6 ms·

The public safety exception strikes me as equivalent to the enemy combatant exception - a way to just skirt civil liberties when it seems relevant.

anigbrowl 14y ago
For heaven's sake. Assuming that they have arrested the correct person, he and his brother had a stack of tactical explosives that they were throwing around with abandon, as well as having bombed a major public event with loss of life and a huge level of injury. Of course the public (via its designated law enforcement agents) has a legitimate interest in establishing whether all possible explosive devices have been found and neutralized. Bear in mind that for his trial (if he doesn't plead guilty) they'll have victim witness testimony from a person who says he saw the suspect perform a bag drop shortly before the bag exploded and blew his legs off; abundant photographic evidence, with probably more to come; whatever forensic evidence they found at the brothers' shared home; and all sorts of other information gathered in the days before he was found and captured. There'll be camera footage from the 7-11 that they held up, testimony from the person they carjacked (to whom they apparently admitted that they were the bombers), forensic evidence from the car, vast amounts of ballistics evidence...I could go on and on. There is no way that his conviction is going to be pendant on what he says before being mirandized, and the public safety exception is about as justified here as it could ever possibly be - far more so than that in Quarles. That was a guy who allegedly had had a gun and was wearing an empty holster when caught. True, abandoned guns can be dangerous. A bumper variety pack of bombs, which it appears this suspect had and employed on multiple occasions in the last few days, presents a substantially greater risk to public safety.
- m_d 14y ago
  Assuming that they have arrested the correct person This is not something that you get to assume. https://en.wikipedia.org/wiki/Due_Process_Clause https://en.wikipedia.org/wiki/Due_Process_Clause
  - Goladus 14y ago
    To be fair, this was probably just a matter of phrasing on his part. Instead of using the word "assume" (triggering a pithy response) he should have stated this: If the man the police have arrested is indeed Dzhokhar Tsarnaev, the man implicated in the bombings...
  - Steuard 14y ago
    The previous poster didn't say "We can assume they have arrested the correct person", they said (in effect), "If we assume for the sake of argument that they have arrested the correct person". Your point is absolutely valid, but entirely separate from this discussion of Miranda.
  - anigbrowl 14y ago
    I'm assuming it only for the purposes of making my argument here on HN, not for determining the guy's guilt or innocence. I have to make some assumptions because I haven't seen any photographs or any evidence myself, so I have only a 3rd hand opinion based on news reports. The people who arrested him, by contrast, are in a position to identify him as the person they saw shooting at them earlier. If I was sure they had arrested the right guy and that he was guilty of all those things, I wouldn't have put the 'assuming...' in there at all, but just stated what came after as fact.
- guelo 14y ago
  Imagine that the guy knows his Miranda rights, refuses to talk and demands a lawyer. The unsaid implication of the supposed public-safety exception is that the police will do anything to get the guy to talk, constitution be damned.
  - anigbrowl 14y ago
    No it isn't, because it would be a huge gift to the defense counsel who would rightly attack any infringement of his civil liberties (eg if they beat him up or worse). I've heard Alan Dershowitz make such 'ticking time bomb => anything goes' arguments but I think they're fatally flawed, both legally and logically.
