Listen to my full interview with Derek Steyer on the Supreme Court's decision overturning Roe v. Wade on WFMJ-TV's podcast.
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* Criminal Defense Attorney * Former Prosecutor * Former Parole Board Member * 724-658-8535
The Supreme Court ruled today, 6–3, that if a police officer fails to inform you of your right to remain silent and avoid self-incrimination when you're suspected of a crime, you can't sue under federal law as a violation of your civil rights, reported Reason.
To be clear, the Court isn't overturning Miranda v. Arizona, the 1966 Supreme Court ruling that determined that it's a violation of a suspect's Fifth Amendment rights for police to interrogate him or her about a crime without informing them they have the right to remain silent and the right to request an attorney. But what the Court ruled today is that if and when this right is violated, people can't turn to Section 1983 of the U.S. code and file a civil action lawsuit against the police officer or law enforcement agency and seek redress or damages.
Today's ruling, Vega v. Tekoh, involved an investigation of sexual assault at a Los Angeles medical center in 2014. Terence Tekoh worked at the medical center and was interrogated by L.A. County Deputy Carlos Vega. Vega did not tell Tekoh about his Miranda rights and extracted a written confession. This confession was admitted into evidence in court, and a judge determined that his Miranda rights weren't violated because he wasn't in custody when he confessed. Even so, the first case ended in a mistrial, and then Tekoh was ultimately found not guilty in a second trial. Tekoh then sued using Section 1983 against Vega and others seeking damages for the violation of his Fifth Amendment right against self-incrimination. The case wound its way all the way up to the Supreme Court to hear in April. The American Civil Liberties Union and the Cato Institute together submitted an amicus brief to the Court supporting the position that Vega could be held liable.
But in a pure ideological split, the Court today determined that a violation of the Miranda rules does not provide a basis for a civil rights lawsuit under Section 1983. Justice Samuel Alito wrote the opinion of the Court, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Essentially, Alito's opinion says that the purpose of Miranda is to serve as a safeguard against compelled self-incrimination by police or prosecutors. It was not intended to establish that it was inherently a Fifth Amendment violation if somebody voluntarily confesses or self-incriminates himself or herself prior to or absent of a Miranda warning. The Miranda warning is intended to be a "prophylactic," to safeguard against potential deliberate abuse. Alito writes:
Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion. In addition, the warnings that the Court required included components, such as notification of the right to have retained or appointed counsel present during questioning, that do not concern self-incrimination per se but are instead plainly designed to safeguard that right. And the same is true of Miranda's detailed rules about the waiver of the right to remain silent and the right to an attorney.
Alito concludes that because a violation of Miranda is not automatically a violation of the Fifth Amendment, there is no justification to permit a civil rights lawsuit. The opinion reverses a judgment in Tekoh's favor and remands it back to the lower courts to revisit.
The dissent is written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan observes the obvious in her dissent, that this ruling will make it harder for defendants to pursue legal remedies when their rights are violated:
The majority observes that defendants may still seek "the suppression at trial of statements obtained" in violation of Miranda's procedures. … But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? The point of §1983 is to provide such redress—because a remedy "is a vital component of any scheme for vindicating cherished constitutional guarantees." … The majority here, as elsewhere, injures the right by denying the remedy.
Reason's Billy Binion noted earlier this week that the Supreme Court had declined to take on cases where federal officers had been granted civil liability against lawsuits when they violate the rights of citizens and even commit crimes in the line of duty. This case continues this trend—the Supreme Court recognizes that these constitutional rights exist, but by shielding officers from liability for violating these rights, the Court undermines the necessary tools to make sure police take them seriously.
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“It’s direct, indisputable, empirical evidence that this kind of common claim that ‘the only thing that stops a bad guy with the gun is a good guy with the gun’ is wrong.”
Adam Lankford, a professor at the University of Alabama.
