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.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/04/20/bringing-out-the-worst-in-us.aspx?ref=rss
No comments:
Post a Comment