- mcantelon 14y ago
  >There'll be camera footage from the 7-11 that they held up They didn't hold up the 7-11. http://www.wbur.org/2013/04/15/live-blog-multiple-explosions-at-boston-marathon-finish-line#police-suspects-did-not-rob-convenience-store http://www.wbur.org/2013/04/15/live-blog-multiple-explosions...
  - anigbrowl 14y ago
    Thanks for the clarification, I missed that update.
- swalkergibson 14y ago
  Innocent until proven guilty. The adversarial justice system in the United States is here for all of our protection, including suspected terrorists.
  - anigbrowl 14y ago
    How is that at odds with anything I've written above?
pyre 14y ago
| a way to just skirt civil liberties when | it seems relevant That's exactly what it is, with good reason. When this is used, we are saying that the rights of others trump the rights of this suspect. When we're talking about the possibility of active bombs hidden within a civilian population, I would think it's a no-brainer that the rights of the people to not be blown up trumps the suspect's rights. Also, as @anigbrowl says, this isn't going to be a case where the majority of evidence comes from the suspect's Miranda-less statements. Edit: I will admit that this could hurt the suspect's eventual defense. Even if the statements aren't necessary to the prosecution's case, making them admissible in court could limit explanations put forth by the defendant.
- baddox 14y ago
  If it's as simple as saying "the rights of others trump the rights of this suspect," then why not torture the suspect?
  - pyre 14y ago
    Because we, as a society, frown on it? Are you really saying that there is a thin line between Miranda-less statements being admissible in court and torture?
  - anigbrowl 14y ago
    Because it's not simple. There are interests to be balanced and you can bet that defense counsel will challenge that decision pre-trial, at trial, and at appeal - and rightly so, it's not something that should be used with impunity. Although creative writers love to put law enforcement characters on the horns of dilemmas like this because it makes for great drama, in real life the PIE does not get invoked that often because law enforcement doesn't want to risk blowing a case on it. Here, we're not balancing the public interest against all the rights of the suspect, but against his right to given notice of his legal situation. He could still clam up, ask for a lawyer, have one provided for him if he can't hire one etc., but the difference is that they're entitled under the PIE to ask him for information about outstanding risk factors (and only that) instead of giving him an advisory. I'm guessing a bit here, but I have a hunch that if he said 'look, I set off those bombs on Monday, I feel terrible...' the interrogating officer would actually respond by saying 'we can discuss that later, now I just want to know about whether there are other bombs or weapons,' both because that's the actual priority and to avoid later legal challenges to do with 'fruits of the poisonous tree,' a colloquial term for improperly acquired evidence.
rayiner 14y ago
Civil liberties under the constitution are by and large not ironclad protections. Their scope has always been full of exceptions, because they date back to the privileges of englishman, as decided by common law courts. It has always involved a balancing between the exigencies of the situation, the need for an effective police, and the protection of the accused. They're not ways of skirting civil liberties. They are ways of defining the contours of their protections.