The lengthy police response to a school shooting in Uvalde, Texas, and the death of an armed security guard as part of an attack on a Buffalo supermarket last month have drawn fresh scrutiny to a recurring (and uniquely American) debate: What role should the police and bystanders play in active shooter attacks, and what interventions would best stop the violence?
The debate has moved to Capitol Hill as lawmakers consider gun safety legislation that could increase funding for mental health services, school safety and other measures aimed at keeping guns out of the hands of dangerous people. “What stops armed bad guys is armed good guys,” Senator Ted Cruz suggested in the wake of the Uvalde shooting, echoing many other gun rights advocates over the years.
Researchers who study active shooter events say it can be difficult to draw broad policy conclusions from individual episodes, but a review of data from two decades of such attacks reveals patterns in how they unfold, and how hard they are to stop once they have begun, reports The New York Times.
There were at least 433 active shooter attacks — in which one or more shooters killed or attempted to kill multiple unrelated people in a populated place — in the United States from 2000 to 2021. The country experienced an average of more than one a week in 2021 alone.
The data comes from the Advanced Law Enforcement Rapid Response Training Center at Texas State University, whose researchers work with the F.B.I. to catalog and examine these attacks. Unlike mass shooting tallies that count a minimum number of people shot or killed, the active attack data includes episodes with fewer casualties, but researchers exclude domestic shootings and gang-related attacks.
Researchers caution that some older attacks may be missing from the data, but they feel confident in their overall assessment that shootings are increasing. What is less clear is how to limit the damage of these attacks, given how quickly they unfold and how powerful the weapons used can be.
Most attacks captured in the data were already over before law enforcement arrived. People at the scene did intervene, sometimes shooting the attackers, but typically physically subduing them. But in about half of all cases, the attackers commited suicide or simply stopped shooting and fled.
“It’s direct, indisputable, empirical evidence that this kind of common claim that ‘the only thing that stops a bad guy with the gun is a good guy with the gun’ is wrong,” said Adam Lankford, a professor at the University of Alabama, who has studied mass shootings for more than a decade. “It’s demonstrably false, because often they are stopping themselves.”
Police officers shoot or physically subdue the shooter in less than a third of attacks
Most events end before the police arrive, but police officers are usually the ones to end an attack if they get to the scene while it is ongoing.
Hunter Martaindale, director of research at the ALERRT Center, said the group has used the data to train law enforcement that “When you show up and this is going on, you are going to be the one to solve this problem.”
Information on police response time is incomplete, but in the available data, it took law enforcement three minutes, on average, to arrive at the scene of an active shooting.
Yet, even when law enforcement responds quickly — sometimes within seconds — or if officers are already on the scene when the attack begins, active shooters can still wound and kill many people.
“Law enforcement could be one minute out, and if that individual is proficient with the weapon system they’re using, they can quickly go through a lot of ammunition,” Mr. Martaindale said. “And if they’re proficient in their accuracy, you could have very high victim counts.”
In Dayton, Ohio, in 2019, an attacker shot 26 people and killed nine outside a downtown bar in the 32 seconds before a police officer on duty shot the attacker. A week earlier, at the Gilroy Garlic Festival in Northern California, nearby officers engaged an attacker within a minute of his opening fire, but after 20 people had been shot. Three victims died and the attacker died by suicide.
“There’s not a lot that can be done to stop someone in the opening seconds of harming a significant number of people,” Mr. Lankford said.
And, like in Uvalde, law enforcement does not always bring an attack to a quick end. When a gunman opened fire at the Pulse nightclub in Orlando, Fla., in 2016, a detective working extra duty shot at the gunman from outside the club. More police officers began arriving less than two minutes later. But the police did not enter the club for several minutes, after the gunman had paused his initial assault. Police officers ended the attack when they shot the gunman three hours after the assault began. Forty-nine people were killed and 53 more were wounded.
Bystanders stop some attackers, more often
In the wake of deadly shootings, gun rights advocates often push to arm more people, citing prominent examples where a “good guy with a gun” stopped a “bad guy.”
