For Now, Public-Safety Exception Precludes Bomber's Miranda Rights

As a newly-minted U.S. citizen captured on U.S. soil, Boston terrorist suspect Dzokhar Tsarnaev will get the full range of constitutional protections from the Bill of Rights, as we explained yesterday, except one: Tsarnaev wasn’t read his Miranda rights.

In 1966, the heyday of the liberal Warren Court years, the Supreme Court held in Miranda v. Arizona that the Fifth Amendment right against self-incrimination requires police to inform anyone they’re taking into custody that (1) they have the right to remain silent, (2) anything they say can be used against them in court, and (3) they have a right to have an attorney present and advising them before they answer any police questions.

Generally speaking, any information the police extract from a suspect before he’s been read his rights cannot be used against him. So police try to read Miranda rights as soon as possible.

The Court considered overruling Miranda in 2000 in Dickerson v. United States, but, over the dissent of Justices Antonin Scalia and Clarence Thomas, a majority of the Court upheld it on stare decisis grounds–that precedents must be upheld unless certain special circumstances justify abandoning them.

But there are exceptions to Miranda. One is the public-safety exception, and it’s been invoked to deny Tsarnaev his Miranda rights.

The public-safety exception is for situations where there could be an imminent threat to innocent lives, such as a hidden bomb. The Supreme Court says the Constitution allows such an imminent threat to trump the need for defendants to know their rights, so the police can try to quickly get information to secure the bomb, the loaded gun, or whatever other deadly risk to the public is out there. It’s designed to save innocent lives.

This exception only lasts so long. At some point a court would say that there is no longer an imminent threat–that federal agents have had reasonable time to determine if there was still a ticking bomb–and at that point Tsarnaev gets his lawyer.

Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union and on faculty at Liberty University School of Law.

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