David G. Savage, Times Staff Writer . LA Times . 24 nov 2002
Maybe you don't have a right to remain silent after
The Supreme Court in its landmark Miranda opinion ruled that police
must respect the rights of people who are held for questioning. Officers must
warn them of their right to remain silent, and, equally important, honor their
refusal to talk further.
But that widely known rule is about to be
reconsidered in the high court in the case of a farm worker here who was shot
five times after a brief encounter with police. Legal experts say the case has
the potential to reshape the law governing everyday encounters between police
and the public.
While the farm worker lay gravely wounded, a police
supervisor pressed him to talk, to explain his version of the events. He
survived, paralyzed and blinded, and sued the police for, among other things,
But Oxnard police assert that the Miranda ruling
does not include a "constitutional right to be free of coercive interrogation,"
but only a right not to have forced confessions used at trial.
administration lawyers have sided with the police in the case. The Supreme Court
will hear oral arguments on Dec. 4.
Police can hold people in custody and
force them to talk, so long as their incriminating statements are not used to
prosecute them, U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the
chief of the Justice Department's criminal division, say in their brief to the
It "will chill legitimate law enforcement efforts to obtain
potentially life-saving information during emergencies," including terrorism
alerts, if police and FBI agents can be sued for coercive questioning, they
Legal experts on the other side of the case foresee far-reaching
effects if the police prevail.
"This will be, in essence, a reversal of
Miranda," said University of Texas law professor Susan Klein.
will be told Miranda is not a constitutional right. If there is no right, and
you are not liable, why should you honor the right to silence?" she asked. "I
think it means you will see more police using threats and violence to get people
to talk. Innocent people will be subjected to very unpleasant
It was early evening on a November day five years ago when
Oliverio Martinez, 29, rode his bicycle down a path and across a vacant lot
toward a row of small homes.
Two officers, Andrew Salinas and Maria Pena,
had stopped to question a man they suspected, wrongly it turned out, of selling
drugs. When they heard a squeaky bike approach in the dark, they called for the
rider to stop.
Martinez dismounted and put his hands over his head. In a
leather sheath on a waist band, he carried a long knife that he used to cut
When the officer patted him down and grabbed for the knife,
Martinez tried to run. Salinas tackled him and tried to handcuff him. As they
struggled on the ground, the officer called out that the man had a huge knife.
Pena moved closer and fired.
One bullet struck Martinez near the left eye
and exited behind his right eye. A second hit his spine. Three more shots hit
When patrol supervisor Sgt. Ben Chavez arrived, a handcuffed
Martinez lay bleeding on the ground. Once Martinez was loaded into an ambulance,
Chavez climbed in with a tape recorder in hand.
On and off for the next
45 minutes in the ambulance and at the hospital, he repeatedly asked the gravely
wounded man to admit he had grabbed the officer's gun and provoked the struggle.
In agony, Martinez is heard screaming in pain and saying he is choking and
"OK. You're dying. But tell me why you were fighting with the
police?" Chavez asks. "Did you want to kill the police or what?" he continues.
One officer had said Martinez tried to grab his gun.
In the emergency
room, Chavez continued to press Martinez to tell him what happened.
did you run from the police?" Chavez is heard to say over the sounds of nurses
"Did you get his gun? ... Did you to try to shoot the
Martinez in a low voice responds: "I don't know.... I don't
Lawyers for Martinez say he panicked when the officer tried to
tackle him, but they say he did not grab the officer's gun.
emergency room, he is heard asking Chavez several times to leave him alone. "I
don't want to say anything anymore."
"No? You don't want to say what
happened?" the sergeant continues.
"It's hurting a lot. Please!" Martinez
implores, his words trailing off into agonized screams. Undaunted, Chavez
resumes. "Well, if you're going to die, tell me what happened."
came only when pain medication took hold, and Martinez faded into
Martinez survived, although he would not see or walk
again. He sued Oxnard police for illegal arrest, the use of excessive force and
coercive interrogation in police custody.
Under a post-Civil War law,
city and state officials, including police officers, can be sued in federal
court if they violate a person's rights under the U.S. Constitution.
federal judge in Los Angeles cleared Martinez's case to go to before a
Oxnard's lawyers said the allegations against Chavez should be
dismissed because the patrol supervisor was merely trying to learn what had
happened. U.S. District Judge Florence Cooper disagreed and said his questioning
suggested he had sought to obtain an admission from Martinez that would clear
the two officers.
In the past, the Supreme Court has said police cannot
be sued unless they violate "clearly established" rights.
Before the case
could be tried, Oxnard's lawyers appealed on behalf of Chavez saying he had
violated no clearly established right. (Under California law, cities and
counties are responsible for paying money verdicts against their
But the U.S. 9th Circuit Court of Appeals rejected Oxnard's
appeal and said the facts as alleged, if proven at a trial, would justify
holding Chavez and the city liable.
The 9th Circuit judges said the rule
against coercive police interrogation had been established decades before the
Miranda decision of 1966.
"Sgt. Chavez doggedly pursued a statement by
Martinez despite being asked to leave the emergency room several times," wrote
Judge Richard Tallman. "A reasonable officer, questioning a suspect who had been
shot five times by the police and then arrested, who had not received Miranda
warnings and who was receiving medical treatment for excruciating,
life-threatening injuries ... would have known that persistent interrogation of
the suspect despite repeated requests to stop violated the suspect's 5th and
14th Amendment right to be free from coercive interrogation."
decision grew out of the 5th Amendment, which says no person "shall be compelled
in any criminal case to be a witness against himself." This has long been known
as the right against self-incrimination.
