On December 4, the Supreme Court will hear arguments in a case that could reshape and weaken Miranda warnings. Specifically, the court will decide whether the Fifth Amendment conveys a "constitutional right to be free of coercive interrogation," or just a right not to have forced confessions against them at trial. The Department of Justice and the Bush Administration, not surprisingly, are behind the police. The case is Oliver Martinez v. Chavez. The 9th Circuit's opinion, which is the one under review by the high court, is at 270 F.3d 852, available here for free.

Be forewarned, the case is a sad one. Martinez, a 29 year old farm worker, was riding his bicycle home from his work picking strawberries. Police were looking for a narcotics suspect they wrongly believed was selling drugs in a field. When Martinez passed, they demanded he stop, get off his bicycle and 'assume the position.' One officer located Martinez' strawberry knife. A struggle of some sort ensued, although police have conceded Martinez never struck or kicked them. One of the cops opened fire on Martinez, pumping him with five bullets, leaving him blind in one eye and paralyzed. He is now 34 years old and resides with his father in a one room trailer. He has a wheelchair and wears dark glasses to cover his missing eye. Oxnard has refused to pay for any therapy for him. He has not been charged with a crime.

Immediately after the shooting, Martinez was taken to the hospital. The police barged their way into the emergency room where Martinez was being treated. He repeatedly told them he did not want to talk to them. They persisted in trying to question him until he passed out.

Martinez sued the city and police for a federal civil rights violation (called a 1983 action) seeking damages for unlawful arrest and engaging in excessive force. The action lies against police officers who violate an individual's clearly established legal rights and prevents them from using qualified immunity from lawsuits as a defense to the lawsuit.

The lower courts ruled in Martine'z favor on the issue of whether he could sue the city and police. The 9th Circuit ruling, which is now under review by the Supreme Court, stated:

"Sgt. Chavez doggedly pursued a statement by Martinez despite being asked to leave the emergency room several times. 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."

"Without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. Chavez persisted in questioning Martinez during, not after, medical treatment. Although Martinez did not... affirmatively request counsel, he repeatedly requested that Sergeant Chavez refrain from interviewing him until his medical treatment was complete and his life was no longer in danger. In light of the extreme circumstances in this case, a reasonable police officer in Sergeant Chavez's position could not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments. Accordingly, the district court did not err by holding that on these facts qualified immunity was not available to Chavez to insulate him from Martinez's civil rights suit for damages."

U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, will argue that there is no clearly established constitutional right to be free from police interroogation and that therefore Martinez's suit should be dismissed.

This is preposterous to us. The Fifth Amendment has a specific guarantee against self-incrimination. No one can be forced to answer police questions against their will. The most the police can demand, particularly during a 'stop and frisk' or Terry-type stop is basic identification.

The exclusionary rule, fashioned by the Supreme Court in part as a remedy for police misconduct, holds that if the police violate a suspect's Fifth Amendment rights, any statements obtained as a result of the improper questioning may not be admitted or used against them at trial. The purpose of the exclusionary rule iis to is to deter police from engaging in such misconduct, by denying them the benefit of the fruits of their illegal conduct. It turns the exclusionary rule on its head to say that police can engage in the misconduct so long as they abide by the remedy -not using the statements at trial.

The question before the Court, as stated in the Amicus brief of the California Attorneys for Criminal Justice, the ACLU and other groups, is "how to address flagrant and willful violations of Miranda's dictates by law enforcement agencies that systematically and institutionally disregard this Court's admonitions. "(Brief available on Lexis.com in Supreme Court Briefs database.)

A ruling in favor of the police will eviscerate Miranda warnings. As University of Texas law professor Susan Klein told the LA Times:

"Officers 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 experiences."

Two years ago the Supreme Court considered a challenge to the Miranda warnings and upheld them. Chief Justice William Rehnquist, who is known to oppose the warnings, sided with the majority. We don't know if he will join those justices voting to uphold Miranda rights as consitutional rights, but we predict Miranda will again survive.

We hope Martinez garnishes the cops severance pay and pension funds for as long as they live.

Update: Atrios, Calpundit and Daily Kos appear to agree the cops position is over the top nonsense and out of step with the law.