April 21, 2013

An explanation of the "public safety" exception to Miranda v. Arizona

On April 19, 2013, Dzhokhar Tsarnaev, 19, was captured after a five-day manhunt following the Boston Marathon bombings. Almost immediately, a dispute over how to treat the only surviving supect of the bombings played out over mass and social media outlets. Should he be considered an "enemy combatant?" Should he be tried in a civil court or a military tribunal? Should he be read his Miranda rights? First, without looking at what should and should not be done, these are the facts as we know them:

1) Tsarnaev is an American citizen.

2) Tsarnaev and his brother, Tamerlan, 26, who was killed during the manhunt, are suspected of murdering four people and injuring over 100 more over the course of five days in and around Boston.

3) The brothers are Muslims of Chechen descent who have been in the United States for more than ten years.

4) There is no indication as of yet that they have any connections to any international terrorist organization, and no group has claimed responsibility for their actions.

Upon capture, it became big news when major news outlets erroneously reported that the FBI read Dzhokhar Tsarnaev his Miranda rights. Soon thereafter, the FBI announced that he had not been read his rights, and that in fact they would not do so until after an elite interrogation team questioned him under the "public safety" exception to Miranda as stated by the Supreme Court in the 1984 decision New York v. Quarles (467 U.S. 649).

So what is the "public safety" exception to Miranda? The Court wrote in Quarles:

"We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them." (467 U. S. 658-59.)

The exception allows the police to question the suspect only on what may be considered an immediate threat to public safety or destruction of evidence. In Quarles, the arresting officer only questioned the suspect as to the location of the gun used in the crime, and the Court allowed Quarles' statement to be admitted at his trial. 467 U.S. 659-60.

In Tsarnaev's case, it would appear that the FBI would only be able to question him on where other bombs could be hidden, or whether he has any associates planning other attacks in the future. However, when it comes to terrorism, the line as to what is an "imminent threat" of terrorism has been blurred by both the Bush and Obama administrations in the name of national security, so it could be up to the courts to determine if Miranda should be limited further.

It is also important to note that the Fifth Amendment does not discriminate by citizenship. Even if Tsarnaev were not a U.S. citizen, he would enjoy the right against self-incrimination under the law, and thus would legally be entitled to receive Miranda warnings and request an attorney to be present when he is questioned further.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

September 4, 2012

In the news: DNC moves forward with same-sex marriage

by Philip Yabut in current events, gay marriage and divorce

This morning (9/4/2012), the fight for marriage equality took another step forward when the Democratic National Committee became the first major political party to adopt same-sex marriage as part of its official platform:

We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference. We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

See the entire DNC platform here (opens in PDF reader).

August 8, 2012

Mmm...Chicken...

by Philip Yabut in current events, gay marriage and divorce

The recent flap over Chick-Fil-A president Dan Cathy's very public stance about same-sex marriage brought out a lot of back-and-forth press releases, accusations, and insults by and between people and groups on both sides of the marriage equality issue. Here's what I got out of it:

1. There are no First Amendment issues at stake. The First Amendment only applies to the government suppressing the right to free expression. No one is attacking Dan Cathy's right to express his views, support any group, or practice his religion, and those who oppose him have every right to say that they do.

2. Those who complain about boycotts of Chick-Fil-A should remember that it's a very old tactic that has been used time and again over the years. Remember the Dixie Chicks?

3. Taken as a whole, "Biblical" marriage includes concubines, mistresses, and multiple wives (but not husbands). The Hebrew Scriptures (Old Testament) is full of examples of each. Also, there are various prohibitions on (among other things) eating pork (Leviticus 11:7-8) and shellfish (Leviticus 11:10), cutting your hair incorrectly (Leviticus 19:27), tattoos (Leviticus 19:28), and divorce for any reason (Mark 10:8-9). Hey, I should be out of a job!

The Chick-Fil-A story dominated the news cycle for a few days, but like every big splash it has faded and will soon be relegated to, at most, an historical footnote, though no doubt various groups will raise a lot of money from it. What will not fade is the advance of marriage equality and the resistance that it faces in the legislatures and courts.

May 28, 2012

Port v. Cowan -- an update

by Philip Yabut in current events, divorce, gay marriage and divorce

In a previous post I briefly wrote about the saga of Port v. Cowan, a same-sex divorce case that was headed to Maryland's highest court. The parties wed in a civil ceremony in California during the brief time same-sex unions were legal in that state, but their marriage subsequently went sour and they sought a divorce in Prince George's County, Maryland. The circuit court dismissed their claim, ruling that the state did not recognize their marriage as legal. On May 18, 2012, the Maryland Court of Appeals issued its decision, which overruled the circuit court's ruling and instructed it to grant the parties' divorce. The rationale is that Maryland courts only fail to recognize otherwise valid out-of-state marriages if they're contrary to public policy, and they did not consider gay marriage as such. The decision was hailed as a victory by gay rights advocates, and comes as Maryland faces an Election Day referendum on a same-sex marriage law passed by the state legislature and signed by Gov. Martin O'Malley.

