in jail over honest to god bullshit, I would be suing them right now. The only reason I am not is because a) I don't want to deal with the bullshit that they would try to swing back and b) It's not worth my time. And, I am swaying on the b part. I've been wondering whether or not I should pursue law suits over this.. but in the end, I think I'll just forget about it. People were doing their jobs.. although done wrongly, I'm not going to bitch about that. It's done with.

But, in response to your statement of questioning the officers continuously and prompting them for responses, yes, that is what I should have done and will retain the thought for future use.. thanks.. I'll make sure I'm around more officers and witnesses as well. Hopefully, I won't have to use it. It sets even more precedent for unlawful imprisonment and questioning (there was nothing on the *search* warrant allowing them to question me, especially in a containment-oriented experience) than what I experienced.

~
The money is in the treatment, not the cure.
[ Parent ]
That's great advice. (5.00 / 2) (#135)
by mindstrm on Tue Nov 26, 2002 at 05:35:14 PM EST

I recall reading somewhere a list of questions on how to deal with police. Obviosly it might not save you from a beating if they are THOSE kinds of cops.. but it's something like this.

If they ask you a question, ask if the answer is voluntary or mandatory. If it's voluntary, refuse to answer.  
If they ask if it's okay to come into the house, same thing. Ask if you are required by law to let them in. If they say no, the politely say now.

If they are in your house, tape record everything. Tell them bluntly you are going to tape record everything. This is your right. Don't fight, don't yell, and don't turn into a raving maniac when they take your tape recorder away or refuse to answer your questions. Just make sure you ask your questions clearly and precisely, and preferably with others present. It may not save you from having your house ripped apart, but it WILL help you bigtime in court when several people recall you very clearly asking things like "Am I under arrest? " "Can I have a lawyer please" or having a cop tell you you are required to do something you are not. It shows that YOU cooperated fully within the law, and the COPS did something wrong.


[ Parent ]

Advice? (1.00 / 1) (#142)
by gibichung on Tue Nov 26, 2002 at 06:20:18 PM EST

...for criminals? Why is such an adversary attitude necessary?
If they ask you a question, ask if the answer is voluntary or mandatory. If it's voluntary, refuse to answer.
If they ask you a question, answer fully and to the best of your knowledge. If the answer will incriminate you and you do not wish to accept responsibility, decline to answer. It's your right.
If they ask if it's okay to come into the house, same thing. Ask if you are required by law to let them in. If they say no, the politely say now.
An officer won't ask to come into your home to interrogate you; there's such a thing as "home field advantage" and they'll always want it for an interrogation. If an officer wishes to enter your home to take a statement, you can almost be certain that you are not a target of an investigation. Interviewing witnesses at home makes them feel more comfortable and safe.

If an officer has come to your home with an arrest warrant, he may conduct a search of your immediate area incident to arrest, and depending on the circumstances, may insure that your home is free of accomplices.

If you have nothing to hide, by all means consent to allowing the officer into your home. This isn't permission to search, but beware that anything illegal or incriminating in "plain view" may be grounds for a full search, and may be used against you. If you agree to let him search, you can always ask him to stop at any time. He won't tear your house apart. A little cooperation can help the police to focus their investigations away from you and hopefully toward the real culprits.

Just make sure you ask your questions clearly and precisely, and preferably with others present.
Officers don't seperate witnesses to put them at a disadvantage. Collaboration between witnesses tends to produce a concensus which is less accurate than one taken from a number of individual perspectives. Do feel free ask questions of the officers; if you do so politely and respectfully, you'll be better able to assist in their investigation.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Ignorance of the law, maybe? (4.50 / 2) (#145)
by rantweasel on Tue Nov 26, 2002 at 07:01:29 PM EST

If the cops aren't saying what they think you did wrong, how do you know if you did indeed do something wrong?  Maybe you violated a law you were not aware of, and since ignorance is not a defense, you might be better off keeping your mouth shut.  

mathias

[ Parent ]

Perfectly said. n/t (none / 0) (#153)
by vile on Tue Nov 26, 2002 at 08:25:06 PM EST



~
The money is in the treatment, not the cure.
[ Parent ]
Assisting Investigation (5.00 / 1) (#155)
by vile on Tue Nov 26, 2002 at 08:28:48 PM EST

When the cops raided my home, they were not let in, they busted in. We were asleep. They pulled my roommate's girlfriend out of bed naked. There were no female cops present. They did this at 9 in the morning.

I attempted to cooperate as much as possible. I was told that I was lying. I was not. I was half asleep while I was being questioned. I was half naked, and was refused clothing when I asked for it. I was in front of my neighbors.

