These are the times that test us. Will we prove ourselves worthy?
No one can dismiss that efforts of law enforcement in the capture of alleged Boston Marathon Bomber, murderer of 26-year-old MIT campus police officer Sean Collier, Dzhokhar Tsarnaev. They resisted the opportunity of killing him in a hail of return gunfire and took him alive. Such patience is unfortunately rare, and to be recognized.
What becomes of him now? There are angry people who want him to hang high now, while others want to try him first and then hang him high. But just as the media, and even bloggers who claim to be the savior of the poor and downtrodden, in a rush to be the first to play the fool in the ether, were busy spreading insanely baseless accusations and misinformation without the shame to concern themselves with who they hurt, explanations of the process to come will feed the public’s ignorance and leave them less knowledgeable than they were when they knew nothing.
Within the past 24 hours, a few legal issues arose for public discussion. The first was the authority of the police to conduct warrantless and unconsented house searches to look for Tsarnaev. Orin Kerr began an analysis of the legality:
Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.
Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois , 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.
This seems fine as far as it goes; it provides a stark reminder of the inadequacies of the remedies for Fourth Amendment violations. People believe that they are safe from the police performing a “dynamic entry” into their homes. “You can’t just burst in here! It’s against the law.” And indeed, it is, except so what? There is truly little to be done about it. Forget about Tsarnaev, who would have no standing to suppress in any event, but what of the homeowner?
The chants of “sue them” from the tin foil hat crowd perpetuate the silliness. Sue them for what? Even under §1983, recovery is based on damages. There are no damages. So a right without a remedy, a right ignored, is no right. The police understand this, that there is nothing to be done about it.
The harder question is what would happen if the police, entering a home with neither warrant nor consent in search of Tsarnaev, shot the family dog, found cocaine on the kitchen table, pumped a dozen bullets through the bathroom door when grandma couldn’t get off the throne to open it quickly enough? The rules we make for a search for Tsarnaev that everyone appreciate so very much, would still apply unchanged. It may have seemed perfectly reasonable to allow the police to have their way in order to find this baby terrorist, but the rules don’t change when grandma is lying dead on the cold, hard tile floor.
The second issue that arose is the decision to interrogate Tsarnaev without providing Miranda warnings. Granted, Tsarnaev was likely aware of the warnings, but the law doesn’t rely on a legal advice from television. Explanations of the lawfulness of this are coming from a variety of sources, most focusing on the public safety exception of New York v. Quarles, which I’ve previously discussed. After all, Tsarnaev is being questioned by the “High Value Interrogation Group,” which suggests that there is no price they won’t pay for whatever information they can extract from this teen.
The public safety exception is very reminiscent of that wonderful TV show “24,” where Jack Bauer would cut off body parts of detainees to learn the whereabouts of a nuclear bomb about to destroy Los Angeles. That’s a pretty imminent threat. The argument for its application to Tsarnaev is whether he is part of a larger, as yet unknown, group about to pose similar harm. There is no reason to think so, and ignorance has always proven the broadest justification for enjoying an exception to constitutional protections.
But the missing link is that if they don’t need Tsarneav’s statements to convict him, then Quarles doesn’t matter anyway. The only point to Quarles it that it excepts the omission of Miranda warnings for public safety. The only remedy for failure to give Miranda warnings is suppression of statements. If they aren’t needed, interrogate away. No big deal.
Of course, there is the broader concern about whether the most hated person in America, at least this week, is afforded constitutional rights, but we’re an outcome oriented people and are happy to blink when Mr. Korematsu is imprisoned just to be safe. The tacit sense that permeates Americans’ psyche is that some vague war is back, turning our streets into the battlefield, which changes everything.
We were moving beyond the remnants of 9/11 fear, returning to the normalcy of a constitutional democracy where irrational fear was inadequate to push us to embrace overriding our rights for our own good, and now carnage on Boyleston Street has given fear new life. And there is little the law can or will do to stop it. The remedies it offers are of little consequence, even if granted occasionally, and nothing drives this home better than a person who committed an atrocity.