May 9, 2012

Evolution

by Philip Yabut in current events, gay marriage and divorce

At around 3:00 pm on May 9, 2012, Barack Obama became the first U.S. president to openly endorse same-sex marriage. The president made his views known in an interview with Robin Roberts of ABC News after days of pressure from LGBT groups following similar public pronouncements from Vice President Joe Biden and Secretary of Education Arne Duncan over the weekend. A day earlier, North Carolina voters endorsed a state constitutional amendment banning gay unions, making it a busy time for the same-sex marriage debate.

Arguably, the president's declaration of support for gay marriage after famously saying his views were "evolving" back in 2010 will have the biggest impact in the debate. With North Carolina's vote, 31 states now have laws banning same-sex marriage. Only six states and DC have legalized gay marriage, while five others have civil union statutes in force. Maine, New Jersey, Maryland and Minnesota will vote on legalizing same-sex marriage later this year. Obama's announcement has been hailed by LGBT groups and denounced by heterosexual marriage proponents, which should galvanize both sides as the battle rages on.

It's worth noting that a weekend Gallup poll found 50 percent support of gay marriage nationwide, a dramatic shift from just a few years ago when it was not politically expedient to come out in favor of it. The trend line is clear -- gay marriage is making steady progress in public support. As with other civil rights struggles in our history, the law generally lags behind public opinion. But eventually it catches up, and now it may be possible foresee a future where gay Americans can enjoy the same right to marry the people they love just like everyone else.

April 10, 2012

When Breaking Up Is REALLY Hard to Do -- An Article on Same-Sex Divorce

by Philip Yabut in current events, divorce, gay marriage and divorce

Divorce is a process that is almost, if not just, as old as marriage itself. In the U.S., it was once fairly difficult to end a marriage, but once states began formalizing uncontested divorce procedures it became a lot easier and less expensive. Of course, that is true only for marriages between a man and a woman.

The Washington Post's Ellen McCarthy writes:

"[Port v. Cowan] represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue."

Port v. Cowan (link leads to a video of oral argument in the Maryland Court of Appeals), nicely summarized by The Baltimore Sun, is a divorce that would be a matter of a few minutes in court followed by a one-line declaration by a judge and a short decree declaring the parties are separated by law. But for gay couples that go sour, the country's current patchwork of same-sex marriage and divorce laws makes something that most people take for granted a more difficult proposition.

If you live in a state that has already legalized same-sex marriage and/or recognizes such unions from other states, divorce is as simple as following the rules. However, if you don't live in such a state and you need to separate from your spouse, the best way to protect your rights is to sign a binding property settlement agreement with your spouse, as well as rewriting your will and creating new beneficiary arrangements for insurance purposes, and that's just for starters. Simply put, you would need to manually sever as many ties as you can with your spouse with separate instruments to gain the same effect that a divorce does automatically.

It is difficult enough, especially during an emotionally stressful time like a separation, to have to deal with jumping through legal hoops. But it is better to safeguard your rights. And maybe someday the law will catch up so all of it will become unnecessary.

March 30, 2012

In defense of self

by Philip Yabut in current events

The controversy and rancor over the tragic shooting of Florida teenager Treyvon Martin in Sanford, Florida, has put a spotlight on so-called "stand your ground" laws that 18 states currently have in force. Basically, stand your ground is a further expansion of the common law self-defense doctrine that every state has codified in various degrees.

The common law self-defense doctrine allows for the use of justifiable force to protect your or someone else's life. The elements are that you are a non-aggressor that must have reasonable belief that force is necessary to protect yourself from the imminent use of unlawful force by another person, and that your response must be in kind (in other words, you cannot use deadly force if your life is not threatened). Deadly force is permissible if your life is in danger, and -- most importantly -- there is a duty to retreat if the opportunity presents itself.

The so-called "Castle doctrine" expands common-law self-defense by removing the duty to retreat if threatened with bodily harm in your home. 27 states have passed a version of this rule.

A number of states have passed "stand-your-ground" laws, which further expand self-defense by removing the duty to retreat in situations outside the home. If you feel threatened anywhere, you can "stand your ground" and defend yourself, and the law grants immunity from prosecution for homicide or manslaughter. Florida's rule is now under the media and legal microscope in the wake of the Trayvon Martin tragedy.