My home was stormed and ripped apart over a fucking camp fire. You expect me to respect the officers that did this? Get a fucking life.

~
The money is in the treatment, not the cure.
[ Parent ]
A search warrant (none / 0) (#159)
by gibichung on Tue Nov 26, 2002 at 08:52:21 PM EST

is not issued without probable cause. If you are responsible for the circumstances which constitute probable cause, it is seen "your fault," and the state isn't required to compensate you if you they damage your property while conducting a reasonable search.

This is the same principle which prevents every defendant brought to trial who is acquitted from demanding compensation.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]

Haven't (none / 0) (#160)
by vile on Tue Nov 26, 2002 at 09:13:26 PM EST

asked for damage to the home. I do see this as an infringement of certain rights which I retain, though. Whether I go to court over it depends on whether or not I am prosecuted for 'unlawful burning', which is what this is over. This was over a campfire, out in the middle of nowhere, on government land, and bored cops. No property was damaged, other than the property being taken from me (which I consider damaged), but I was harmed emotionally and this is provable in a court of law. I will win if I take this to court. I have enough evidence and could also strike down the probable cause given for the search warrant, but, other than ranting about it.. I'm done with it.

~
The money is in the treatment, not the cure.
[ Parent ]
Additionally.. (none / 0) (#161)
by vile on Tue Nov 26, 2002 at 09:18:21 PM EST

.. you would totally feel different to all of the issues that you are raising if this happened to you. I have considered going to court to help prevent this from happening to others.

~
The money is in the treatment, not the cure.
[ Parent ]
Never just talk (5.00 / 1) (#169)
by Quila on Wed Nov 27, 2002 at 08:42:50 AM EST

A good example was an officer in the military. In questioning persuant to an investigation the CID (criminal investigation division) was doing, he was being asked questions. During the interview, it slipped that he had a mistress. Oops, adultery is punishable under the Uniform Code of Military Justice.

[ Parent ]
My goodness (5.00 / 2) (#174)
by lb008d on Wed Nov 27, 2002 at 03:36:00 PM EST

It sounds like you're all too willing to bend over for the cops.

This is the worst advice you give:

If you have nothing to hide, by all means consent to allowing the officer into your home.

Wrong wrong wrong wrong. If you feel like you must talk to  the cop, go outside to the street, which is public property and only give basic info. Don't say anything uncomfortable without a lawyer. Even if you have nothing to hide allowing a cop into the house only furthers the police state mentality many citizens and officers share.

"Kuro5hin: politics and pretension, from the $3,000 leather recliners on the hill overlooking the trenches."DarkZero
[ Parent ]

Oh.. (5.00 / 1) (#178)
by mindstrm on Wed Nov 27, 2002 at 05:30:35 PM EST

So if you have nothing to hide, who cares what big brother does?

Sorry.. YOU do not have all the facts in this situation.

The point is not to keep quiet, but to ensure that if they force you to talk, they do so appropriately, not by "lying" or "misrepresenting" their authority.

If they tell you in front of witnesses, even a bunch of other cops, that you MUST talk, and it turns out in court that they did not have that right.. that works in your favor.

[ Parent ]

There they go (1.50 / 2) (#134)
by artsygeek on Tue Nov 26, 2002 at 03:24:46 PM EST

They're slithering toward Gomorrah....
And the American people are shrugging toward Gomorrah.

Martinez should win (5.00 / 1) (#150)
by rantweasel on Tue Nov 26, 2002 at 08:10:32 PM EST

Reading Olson's amicus brief, I'm shocked that the DoJ is even bothering.  The claims rest upon seriously faulty ground.  First, that the officer was trying to preserve evidence (ie, testimony from a dying man) - as gibichung pointed out in another thread, if Martinez had died, he wouldn't have been charged with anything, so why not wait until he was no longer on the brink?  Second, for all of the discussion of the 5th Amendment and Miranda, there are the 14th Amendment arguments that Oxnard & the DoJ cannot possibly win.  To quote from Cooper v Dupnik, "The due process violation caused by coercive behavior of law-enforcement officers is complete with the coercive behavior itself... The actual use or attempted use of that coerced statement in a court of law is not necessary to complete the affront to the Constitution"  In order for a 14th Amendment violation to exist, a reasonable officer would have to know that his/her behavior was violative.  Given that Martinez asked the officer to stop, the doctors asked the officer to leave, and that the circumstances of Mincey v Arizona were nearly identical and the behavior of those officers was found to be violative, I'd say it's fairly reasonable.  The brief states "...the Fourteenth Amendment only prohibits police practices that are 'so brutal and so offensive to human dignity'," and it is clear from this discussion that people find Chavez's behavior brutal and offensive, regardless of it's constitutionality.  Olson argues that there is "no legal basis for establishing such a broad substantive due process 'right to silence'," but he is willfully ignoring both the 5th and 14th Amendment due process clauses.  The Miranda case itself established a right to keep one's trap shut during custodial interrogation, and although the 5th Amendment does allow coerced testimony in some cases, it also requires due process in that coercion.  Olson invokes the public safety exception to the 14th Amendment's due process clause, yet he fails to point out who, other than Martinez, was in danger in the emergency room.  