After a gunman shot 46 people in a church in Sutherland Springs, Texas, in 2017, an armed neighbor arrived at the scene and exchanged gunfire with the gunman, injuring him, until the gunman fled.
But armed bystanders shooting attackers was not common in the data — 22 cases out of 433. In 10 of those, the “good guy” was a security guard or an off-duty police officer.
“The actual data show that some of these kind of heroic, Hollywood moments of armed citizens taking out active shooters are just extraordinarily rare,” Mr. Lankford said.
In fact, having more than one armed person at the scene who is not a member of law enforcement can create confusion and carry dire risks. An armed bystander who shot and killed an attacker in 2021 in Arvada, Colo., was himself shot and killed by the police, who mistook him for the gunman.
It was twice as common for bystanders to physically subdue the attackers, often by tackling or striking them. At Seattle Pacific University in 2014, a student security guard pepper sprayed and tackled a gunman who was reloading his weapon during an attack that killed one and injured three others. The guard took the attacker’s gun away and held the attacker until law enforcement arrived.
When a gunman entered a classroom at the University of North Carolina at Charlotte in 2019, a student tackled him. The student was shot and killed, but the police chief said the attack would have had a far worse death toll had the student not intervened.
One in four attacks ends in a shooter suicide
In more than a quarter of episodes, the attackers ended the shootings by turning the guns on themselves.
Many attackers died by suicide before the police arrived. At a Binghamton, N.Y., immigration services center in 2009, an attacker shot 17 people, killing 13, before turning the gun on himself. A middleschooler died by suicide after shooting two fellow students and a teacher in Sparks, Nev., in 2013. After shooting 471 people at the Route 91 Harvest Festival in Las Vegas from a hotel room overlooking the festival, the gunman died by suicide before the police arrived to his room.
The share of attackers who die by suicide is most likely a fraction of those who have suicidal expectations, Mr. Lankford said. Based on evidence attackers leave before attacks, like online posts or suicide notes, more say they expect to die. Sometimes they expect to provoke law enforcement to kill them, Mr. Lankford said.
Police officers exchanged gunfire in 2018 with a gunman who shot 12 people at a bar in Thousand Oaks, Calif., before he shot himself.
At Virginia Tech in 2007, a gunman locked doors to the building, initially stalling the police, before attacking students and professors, eventually shooting 49 people. But once law enforcement was able to enter, the attacker shot himself as police officers approached.
One in four attackers leaves the scene (though most are later caught)
About a quarter of shootings ended when the attacker or attackers stopped of their own accord and left the scene, then were apprehended or died by suicide at another location.
Many attacks that end when the shooter flees are spontaneous; for example, one may stem from a dispute that escalates when one party pulls out a gun.
In San Antonio in 2019, a man had a disagreement with the staff of a moving company, then opened fire on the company’s workers before running away. The police apprehended him later without incident. Last year, a man who was kicked out of a nightclub in Wichita, Kan., after a fight returned and shot six people, killing one. He fled the scene, and the police arrested him a month later in Phoenix.
Because these kinds of attacks are generally not planned, attackers may be more inclined to flee in hopes of getting away, Mr. Martaindale said.
But many premeditated attacks also ended when the attacker or attackers left the scene. After a gunman shot 34 people in 2018 at Marjory Stoneman Douglas High School in Parkland, Fla., he dropped his weapon and fled the school with other students, bypassing police officers who had arrived on the scene but had not yet attempted to intervene. After fleeing, the gunman walked to a Walmart, bought a drink at a Subway and stopped at a McDonald’s before he was apprehended by the police on a residential street.
In El Paso, a gunman shot 45 people, killing 23, in a Walmart before fleeing the scene. The police arrested him down the road without incident.
Why attackers stop themselves is a hard thing to know, but Mr. Lankford, after studying shooters for years, has some guesses. One is that sometimes, shooters plan for a dramatic confrontation with the police that does not happen. Another possibility, he said, is that the reality of their actions sets in.