Do not think that the people of America will concern themselves with all this legal noise. They can’t hear the discussion of constitutional rights over all the applause for the excellent work of law enforcement keeping us safe from the terrorists. Even if they could, it’s just gibberish in a nation whose motto is the ends justify the means.
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You really should put up some kind of “like” button.
> They resisted the opportunity of killing him in a hail of return gunfire and took him alive. Such patience is unfortunately rare, and to be recognized.
The FBI Hostage Rescue Team did the collar; there’s no way a bunch of Boston cops would have resisted the temptation to murder him.
Great piece. I especially appreciate your attention to the Fourth Amendment issues, which aren’t as sexy as the Miranda rights. Given, as you point out, that there is no real remedy for Fourth Amendment violations of this type, do you have a recommendation or call-to-action? What can or should be done, in your view, to correct that?
There are no simple solutions. The past 100 years have been spent crafting exceptions to the Bill of Rights so that government can more effectively perform certain functions at the expense of an inconvenient reservation of rights. That doesn’t get undone overnight.
Where do we start? Do we begin with judicial sanctions or legislative structures? Or does it begin with a more generally civil response? Do we need to start with a citizenry less approving of this type of craftsmanship, and willing to levy peer pressure on a population-scale in order to bring transgressors into line?
If we’re waiting on that, I fear for future.
I don’t know that it matters as much where we begin as that we begin. My way of beginning is to try to illuminate as much as I can, but until people care, no message will sink in.
I couldn’t have said it better than Obama: “All in all it’s been a tough week, but we’ve seen the character of our country once more.”
Sadly, though, he intended it as a compliment.
Certain functions like convicting people, right? It’s not going to get undone unless there is a sea change of attitude, as few care about anyone they don’t know personally. Even Warren may well not have invoked an exclusionary rule if he could have counted on misbehaving cops being punished.
I have thought that Team Obama may want to have this fellow Mirandized, but may want to avoid the political price for having just decided to do so on its own – echoing a former president who allegedly said something like “I want to do this, now help me do this by making me do this.”
This way, they can look “tough”, but actually get to use any information this fellow provides. Just a hypothesis and nothing more.
He was being bullied by Lindsey Graham. Few people know this, but they are third cousins.
Nice post.
Given the hollowing out of Miranda’s vaunted protections, the debate over whether to give Mr. Tsarnaev Miranda warnings seems mostly about symbol not substance. You point out the limited protections Miranda provides. Even if a court were to hold that officers exceeded the limits of the public safety exception, an unwarned statement is excluded but physical evidence obtained as a result is admitted. So is the testimony of other witnesses learned about through the unwarned interrogation. The public sees Miranda as providing strong safeguards, but the truth is different. It seems to me that the debate over whether to give warnings is a code for the larger public debate over whether to afford him the rights we give to ordinary suspects, or whether we somehow whisk him away to some black hole, apart from our system. Miranda is just the most recognized symbol of criminal justice for many members of the public. It really doesn’t deserve to be such a symbol.
You’re right to say that the gov’t may not need any of his statements to convict. It may be that there is plenty of evidence to convict him for the killing of Officer Collier in state court, and for any state or federal offenses arising from the bombings. This is putting the cart in front of a whole lot of horses, but–apart from security, intelligence, and use against others — there is one a place where his statements might be more important in a criminal prosecution. If he is prosecuted for a capital offense by the federal gov’t, it may be that any statements would be important at a penalty phase, should it come to that. Just as some are now calling for Mr. Tsarnaev to be treated as a terrorist, and removed from the criminal justice system, I’d expect there to be calls for the gov’t to seek the death penalty assuming that criminal prosecution is initiated. That’d have to be part of a federal prosecution, since Massachusetts does not have capital punishment.