Oxnard and the DoJ may present a convincing 5th Amendment argument, but there is no reason that the Supreme Court must rule on the 5th Amendment elements at all.  I think we might see a court ruling that either affirms Miranda or ignores the 5th Amendment claims and follows along the lines of Mincey v Arizona.

mathias

Where to start? (none / 0) (#156)
by gibichung on Tue Nov 26, 2002 at 08:33:23 PM EST

First, that the officer was trying to preserve evidence (ie, testimony from a dying man) - as gibichung pointed out in another thread, if Martinez had died, he wouldn't have been charged with anything, so why not wait until he was no longer on the brink?
Because a dying declaration can be used as evidence, even though it is hearsay. If he'd said "Joe Smith told me not to be taken alive while coming back from delivering his drugs," it would have been admissiable even if he did not actually die. Miranda or no Miranda, this statement could have been used against the hypothetical Mr. Smith.
The Miranda case itself established a right to keep one's trap shut during custodial interrogation, and although the 5th Amendment does allow coerced testimony in some cases, it also requires due process in that coercion.
The Miranda case works on several assumptions:
  1. A statement made by a defendant who does not know his rights is inherently involuntary.
  2. A statement made involuntarily must be legally presumed to have been "coerced."
Miranda has nothing to do with a right to remain silent; it is a right to be made aware of your rights so that a statement may be proven to have been made voluntarily. Thus your arguments based on your conclusion about "coercion" are following the wrong standard and are irrelevant.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
[ Parent ]
Again, the 14th (none / 0) (#166)
by rantweasel on Wed Nov 27, 2002 at 12:47:36 AM EST

As I stated, even if there is a convincing 5th Amendment argument for Oxnard, they will lose on the 14th.  I don't buy your first argument - the officer was asking about the shooting, not about possible drug deliveries.  That is only relevant to a case against Martinez, which takes us back to the fact that he wasn't Mirandized.  As for your argument about Miranda having nothing to do with a right to remain silent - the case did not provide the right, but it quite clearly highlights that the right itself is there.  The court didn't make it up out of thin air.  Given that Oxnard hasn't been ruled upon, the officers shouldn't act otherwise.  The officer had no way of knowing if charges would be pressed or not when he was questioning Martinez.  The fact that Oxnard is claiming that the lack of charges excuses everything doesn't change the fact that under their argument his rights weren't violated only because he was innocent.  That's shady and dishonest at best, and certainly far from the spirit of the 5th and 14th Amendments, if not the letter.

mathias

[ Parent ]

Who says the evidence was against the man? (none / 0) (#170)
by porkchop_d_clown on Wed Nov 27, 2002 at 09:30:37 AM EST

What if he died and there was no one to dispute what the other cops claimed happened?

It seems to me that the seargent did have a responsibility to try to get a statement from the guy in case he died.

If Martinez had made a statement that led to charges against the two cops that statement would have been admissable. Miranda only applies to incriminating yourself, not incriminating others.


--
Once one sock is sucked, the other sock will remain forever unsucked.


[ Parent ]

Point taken (none / 0) (#177)
by rantweasel on Wed Nov 27, 2002 at 04:36:43 PM EST

That means that Oxnard probably has a convincing argument with regards to the 5th Amendment.  I remain unconvinced that they can convince the justices on the 14th Amendment issues, though.

mathias

[ Parent ]

Bad journalism (4.75 / 4) (#152)
by gibichung on Tue Nov 26, 2002 at 08:20:37 PM EST

From the LA Times article.
When the officer patted him down and grabbed for the knife, Martinez tried to run. Salinas tackled him and tried to handcuff him. As they struggled on the ground, the officer called out that the man had a huge knife. Pena moved closer and fired.
And:
Lawyers for Martinez say he panicked when the officer tried to tackle him, but they say he did not grab the officer's gun.
However, the brief (thanks chrswill.) states:
It is undisputed, however, that Officer Salinas shouted "[h]e's got my gun."
and:
Respondent said that he had "pulled the gun" from Salinas' holster (J.A. 13) and "pointed it" at the police.
That's some omission. This case of bad journalism has propogated quite a bit of the irrational and dangerous attitudes I warned about in another comment.

