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‘Public Safety' Exception to Miranda Warnings Arises in LAX-Shooting Case
by Joe Palazzolo and Tammy Audi
The airport shooting in Los Angeles has rekindled a now-familiar debate over the circumstances under which the government may question a criminal suspect without first advising him of his right to a lawyer.
The local U.S. attorney's office has taken what legal experts describe as an aggressive interpretation of an exception to the Miranda rule in investigation of Paul Anthony Ciancia, the suspect in a shooting rampage at Los Angeles International Airport last Friday.
Mr. Ciancia was charged with two federal crimes in a complaint filed over the weekend, including the killing of a federal employee at work, Transportation Security Administration officer Gerardo I. Hernandez. The charge carries the death penalty, if Mr. Ciancia is convicted. The U.S. Attorney General will make the ultimate decision about whether to pursue the death penalty after a lengthy review protocol for potential federal death penalty cases.
In a court filing earlier this week, prosecutors objected to a request to appoint a public defender to represent Mr. Ciancia. Part of the government's argument: that it should be able to question him about the ”possible existence of co-conspirators, organizational support for his actions, and other violent plots about which Ciancia could have knowledge,” before it advised him of his right to an attorney.
A Supreme Court decision in 1984 said police can skip the Miranda warning — which begins, “You have the right to remain silent…” — if there is an imminent threat to public safety. In that case, the court ruled police acted properly when they asked a man arrested on suspicion of rape where he had hidden the gun he was carrying before they had read him his rights.
“The public safety exception was originally conceived to permit on-the-scene interrogation of suspects in urgent and potentially dangerous situations,” said Justine Harris, a defense lawyer in private practice and former assistant federal defender.
But increasingly, Ms. Harris said, the exception is becoming the rule. “Using the doctrine to justify questioning suspects in non-emergency situations amounts to a deliberate end-run around the Miranda rule,” she said.
Juliet Sorensen, a law professor at Northwestern University and former federal prosecutor, said there were too few examples of the use of the public-safety exception to draw firm conclusions, but she said the application of the exception in the Ciancia case went beyond the parameters of an Federal Bureau of Investigation memo on the subject.
“It appears to be DOJ policy to consider invoking the public-safety exception whenever possible to gather information or intelligence,” said Ms. Sorensen.
The application of the public-safety exception in the investigation of Mr. Ciancia, who has been in the hospital for nearly a week and has told police he acted alone, raises several questions. What is an immediate threat? Does he qualify as an operational terrorist?
The Federal Bureau of Investigation said in a 2010 internal memo that, in investigations of operational terrorists, agents should ask “any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.”
The FBI said in an application for a warrant to search Mr. Ciancia's phone that it was interested in his views on the legitimacy and activities of the U.S. government. The warrant application mentions the New World Order, an old conspiracy theory that holds that an international group of elites is plotting to rule the world.
Similar issues arose in the investigation of the suspect in the Boston Marathon bombing earlier this year. A federal magistrate judge advised Dzhokhar A. Tsarnaev, the surviving suspect in the attack, of his rights about 16 hours after he was charged in a criminal complaint. The judge, Marianne Bowler, created a makeshift courtroom in Mr. Tsarnaev's hospital room, where he was recovering from gunshot wounds.
In Mr. Ciancia's case, a federal magistrate judge appointed a federal public defender to represent him, against the government's wishes. Prosecutors had warned in court papers that the move would “foreclose the opportunity — should Ciancia so choose — to waive his constitutional rights and speak to the government about the offense prior to arraignment.”
“This is simply untrue,” lawyers in the federal public defender's office wrote in a brief in response. “Mr. Ciancia is free to exercise his right to speak to the government, if he wishes, whether or not counsel is appointed.”
At this point, it's unclear whether the government still intends to invoke the public safety exception to question Mr. Ciancia, and if it does, how it would go about that given that Mr. Ciancia now has counsel. Mr. Ciancia's physical condition is also unknown. He is expected to meet with a judge next week, if his condition improves, according to people familiar with the situation.
Once Mr. Ciancia has had his initial appearance, the government would be prohibited from questioning him in the absence of his lawyer, unless he initiated the discussion or waived his right to counsel, said Jack Call, a criminal justice professor at Radford University in Virginia.
Mr. Call said, however, that the public-safety exception could still be applied, but Mr. Ciancia would almost certainly invoke his right to counsel, since he already has a lawyer.
A spokesman for U.S.Attorney André Birotte Jr. declined to comment. Sean K. Kennedy, the federal public defender in Los Angeles, didn't respond to requests for comment.