I’m glad you bought up the 4th amendment aspect. One thing I am not seeing addressed in the media or elsewhere is the door to door searches. Specific to the situation in Boston or any situation where police are attempting to track down a criminal but have no specific proof they have entered a specific property . . . .
What happens if someone refuses entry and search of their property?
What happens if they don’t even answer the door?
What happens if it appears their residence is unoccupied and they don’t answer the door?
It seems to me that people should be asking these questions and should be concerned if they don’t get answers.
If they really push, they can punish for each of the three deaths at the Boston Marathon Since they obviously can’t put him to death thrice, then can execute him for the first one and just give the dead body a hard kick for the next two. Or perhaps in state court, they can punish him for Officer Collier’s death by life plus cancer for aggravating factors.
Somehow, it will still prove insufficient, so it too doesn’t really matter.
How are overlapping jurisdictions dealt with when state and federal agencies are collaborating in an investigation? Who decides the governor or the county attorney or someone else? The 10th amendment was murdered a long time ago so my guess is the district attorney calls the shots.
Thanks for the post. I’ve been fighting with all my old Boston friends and law school classmates (many of whom are one in the same) about what this episode tells us about us. I think the terrorist essentially won- people freaked out and handed over the entire metropolitan area to the police- who failed to accomplish anything. Kid was found afterwards by a citizen. Could have pulled that off a lot faster if they’d just trusted the people.
Dead men can’t confess or “confess” after undergoing enhanced interrogation.
Don’t be silly. All those “like buttons” are nothing but useless pollution. Let’s not Facebookenize the entire world.
I seem to remember back in the dawn of time (well okay pre-MyTwitFaceBook ) that to actually write “I appreciate/agree/like this article” was politer, conveyed a more specific and personal experience with real feedback than a so-called “like” button..
But I’m an old, cynical curmudgeon so what do I know. I still use a paper diary instead of an electronic one
Not being American I’m probably wrong in my hypothetical here, but under your 4th and with some states having castle laws on protection of property, what would occur to someone, who isn’t shot dead by the avenging swat team, who shot an LEO after they entered the property without a warrant (ie: unlawful at face)???
Or is that a scenario that no-one ever wants to talk about?
Or as the old joke says about the guy who was asked by funeral director what to do with his Mother In-law:
Embalm, Cremate then bury – Take no chances
“Facebookenize.” Unwieldy, but good word nonetheless.
But if one writes for validation, one is likely to be sorely disappointed. If you don’t piss someone off, you probably haven’t written anything worthwhile.
There is only one state, Indiana, that expressly authorizes a homeowner to resist unlawful police force with force. But most homeowners would end up on the losing side of that argument. There isn’t much point to being right but dead.
Other than that, the Castle Doctrine does not authorize a homeowner to use force against the police. The rule is comply now, grieve later. And by “grieve,” I mean grievance, not grieve over the grave of a loved one.
I hate to get all “nice post”, but this is probably the best piece I’ve read about the subject.
Very well put, Scott.
Who are you again?
This post is predictable, but wrong. You say we have an “outcome”-oriented system – well, of course we do. You also say that sometimes as a society we are motivated by “fear” in applying our rules – well of course we are, and rightly so. (What is a better motivator than fear?) Put aside the fact that it is absurd to think that someone in this day and age isn’t aware of their Miranda “right to be silent.” And put aside the fact that this not simply a matter of conventional crime, but terrorism. Why should we care about the lack of Mirandizing if the police aren’t going to use the statements anyway – i.e., if there is overwhelming evidence of guilt? You act as though rights exist in a vacuum – that police should comply strictly with Miranda (or any right) even if there is no purpose to it under the circumstances. Under your argument that the means can never “justify the ends,” we would never have an exception to any rule – we could never search for the ticking time bomb, never search without a warrant, never do anything but follow literally a court ruling or rule of law because, after all, we don’t want to be a people governed by fear, now do we?
