More on Bad Wars Make Bad Law: Some Judicial Warnings

June 11, 2013
By Hanging Out with Carl Gunn



  • There are some opinions out there warning about expanding the “public safety” exception to Miranda too far.
  • It’s an exception that should be narrowly construed and requires an objectively reasonable need to protect the police or the public from an immediate danger.
  • The attempt to use the exception in the Boston Marathon case as part of the “war” on terrorism is a sad commentary on how that “war” could erode our civil liberties.



Last week’s post was getting a little long, so I saved some for a follow-up post. You’ll recall I expressed general concern about the potential erosion of our civil liberties from the “war” on terrorism, and specific concern about the apparent use of that “war” to try to expand the Miranda “public safety” exception in the interrogation of the Boston Marathon suspect.

In this post, I want to share some judicial opinions and other thoughts that provide some hope for some protection in the judiciary. In particular, there are some opinions warning against expanding the “public safety” exception too far. Some express concern about just the limited expansion we already have. See, e.g., United States v. Liddell, 517 F.3d 1007, 1010 (8th Cir. 2008) (Gruender, J., concurring) (expressing concern that decisions “have strayed from the Supreme Court’s tethering of the exception to the existence of exigent circumstances”);United States v. Luker, 395 F.3d 830, 834-35 (8th Cir. 2008)(Heaney, J., dissenting) (expressing concern that “[a]dmitting [the defendant’s] statement under these circumstances would expand the public safety exception far beyond its original scope”). And former Senator, then Fourth Circuit Chief Judge, Sam Ervin of Watergate hearings fame (for those old enough to remember the Watergate hearings), whom I recall being a relatively ardent protector of civil liberties for a Southerner (excuse my geographic bias), penned a nice warning in United States v. Mobley, 40 F.3d 688 (4th Cir. 1994):

[I]t is imperative that the scope of this exception be recognized and followed. Quarles is an exception to theMiranda rule, and its exceptive nature is evident throughout the opinion. (Citations omitted.) As an exception, it must be construed narrowly. As the QuarlesCourt indicated, the “public safety” exception applies only where there is “an objectively reasonable need to protect the police or the public from any immediate danger associated with [a] weapon.” Id. at 659 n.8, 104 S. Ct. at 2633 n.8. Absent such circumstances posing an objective danger to the public or police, the need for the exception is not apparent, and the suspicion that the questioner is on a fishing expedition [as may very well have been true in the case of the Boston Marathon suspect?] outweighs the belief that public safety motivated the questioning that all understand is otherwise improper. (Footnote omitted.)

Mobley, 40 F.3d at 693 (emphasis in original).

Finally, in anticipation of those who might say catching terrorists is more important than people’s rights, I’ll add a couple thoughts. First, please read the quote from “A Man for All Seasons” in the second paragraph of “How This Blog Started” in the column to the left. Second, the government always has the choice of prioritizing its investigation of terrorism over obtaining admissible statements evidence. (Remember all fruits of any unMirandized statement would still be admissible. See United States v. Patane, 542 U.S. 630 (2004).) As the Second Circuit recognized in In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177 (2d Cir. 2008): “[T]he Miranda framework governs only the admission of custodial statements at U.S. trials. Insofar as U.S. agents do not seek to introduce statements obtained through overseas [and, for that matter, domestic] custodial interrogations at U.S. trials, Miranda’s strictures would not apply.” Terrorist Bombings, 552 F.3d at 203 n.19. The court did also make a vague, general suggestion that the public safety exception “would likely apply overseas with no less force” than it does domestically, id., but one hopes the court will remember, even in a terrorism case, the limited “force” with which the exception applies.

I don’t know how often this specific Fifth Amendment issue will come up, but what the government tried to do with it in the Boston Marathon case is a sad example of how the “war” on terrorism can start undercutting civil liberties. We – and the courts – need to watch for that.