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The Uvalde Consolidated Independent School District has a 21-point security plan that ordered school doors locked at all times and required students to practice lockdown drills "on a regular basis," in the event of a mass shooting, reporter Insider.
But during the school shooting on May 24 that left 19 children and 2 teachers dead, many of the measures and procedures designed to prevent bloodshed may have hampered police's response as officers took over an hour to confront the shooter while students inside the classrooms begged for help.
Interviews given by the school's embattled police chief and a teacher who survived the massacre reveal how the precautions against mass shootings were turned against police.
Locked doors kept police from entering the classroom where the shooter was barricaded
The gunman entered classrooms 111 and 112 and opened fire at about 11:33 a.m. He locked the doors to the adjoining rooms, leaving himself inside — alongside his victims — for over an hour before police eventually entered and shot him dead.
School district police chief Pete Arredondo — who has faced criticism amid accusations he delayed the tactical response to the shooting — told the Texas Tribune in an interview published on Thursday that UCISD officers don't carry master keys to school classrooms.
He said officers had to wait for school staff to provide multiple rings of keys to try to open the door.
"I was praying one of them was going to open up the door each time I tried a key," Arredondo told the Tribune.
It took more than an hour for Arredondo to receive a key that finally opened the door, the Tribune reported.
As they were waiting for keys for approximately 78 minutes, Arredondo said officers on the scene worked to evacuate over 500 other students and teachers from the building to lead them to safety.
"It's not that someone said stand down," Arredondo's lawyer, George E. Hyde, told the Tribune. "It was 'Right now, we can't get in until we get the tools. So we're going to do what we can do to save lives.' And what was that? It was to evacuate the students and the parents and the teachers out of the rooms."
Reinforced classroom doors made it impossible for police officers to break in without a key
Aside from locks, reinforcements on the doors also prevented police from getting through to the classrooms.
Arredondo told the Tribune that classroom doors at Robb Elementary are "reinforced with a hefty steel jamb, designed to keep an attacker on the outside from forcing their way in."
But that same measure made it impossible for Arredondo and other officers who entered the school to kick in the door and enter without a key, he said.
Additionally, experts told the Tribune that breaking through windows to get into the classroom would have caused more casualties.
Turned-off lights kept cops from seeing into the classrooms
The Standard Response Protocol, a shooting safety guide used by the Uvalde school district, recommends teachers and students turn off classroom lights to prevent a shooter from seeing students and teachers hiding inside.
The Tribune reported that the lights were off in classrooms during the Robb Elementary shooting.
Arredondo told the Tribune that because the lights were off, cops had little visibility inside the classrooms, making it difficult to pinpoint the shooter's exact location.
It also made it more difficult to assess whether the teachers and students inside were alive, the Tribune reported.
One Robb Elementary teacher said active shooting training set his students up 'like ducks' for the shooter
Robb Elementary teacher Arnulfo Reyes, whose 11 fourth-grade students were all killed in the May 24 shooting, told "Good Morning America" that active shooting training protocol set the children up "like ducks" during the shooting.
Reyes said his students were watching a movie in class following an end-of-year celebration when they heard gunshots.
He told "Good Morning America" that he told the students to hide under a table and pretend to be asleep. The gunman then came into the classroom and opened fire, shooting Reyes twice and killing the students.
"We trained our kids to sit under the table, and that's what I thought at the time. But we set them up to be like ducks," he said, adding that he "tried his best" and tearfully apologized to the families of his students.
Gov. Abbott wants more active shooter training in schools
Texas Gov. Greg Abbott has called to deploy "nationally recognized active shooter training to all Texas school districts, prioritizing school-based law enforcement," in the weeks since the shooting. He said training on these protocols should begin before the 2022-2023 school year.
Abbott said that more training "will help law enforcement on school campuses better respond to these situations."
But the governor's office did not respond to multiple requests for comment asking if the training would be updated since police and Reyes have said the training contributed to making the shooting worse.
Reyes told "Good Morning America" that he believes training won't help.
