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Monday, December 02, 2002

Is Playing the Bad Cop Actionable?-I got this story from Eileen, who had read this Yahoo piece this morning; here's a more subdued LA Times piece on the case. As I understand it, you had Oxnard cops doing the bad cop interrogation routine on a badly wounded suspect, neglecting to mirandize him. They didn't use the resulting confession in court, but the suspect, Oliverio Martinez, is now suing for, among other things, "coercive questioning." The Supreme Court will be hearing the case Wednesday; the 9th Circuit (natch) sided with Mr. Martinez. Despite a lot of the verbiage saying that overruling the lawsuit will do a number on Miranda, I don't think that would be the result. A pro-Oxnard ruling will give cops a little more leeway in questioning suspects in that they're less likely to get sued if they do a Belker imitation ("do you want to go peacefully, or do you prefer internal bleeding?") while collaring a perp. Physical police brutality is still actionable; Rodney King got a nice chunk of change from the LAPD. The Miranda protections against the admissibility of confessions without reminders of one's 5th amendment rights is still intact. However, ruling in favor of the police will allow them to aggressively question people without getting a civil suit. However, if bad cop questioning is actionable, is it actionable because it lacked a Miranda warning? If Martinez wins, the next rash of lawsuits will be for people who got the bad cop treatment after getting mirandized. This is a trial lawyer's erotic fantasy and a police chief's nightmare; the cops have to turn into Mr. Rodgers as they interrogate people for fear of getting sued. Where would the line be for coercive questioning? In this case, you had a badly wounded suspect getting treated rudely by the cops; that makes for generous juries. What treatment is sufficiently coercive as to be actionable? The Supreme Court will have to deal multiple permutations of people treated to varying degrees of harshness prior to getting mirandized. I could see O'Connor and Kennedy siding with Martinez, but I think this will go 5-4 for Oxnard. This creates a lousy precedent if Martinez wins, adding billions of dollars to taxes to pay for all the lawsuits, and a negligible downside if Oxnard wins. It doesn't reward sloppy policework, but instead would opt not to punish aggressive questioning. [Update 8PM-Volokh was on it a bit earlier, and thinks its at least 7-2, and likely 9-0 for the police.]

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