The Ignored Amendment
by Paul Hein
In some quarters there is grave concern over the future of the Miranda warning, exacerbated recently by the Supreme Court's ruling in the case of Oliverio Martinez. Martinez harvests strawberries in California, and one evening, as he bicycled home, he encountered two Oxnard policemen looking for a drug dealer. They told Martinez to stop, and frisked him. He had a large knife in a sheath on his belt. When one of the cops tried to take it, Martinez resisted, and started to run. He was tackled, and in the scuffle, shot five times, resulting in blindness and paralysis. He is suing the Oxnard police department.
As he lay waiting for medical care, one of the officers tried to question him. When Martinez complained that he was dying, the officer said, in effect, so what, answer my questions. During the ride to the hospital in the ambulance, the questioning persisted, and in the emergency room, despite several requests to leave, the officer continued his attempted interrogation. Martinez received no Miranda warning. Indeed, he was not charged with a crime. Oddly enough, this fact exculpates the persistent interrogation, at least in the minds of the Oxnard police department, which insists that the Miranda ruling does not include a "constitutional right to be free of coercive interrogation," but rather, a right not to have forced confessions used at trial. "Forced confessions?" This sounds, to me, like an admission that the police coerce confessions, but nobody has seemed to notice or care. The U.S. Solicitor General, Theodore Olson, filed a brief claiming that police can hold people in custody and force them to talk, so long as their incriminating statements are not used to prosecute them. Furthermore, it will "chill legitimate law enforcement efforts" if police and FBI can be sued for coercive questioning.
The Supreme Court ruled on the matter recently and decided that, because Martinez wasn't charged with a crime, his Fifth Amendment rights hadn't been violated. The Court did remand the case, however, on the basis of a possible violation of his Fourteenth Amendment right to due process, because the police interrogation could be compared to torture.
Torture? Well, reason and logic certainly seem to be on the rack. The gist of this case seems to be the alleged right of police to vigorously question someone, even if he is not involved with a crime, or charged with one. Is that, in fact, an issue? It reminds me of the "Privacy Act Notice" the IRS sends with its tax forms. As apparent justification for its demands, the IRS says, "Our legal right to ask for information is found in Internal Revenue Code sections 6001, 6011, and 6012(a) and their regulations." So what? Since when does a law authorizing bureaucrats, or police, to ask questions imply an obligation on the part of the person questioned to answer, or to answer in the way expected by the interrogator? There is a law requiring banks, for example, to request a social security number from anyone opening an account. This is invariably interpreted as meaning that the person to whom the request is made is obligated to give the expected answer: his social security number. Doesn't anyone remember the First Amendment?
Well, of course, we all know that the First guarantees free speech, among other things. We can speak our minds without fear of reprisal. We can express our thoughts and ideas unfettered by the restraints of government, or anyone else. But what if what we want to express is: zip — nada — nothing?
If I were out bicycling at night, and you stopped me and asked, "What are you doing here?" would I be required to answer? If my neighbor wanted me to join the neighborhood association and asked for my social security number, would I be required to give it? If a nosy relative asked me how much money I made last year, would I have to tell her? Rhetorical questions. Indeed, if any of these busybodies had the temerity to take me to court to force me to answer their questions, their suit would be dismissed out of hand. I don't have to talk to strangers! I have that right!!!
Does it matter if the strangers work for the government? Government, after all, exists to protect my rights, including my right to keep my mouth shut, if silence is what I wish to communicate. Is the principle of freedom of — and from — speech only valid as it pertains to non-government questioners? That would mean turning justice and logic topsy-turvy.
The Solicitor General maintains that people can be forced to talk by the police, if their statements are not used against them at trial (in which case, why ask?) Even if that is true, does it mean that the person's answers must be what the police want to hear? If "forced" to talk (how, I shudder to ask, is that accomplished?) can't one simply say, "I do not wish to speak about this?"
Well, maybe not. Perhaps we've reached the point in American history where people can not only be forced to talk to the cops or bureaucrats, but punished if they do not say what those public servants want to hear — sort of like the frivolous filing penalty arbitrarily doled out by the IRS to those whose tax forms don't contain the data that the government wants and expects. In that case, why don't we dispense with the hypocrisy of the "rule of law," and "due process," and simply tell people that, as government property, they must do as they're told, and say what the rulers want to hear, and all will go well. We can inter the First Amendment with the Fifth — and all the rest of them.
June 7, 2003
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