"It all happened too fast. Training, no training, all kinds of training — nothing gets you ready for this," Reyes told "Good Morning America" in an interview that aired Tuesday. "You can give us all the training you want, but laws have to change."
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The NACDL published a report last August warning the public that, without the legal protections under Roe v. Wade, thousands of abortion laws could lead to a new chapter of mass incarceration, reported NPR.
The invasion of privacy alone is a big concern to the NACDL. Anyone who needs or wants an abortion outside of the legal limits of their state is not only a target for criminal charges, but risks implicating others, too — by confiding in friends or family, crossing state lines for procedures, or even using a transportation app to get to an appointment.
"Not just fines. We're talking about prison time," Wayne said. "We're talking about minimum mandatory sentences — aiding or abetting someone who gets ultimately charged with manslaughter or murder, which is a life sentence."
And for those who think a future of mass incarceration is too unlikely, Wayne points to the War on Drugs, starting in 1971.
"Suddenly people who were being prosecuted for small amounts of drugs were now involved in larger and greater conspiracies with minimum mandatory sentences," Wayne said. "People were looking at life sentences and still remain incarcerated to this day. You have to ask yourself, what lessons did we really learn?"
Who will actually pay the price?
The NACDL has tens of thousands of members. Actual feelings and opinions on abortion vary within the organization, as expected. But that's not what this collective red alert is about.
Wayne says that despite a range of personal views, the membership as a whole is concerned about invasion of privacy, government overreach, and a massive stretch on legal resources if a wave of abortion-related criminal charges hits the U.S.
And that pain won't be distributed equally.
"Whenever you're talking about overcriminalization, you're talking about money," Wayne said. "Rich people will always be able to lawyer up. They will always have access to attorneys. Poor people will be left behind."
She points to an already overwhelmed public defender system, which people can't access until after their legal troubles have started.
"I don't get a lawyer, if I'm poor, until I'm actually charged with a crime in this country in most jurisdictions," she said. "So I have to wait until that moment until I get charged. If I have money, access to counsel, I get advice on the front end of being able to perhaps avoid the consequences that I would face if I didn't have money."
The perfect victim
A future without Roe v. Wade ultimately leads back to that courtroom and jury, where the task at hand becomes navigating perception. The burden of being "the perfect victim" is nothing new when it comes to cases of harassment, sexual assault and domestic violence.
"To be a perfect victim of sexual assault, human trafficking or intimate partner violence, you cannot also struggle with addiction, poverty or mental illness," wrote Amanda Rodriguez, a former federal prosecutor and the executive director of Baltimore's rape crisis center, TurnAround Inc, in a 2021 op-ed for the Baltimore Sun. "To be a perfect victim, you cannot accept a drink, engage in commercial sex or walk alone at night. You cannot wear tight clothes or have a criminal record. You cannot be human."
Except with a criminalized abortion, the "victim" isn't pressing charges. They're fighting them.
"At the end of the day, it's going to be the bias going into the courtroom," Wayne said. "The bias dealing with the district attorney who has preconceived notions of their own about how these cases should be prosecuted, the judges who oversee these cases and how they feel — and then ultimately go to the jurors' bias."
And that's a main focus of NACDL's training at the moment: preparing to help clients who have been charged with abortion-related crimes look sympathetic and relatable to a group of their peers (wherein the degree of difficulty varies, depending on your race.)
But in some cases, that might not be enough. While more than a dozen states have trigger laws that would immediately go into effect if Roe is lifted, restrictive abortion bans already exist in many states — some without exceptions for rape, incest or to save the life of the mother. And the Supreme Court might be about to grant state lawmakers the freedom to ban abortion however they want.So when a jury is asked to determine whether someone broke a law post-Roe, even a "perfect victim" might still be a guilty one.
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In the wake of the Uvalde, Tex., mass shooting, some Hollywood storytellers are questioning the film industry’s love affair with guns. There’s one thing these filmmakers and showrunners could do to try to stem the tide of gun violence: stop sanitizing what guns do to human bodies, writes Sonny Bunch in the Washington Post. Hollywood should step up and show what journalists generally can’t depict, be it the victim of a mass shooting identifiable only by DNA or the aftermath of a suicide carried out with a gun.