The Supreme Court in the 1950s
and '60s struggled in a series of cases to decide whether a person's confessions
to the police had been voluntary or compelled. Often, a suspect claimed to have
been beaten, but the police denied it. In one case, five members of a Los
Angeles family had been held in jail for more than a week before one of them
In frustration, Chief Justice Earl Warren announced a broad new
rule in Miranda vs. Arizona. He said that because police questioning is
inherently coercive, officers must warn suspects of their rights before
questioning begins. His opinion and others that followed it described the
so-called Miranda warnings as limitations on the police.
But all along,
some lawyers and law professors have questioned whether the Miranda warnings
themselves are a constitutional requirement.
When Oxnard's lawyers
appealed the case of Chavez vs. Martinez to the Supreme Court, they asked a
basic question. Is there a constitutional right to be free of coercive police
The answer to that question should be no, they said. And
they cited a reliable source for their view: Current Chief Justice William H.
Rehnquist, a frequent critic of Warren's opinion in the Miranda case.
a 1990 ruling, Rehnquist commented that the right against self-incrimination in
the 5th Amendment was a "trial right." Police cannot violate this right when
they force someone to talk, since "a constitutional violation occurs only at
trial," the chief justice said. The National Assn. of Police Organizations, the
California attorney general's office and the Criminal Justice Legal Foundation
in Sacramento all have urged the court to use the Martinez case to make clear
that the Constitution does not limit forceful police
"Contrary to the 9th Circuit's conclusion, there is no
'right to silence,' " said Oxnard's lawyer Alan E. Wisotsky. Since Martinez was
not prosecuted for anything he said, his rights were not violated by Sgt.
Chavez, he concludes.
The pro-police advocates say that torturing a
suspect, or perhaps denying him food and water for an extended period of time,
would be unconstitutional. They say that "shocking" or "brutal" police conduct
could be punished.
However, "the fact that a federal appellate court has
allowed [a lawsuit] for Sgt. Chavez's brief, comparatively benign questioning
demonstrates the need to clarify the law," said Charles Hobson of Criminal
Justice Legal Foundation. Klein, of the University of Texas, filed a
friend-of-the-court brief on behalf of the National Police Accountability
Project. She argued that innocent people will be particularly vulnerable if the
court rules the Constitution does not forbid coercive police questioning.
Criminal suspects still can insist their incriminating statements not be used
against them at trial. But an innocent person who is held for questioning would
have no right and no remedy, she said.
Two years ago, the high court took
up a well-publicized challenge to the Miranda decision and ultimately refused to
overturn it. Rehnquist, a long-time critic of Miranda, surprised many by writing
the decision for the 7-2 majority.
But his opinion did not describe the
Miranda decision as limiting the police. Instead, he said it means that some
incriminating statements "may not be used as evidence in the prosecution's
Former Los Angeles prosecutor Steven Clymer, now a Cornell
University law professor, said the Martinez case will decide "what Miranda
really means on the street. I think the court will say it is OK for the police
to violate Miranda. You are not violating the Constitution when you ignore
Miranda," he said.
That will affect how police behave, he said. "If the
guy says, 'Stop, I don't want to talk,' or he says, 'I want to see a lawyer,'
you [as a police officer] aren't going to get anything out of him," he
explained. If the officer continues the questioning and pressures the suspect,
he or she may learn valuable information, such as facts about the crime, the
location of a weapon or the names of other suspects or witnesses. All this
information can be used against the suspect, even if incriminating statements
cannot be used at a trial.
"If you're the officer, you look at the costs
and the benefits," Clymer said. And many police officers will decide it is
better to ignore the suspect's right to remain silent than to respect it, he
Clymer, who has an article in the Yale Law Review next month titled
"Are Police Free to Disregard Miranda?" said the Supreme Court would be "more
honest if it just overruled Miranda."
Such an outcome would surprise
"A generation of Americans have been brought up with the belief
that we have a right to remain silent," said Ben Wizner of the ACLU of Southern
Los Angeles lawyer R. Samuel Paz, who is representing
Martinez, said he is surprised by the strange turn in the case.
taking a radical position," Paz said of Oxnard's lawyers. If they are right, it
"would permit officers to engage in the most egregious and abusive conduct in
violation of decades of 5th Amendment jurisprudence," he wrote in his brief to
Although most lawyers who have followed the case think the
Rehnquist court will overrule the 9th Circuit and side with Oxnard, some think
the brutal shooting will cause several justices to hesitate.
could decide the case narrowly by focusing on whether Martinez was in police
custody at the hospital or whether the law regulating Chavez was clearly
established. But the justices agreed to take up Oxnard's appeal posing the broad
question of whether the Constitution regulates police questioning that does not
lead to an incriminating statement in court.
For Martinez, the
slow-moving legal battle has proven to be a new type of agony. Now 34, he lives
with his father in a one-room trailer on a farm field in Oxnard. He is in a
wheelchair and wears dark glasses, covering his missing eye.
has changed. I can't do anything for myself," he said in an interview. His
father leaves food on the stove each day before leaving so his son can warm his
"I depend on my dad. It's very difficult for me," he
Oxnard's lawyers have refused requests to pay for any therapy for
Regardless of what happens in the Supreme Court, Martinez and his
lawyers say they will continue to press their claims for illegal arrests and
excessive force against the Oxnard police.
The city's lawyers say they
are not willing to make payments or a temporary settlement.
officers involved in the Martinez shooting remain on the Oxnard police force and
suffered no disciplinary action as a result of it, city lawyers