anigbrowl 14y ago

For heaven's sake. Assuming that they have arrested the correct person, he and his brother had a stack of tactical explosives that they were throwing around with abandon, as well as having bombed a major public event with loss of life and a huge level of injury. Of course the public (via its designated law enforcement agents) has a legitimate interest in establishing whether all possible explosive devices have been found and neutralized. Bear in mind that for his trial (if he doesn't plead guilty) they'll have victim witness testimony from a person who says he saw the suspect perform a bag drop shortly before the bag exploded and blew his legs off; abundant photographic evidence, with probably more to come; whatever forensic evidence they found at the brothers' shared home; and all sorts of other information gathered in the days before he was found and captured. There'll be camera footage from the 7-11 that they held up, testimony from the person they carjacked (to whom they apparently admitted that they were the bombers), forensic evidence from the car, vast amounts of ballistics evidence...I could go on and on. There is no way that his conviction is going to be pendant on what he says before being mirandized, and the public safety exception is about as justified here as it could ever possibly be - far more so than that in Quarles. That was a guy who allegedly had had a gun and was wearing an empty holster when caught. True, abandoned guns can be dangerous. A bumper variety pack of bombs, which it appears this suspect had and employed on multiple occasions in the last few days, presents a substantially greater risk to public safety.

m_d 14y ago
Assuming that they have arrested the correct person This is not something that you get to assume. https://en.wikipedia.org/wiki/Due_Process_Clause https://en.wikipedia.org/wiki/Due_Process_Clause
- Goladus 14y ago
  To be fair, this was probably just a matter of phrasing on his part. Instead of using the word "assume" (triggering a pithy response) he should have stated this: If the man the police have arrested is indeed Dzhokhar Tsarnaev, the man implicated in the bombings...
- Steuard 14y ago
  The previous poster didn't say "We can assume they have arrested the correct person", they said (in effect), "If we assume for the sake of argument that they have arrested the correct person". Your point is absolutely valid, but entirely separate from this discussion of Miranda.
- anigbrowl 14y ago
  I'm assuming it only for the purposes of making my argument here on HN, not for determining the guy's guilt or innocence. I have to make some assumptions because I haven't seen any photographs or any evidence myself, so I have only a 3rd hand opinion based on news reports. The people who arrested him, by contrast, are in a position to identify him as the person they saw shooting at them earlier. If I was sure they had arrested the right guy and that he was guilty of all those things, I wouldn't have put the 'assuming...' in there at all, but just stated what came after as fact.
guelo 14y ago
Imagine that the guy knows his Miranda rights, refuses to talk and demands a lawyer. The unsaid implication of the supposed public-safety exception is that the police will do anything to get the guy to talk, constitution be damned.
- anigbrowl 14y ago
  No it isn't, because it would be a huge gift to the defense counsel who would rightly attack any infringement of his civil liberties (eg if they beat him up or worse). I've heard Alan Dershowitz make such 'ticking time bomb => anything goes' arguments but I think they're fatally flawed, both legally and logically.
mcantelon 14y ago
>There'll be camera footage from the 7-11 that they held up They didn't hold up the 7-11. http://www.wbur.org/2013/04/15/live-blog-multiple-explosions-at-boston-marathon-finish-line#police-suspects-did-not-rob-convenience-store http://www.wbur.org/2013/04/15/live-blog-multiple-explosions...
- anigbrowl 14y ago
  Thanks for the clarification, I missed that update.
swalkergibson 14y ago
Innocent until proven guilty. The adversarial justice system in the United States is here for all of our protection, including suspected terrorists.
- anigbrowl 14y ago
  How is that at odds with anything I've written above?

pyre 14y ago

| a way to just skirt civil liberties when | it seems relevant That's exactly what it is, with good reason. When this is used, we are saying that the rights of others trump the rights of this suspect. When we're talking about the possibility of active bombs hidden within a civilian population, I would think it's a no-brainer that the rights of the people to not be blown up trumps the suspect's rights. Also, as @anigbrowl says, this isn't going to be a case where the majority of evidence comes from the suspect's Miranda-less statements. Edit: I will admit that this could hurt the suspect's eventual defense. Even if the statements aren't necessary to the prosecution's case, making them admissible in court could limit explanations put forth by the defendant.

baddox 14y ago
If it's as simple as saying "the rights of others trump the rights of this suspect," then why not torture the suspect?
- pyre 14y ago
  Because we, as a society, frown on it? Are you really saying that there is a thin line between Miranda-less statements being admissible in court and torture?
- anigbrowl 14y ago
  Because it's not simple. There are interests to be balanced and you can bet that defense counsel will challenge that decision pre-trial, at trial, and at appeal - and rightly so, it's not something that should be used with impunity. Although creative writers love to put law enforcement characters on the horns of dilemmas like this because it makes for great drama, in real life the PIE does not get invoked that often because law enforcement doesn't want to risk blowing a case on it. Here, we're not balancing the public interest against all the rights of the suspect, but against his right to given notice of his legal situation. He could still clam up, ask for a lawyer, have one provided for him if he can't hire one etc., but the difference is that they're entitled under the PIE to ask him for information about outstanding risk factors (and only that) instead of giving him an advisory. I'm guessing a bit here, but I have a hunch that if he said 'look, I set off those bombs on Monday, I feel terrible...' the interrogating officer would actually respond by saying 'we can discuss that later, now I just want to know about whether there are other bombs or weapons,' both because that's the actual priority and to avoid later legal challenges to do with 'fruits of the poisonous tree,' a colloquial term for improperly acquired evidence.

rayiner 14y ago

Civil liberties under the constitution are by and large not ironclad protections. Their scope has always been full of exceptions, because they date back to the privileges of englishman, as decided by common law courts. It has always involved a balancing between the exigencies of the situation, the need for an effective police, and the protection of the accused. They're not ways of skirting civil liberties. They are ways of defining the contours of their protections.