Working in concert with the Brady Center to Prevent Gun Violence, more than 200 writers, directors, and producers such as J.J. Abrams, Mark Ruffalo, and Adam McKay recently signed on to an open letter calling for a period of introspection into how guns are used on-screen.
“Cultural attitudes toward smoking, drunk driving, seatbelts and marriage equality have all evolved due in large part to movies’ and TV’s influence,” the letter says. “It’s time to take on gun safety.”
Some specific suggestions: Show gun owners making use of gun safes; limit the portrayal of children and guns in the same scenes; and consider whether guns are necessary in any given scene.
This deliberation can’t hurt, but it probably won’t do much good either: Of the 45,222 people who died of gun-related injuries in 2020, 54 percent of those deaths were a result of suicide, 43 percent were murders, and roughly 1 percent were from accidents.
The extent to which on-screen violence influences off-screen behavior has bedeviled the film industry for as long as scolds have been trying to shut projectors off. The letter writers are quick to brush this aside, yet their hope that on-screen depictions of “responsible gun ownership” can influence off-screen behavior seems to open the door to an admission that irresponsible gun ownership can do the same.
The debate on this matter is long with much evidence on both sides. Some studies suggest exposing children to violence can have long-lasting effects; others suggest TV is less important than socialization. I do not propose to resolve it here.
However, as someone who owns a gun, watches a lot of violent movies and enjoys the occasional first-person shooter video game, I’m skeptical of claims that people in the aggregate are driven to violence by what they see on-screen. Yes, a certain number of already-deranged people are inspired by what they see in media — your John Hinckleys or your Matrix killers. But there’s little Hollywood can, or should, do to account for random crazies.
If “America’s storytellers” really want to change public perception of guns, they should consider being more honest on-screen about what bullets do to bodies. The issue isn’t really on-screen violence — it’s bloodless on-screen violence, the sort of violence in which guns fire and bodies simply fall to the ground in what could just as easily be sleep as death.
Journalist Jason Fagone in 2017 talked to trauma surgeons who deal with the reality of gun violence — mangled limbs, severed arteries, invasive and repeated surgeries — as well as victims. And that reality is sometimes simultaneously surreally and banally gruesome.
One man shot in the abdomen, Fagone wrote, “spent the next 11 months in the hospital, immobilized in bed, with an open wound down the front of him that had the circumference of a basketball. It got to the point where it was a normal thing for him to look down and think, oh, those are my intestines, there they are.”
Realistic violence in movies is often jarring when we see it because we see it so rarely. The only time I’ve seen an audience watching an installment of the “John Wick” franchise flinch had nothing to do with the abundance of gunplay. Early in the third film, a brawl ends with the titular assassin jamming a knife into the eye of an assailant. It’s intimate, bloody and horrifying — more so than every gun shot that preceded it.
If television and film luminaries really want to change the discussion of guns, they’ll pursue a bloodier type of filmmaking. Make standard the use of squibs — little explosives that create geysers of fake blood — during gunplay. These practical effects not only heighten the impact of the violence we see but also slow down productions that rely too greatly on cheap kills, causing a bit more thoughtfulness about when on-screen violence should be deployed.
If Hollywood wants to help reduce suicides, which constitute the majority of gun-violence deaths in the United States, it should show people what happens when a bullet goes through a head. Show the aftermath. The cleanup. That it’s not like a light softly going out, that it’s an extremely violent act, one that will leave a mess for your loved ones.
Some have suggested we need an “Emmett Till moment” after Uvalde showing photos of the victims and what the bullets did to their bodies. The sentiment is understandable, as is the disgust or the concerns about exploitation such a suggestion generates.
Those qualms wouldn’t apply to a fictionalized-but-realistic portrayal of such horror, however. And these images could help the public understand what gun violence really means.
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