I guess you guys haven’t noticed, but the application of our law always changes in response to the circumstances. It’s why we treat sex offenders and drunk drivers differently than “regular” offenders; and yes, now we have to do the same with terrorists. As a society we made the decision a few decades back that we were simply not going to permit things like child pornography and sexual offenses against children; “rights” like under the First Amendment were not going to prevent us. We are now doing the same with terrorism, as we should. If you disagree with this approach, you have the burden to say why terrorism is not the unique threat the rest of us are saying it is – not take the easy way out and make clichéd-type criticism about how the “ends should not justify the means” or how we are supposedly “acting out of fear.” In the meantime, no, we’re not going to walk into this terrorist’s hospital room and discourage him from speaking.
If I didn’t have you to be the foil of rational thinking, I would have to invent you.
I’m late to the game on this, but first, I’m hurt that you mentioned Mr. Korematsu instead of my Grandpa Gordon (Hirabayashi) even after I told you you’re my first read every morning (although I guess I was just caught red-handed for not reading the last 2 mornings).
I have to question all the people(such as RP above and others I’ve heard) who say Mirandizing isn’t necessary because everyone knows their rights already. If that is truly the case, why NOT Mirandize? If the suspect already knows his or her rights, you’re not giving up any special information AND you avoid the risk of suppression. The only plausible reason law enforcement would choose not to Mirandize must be for the exact opposite reason. It is in the hope the suspect does not know his or her rights and will give them something they could not otherwise get.
[P.S. In case my sarcasm above was lost, Mr. Korematsu was a hero, his daughter is also a wonderful woman who is doing a lot of good educating students about the Japanese internment, and he deserves every ounce of recognition he gets.]
And here I was trying to avoid putting you in the awkward position of having to agree with me. I can’t win.
As my good buddy Nathan Burney noted today, Miranda is one of the greatest gifts the Supreme Court ever gave to the police. Speak the magic words and every statement comes into evidence. And people talk regardless. All the time. They can’t stop them from talking. It’s astounding.
But the point is that it’s irrelevant whether they know Miranda from TV (which means they may know the words but not necessarily the underlying concept): These are the basic rules by which our society lives. They are the rule, not an option, whether they work or not, or we like them or not. We do these things because this is how we define our society, not because they are easy or always produce the desired outcome. And thankfully, we have someone like RP here to remind us of the alternative to honoring constitutional rights. And on the other side, you, your grandpa and Mr. Korematsu.
I agree with you that the basic rules are in place specifically so they will not be violated in hard situations where our emotions might suggest we act otherwise. Rules and rights only have value if they are honoured when we don’t want to honour them; when the bad guy has done something really bad, or when to break them would feel really good. Wouldn’t life be easy if we only had to follow the rules we liked when we wanted to follow them. Isn’t that what we try to teach our kids? To choose to do the right thing even when choosing to do the right thing is the hardest choice to make? Why doesn’t it apply to the grown-ups?
I was merely responding to this logical fallacy that I’ve heard thrown around by a lot of people, including RP, that there’s no need to read people their rights because they already know their rights. Plus I seem to have become a bit of an attention-whore when it comes to bragging about my grandpa.
The protection of Miranda isn’t that we are “protected” from what we say–it’s that we’re reminded that we can keep our mouth shut, and call a lawyer. There are those who want to declare this terrorist an “enemy combatant”, even though he wasn’t on a battlefield, and even though he’s an American citizen. The idea is that once we do that, we can declare his rights null and void.
This is NOT a road I want to go down.
It’s easy to say that this person is a terrorist, and he may have gone out of the country to train for this heinous act, and that there may be more acts in the works…but one very good question to ask ourselves is “Should we do this to Timothy McVeigh?”. While what he did was horrible (indeed, more horrible than the second Boston Massacre), and perhaps even an act of war of sorts, he was still an American citizen, and thus deserved to have his rights respected.