A lawyer for Mr. Ciancia's family in New Jersey said he had not been hired to represent Mr. Ciancia. “Paul is our son and brother,” the lawyer, John Jordan said, reading from a statement issued by the Ciancia family. “We will continue to love and care for him. We will support him during the difficult time ahead.”
The family said they were cooperating with federal investigators.
On Wednesday, the coworkers of the slain TSA agent, Mr. Hernandez, honored him with a ceremony and motorcade at Los Angeles International Airport. TSA officers formed a procession through Terminal 3, wher Mr. Hernandez was killed, as lines of police, fire fighters and other law enforcement agencies saluted. Airports across the country plan to hold a moment of silence for Mr. Hernandez on Friday at 9:20 a.m., when the shooting started.
http://blogs.wsj.com/law/2013/11/07/public-safety-exception-to-miranda-warnings-arises-in-lax-shooting-case/
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California
How the Police Endanger Public Safety
Law enforcement policies increasingly put the public at risk.
by Steven Greenhut
A news photograph from Friday taken in the normally placid suburban community of Roseville, east of Sacramento, was shocking. A California Highway Patrol officer was pointing a rifle at a motorist stopped at a checkpoint, as police searched for an armed parolee who had injured some of their colleagues. It seemed reminiscent of an occupying army.
News stories focused on the suspect and the details of the manhunt, but the police approach – evacuating houses, using military-style vehicles and helicopters – raises a question rarely asked about policing policies today: Do they unnecessarily endanger the public's safety?
When agencies combed Southern California for former Los Angeles Police Department officer Christopher Dorner in February, some officers fired upon innocent bystanders who didn't come close to the right profile. Dorner, a large black man, was driving a gray Nissan truck, but an officer shot two Latina women driving a blue Toyota truck. An officer also fired on another bystander 20 minutes later.
Police behaved similarly as they sought a Boston Marathon bomber. As Conor Friedersdorf asked recently in the Atlantic, “Does anyone else find it disturbing that Boston area police, confronted with an unarmed suspect in a backyard boat, fired so many bullets so wildly that multiple adjacent houses were strafed ... ?”
This approach is not uncommon even in day-to-day policing. On October 22, in the middle of the afternoon, 13-year-old Andy Lopez Cruz was walking down the street in Santa Rosa with a plastic pellet rifle. Officers hid behind the door of their patrol car and called to him. As the boy turned, they shot him to death.
According to the police statement, “One of the deputies described that as the subject was turning toward him the barrel of the assault rifle was rising up and turning in his direction. The deputy feared for his safety, the safety of his partner, and the safety of the community members in the area.”
There are ongoing investigations, but this was standard behavior. Police routinely use deadly force in questionable circumstances even as violent crime rates hit record lows. Officer safety seems to trump concerns about public safety.
And there's remarkably little public discussion about the proper use of deadly force. Because of the California Supreme Court's 2006 “Copley” decision involving the former owner of this newspaper, the disciplinary records of law-enforcement officers are secret. So are internal investigations of specific shootings. The public has no right to know which officers may have a history of using deadly force.
The Peace Officers' Bill of Rights makes it tough to remove an officer. Former University of California-Davis cop John Pike, who nonchalantly pepper-sprayed peaceful Occupy protesters in November 2011, was just awarded a $38,000 workers-compensation settlement because of the stress he endured – more than the amount received by any of his victims. Pike spent eight months on paid leave and then was fired.
Yet change only goes in the opposite direction. Gov. Jerry Brown signed SB 313, which forbids police agencies from disciplining officers that district attorneys have listed as having lied or otherwise misbehaved. That will further protect officers who unnecessarily use force and then mislead investigators.
“We need law enforcement professionals who are not operating from a vantage point of fear and paranoia where their own self-preservation trumps all other concerns,” argues Jonathan Taylor, a Cal State Fullerton professor. He was active in protests after Fullerton police in 2011 beat a homeless man named Kelly Thomas. The trial for two officers charged in Thomas' death is slated for December – a rare instance of police being prosecuted for a killing.
“Deadly force should not be the standard whenever police perceive a threat,” Taylor adds. He and other activists call for policy changes as well as changes within a police culture they view as overly militaristic. Police officials say such responses are needed given the very real dangers officers face and the potential threats to the public of having, say, an armed-and-dangerous parolee roaming the streets.
But most politicians of both parties, fearful of the political clout of police unions, don't want to go near this topic. So change may hinge on whether enough people are upset enough by these incidents to demand it.
http://reason.com/archives/2013/11/01/how-the-police-endanger-public-safety