-----
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it." -- Theodore Roosevelt
You are practicing selective quotation (5.00 / 2) (#164)
by Arthur Treacher on Tue Nov 26, 2002 at 10:58:19 PM EST

From the source you quote:
During a protective pat-down, Officer Salinas discovered a knife in respondent's waistband. Pet. App. 3a; C.A. App. 121. Salinas notified Pena and pulled respondent's hands from behind his head to place him in handcuffs. Salinas maintains that respondent attempted to flee; respondent claims that he offered no resistance and Salinas tackled him without provocation. A struggle ensued. Officers Salinas and Pena testified that respondent drew Salinas' pistol and pointed it at them (see C.A. App. 68- 71, 183-185); respondent alleges that he grabbed Salinas' hand to stop him as he drew his pistol from its holster. Id. at 85. It is undisputed, however, that Officer Salinas shouted "[h]e's got my gun."

Emphasis mine.  Later, while Martinez is in the emergency room:

Petitioner identified himself as a policeman and asked respondent to "tell [him] what happened." J.A. 9. Respondent answered that he had "fought" with the police but did not know why they had fought. Petitioner asked respondent whether he had "grab[bed] the gun of the other policeman." J.A. 9-10. Respondent said that he had "pulled the gun" from Salinas' holster (J.A. 13) and "pointed it" at the police. J.A. 14. Respondent complained repeatedly about pain, e.g., J.A. 8, 16, 17, 18, said that he wanted treatment, J.A. 12, 13, 17, 18, and stated several times that he believed he was dying. J.A. 7, 8, 9, 11, 12, 19. In the middle of the interview, respondent said "I am not telling you anything until they treat me." J.A. 12. Petitioner responded that medical personnel were treating respondent and he wanted to get respondent's side of the story so he did not have to rely solely on Salinas' and Pena's description of events. J.A. 13. When respondent later said "I don't want to say anything anymore" (J.A. 17), petitioner asked respondent if he thought he was going to die (J.A. 18), assured him "the doctors are going to help you with all they can do" (J.A. 19), and ended the interview. Ibid. Near the end of the interview, respondent said that he had been drinking that day and had used heroin that evening. J.A. 15-16. It is undisputed that petitioner did not recite Miranda warnings. C.A. App. 113. Respondent has not been charged with any crime stemming from the incident.

"As they struggled on the ground, the officer called out that the man had a huge knife." was from from the LA Times article I linked to.  Blame the writer of that article if you like.  

The central thesis of my story is unchanged.

"Henry Ford is more or less history" - Bunk
[ Parent ]

Sad, but inevitable (4.00 / 2) (#172)
by jd on Wed Nov 27, 2002 at 12:43:42 PM EST

We live in a society where "results" matter, and the methods aren't looked at too closely. The end "does" justify the means, in such an environment. It cannot do otherwise.

IMHO, it's rough to condemn the cops for simply choosing to survive in such a system. They're human, and one of the strongest human instincts is that of survival, whether that's of their life or their career.

That doesn't mean I think the cops were "right". What it does mean is that we should avoid pointing fingers at individuals low down the pecking-order, at least at this stage.

If the walls of a house are cracking, do you blame the walls or fix the foundations?

Lame excuse (none / 0) (#182)
by medusa on Thu Nov 28, 2002 at 02:07:43 PM EST

Here, in the big city of Toronto, cops' salary averages around $80k. Teachers' salary goes for $35k or so. So you're saying in order to survive (and keep their $80k salary), they still need to beat up people for nothing?

I have seen cops and riots cops up close and a lot of them have the typical mentality (and intelligence) of normal high-school bullies. But that's what needed to keep the system: high salary with low logics.

Try going to some third-world countries, where some people *are* trying to *survive*. And the survival method doesn't include beating up people.



[ Parent ]
As soon as I read this headline (none / 0) (#189)
by Scratch o matic on Mon Dec 02, 2002 at 11:31:20 PM EST

I knew that a bunch of asshats would leap to the inevitable "legalized torture" hysteria. I clicked to the comments and searched for "torture." You did not disappoint.

Get a frickin' clue, asshats. Do any of you who used the word "torture" in your posts have the slightest idea what this case is about? Hint: torture will still be illegal regardless of the ruling, and "confessions" obtained through torture will still be worthless.

Bush administration pushes for repeal of Miranda law | 190 comments (178 topical, 12 editorial, 0 hidden)
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