Today the Ninth Circuit Court of Appeals ruled "unconstitutional" the alleged policies of the Los Angeles and Santa Monica Police Departments authorizing police officers to interrogate suspects "outside Miranda" despite the suspects' invocation of their right to remain silent and their requests for an attorney. The case is California Attorneys for Criminal Justice v. Butts (U.S. District Court for the Central District, Case No. 97-56499). The American Civil Liberties Union of Southern California, along with Boalt Hall professor Charles Weisselberg, had argued that police officers were not free to ignore a suspect's assertion of Miranda rights whenever they chose.

The suit was brought on behalf of James McNally and James Bey, each of whom repeatedly asked for a lawyer during interrogation. But police disregarded their requests, continuing to ask questions while falsely assuring the suspects that because they had requested counsel, nothing else they said could be used against them.

ACLU Legal Director Mark Rosenbaum praised the Ninth Circuit ruling, declaring that, "The court's decision puts an end to the practices of the Los Angeles and Santa Monica police departments of flaunting at will a suspect's Miranda rights. Now when a suspect invokes the right to remain silent, the police must be silent, too, no longer free to ignore the assertion and strong-arm a confession. Over 30 years after the famous Miranda decision by the United States Supreme Court, Miranda is finally worth the paper it was written on - the Constitution." Initially filed in December, 1995, the suit sought to redress the deprivation by defendants of their rights, privileges and immunities arising under the Fifth, Sixth and Fourteenth Amendments. The lawsuit challenged the common police practice of continuing to conduct interrogations of suspects even after they have clearly invoked their right to silence or their right to consult with an attorney. As the Ninth Circuit pointed out, officers in the Butts case had sought affirmatively to discourage a suspect's assertion of Miranda rights, refused to cease questioning and prevented a lawyer from being obtained even when requested.

Although statements obtained in violation of Miranda are inadmissible, the prosecution may use such illegally-obtained statements to impeach the defendant if s/he testifies at trial. A number of police departments have realized that they have nothing to lose by continuing to question a suspect who invokes his constitutional rights. If no incriminating statements are obtained, the interrogators have nothing to lose. If they succeed in obtaining incriminating statements, the prosecution can use them to dissuade the defendant from testifying in his own defense or to impeach him if he does.

The case is California Attorneys for Criminal Justice v. Butts (U.S. District Court for the Central District, Case No. 97-56499).

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