Social media exploded last week when Ferguson police detained two reporters covering the protests that erupted following the shooting death by police of 18-year-old Michael Brown. They were not held for long.
After their release and ahead of their respective stories, the reporters—Wesley Lowery of The Washington Post and Ryan Reilly of The Huffington Post—took to Twitter to describe their ordeal.
A concerned user asked Lowery whether he had been read his Miranda warnings, and he said no.
Then this happened:
Lowery was thankful for the clarification, but Twitter wasn’t. People were unconvinced that an absence of Miranda posed no problems—that it is “well-settled” that police must give you the warnings or else your rights are being trampled.
In the world of Law & Order, perhaps.
In real life and under Supreme Court precedent, police do not violate your constitutional rights if you’re arrested and forget to read you Miranda. They may even purposefully skip the ritual, and there’d still be no violation. A whole trial, guilty verdict, and sentence may follow, and you’d still be out of luck.
The reason is as simple as it is unsatisfying: Miranda is not a right. You can’t sue under it. Police are not required to give it. A court will throw out your civil-rights lawsuit if you claim you weren’t read it.
Miranda only does one thing: It protects you from saying something that will be used against you in court. In the words of the Constitution, no man can be “compelled . . . to be a witness against himself.”
That is a constitutional right: the Fifth Amendment right against self-incrimination.
It is strongly recommended that police officers give the warnings because people tend to say things they later regret in the presence of law enforcement. “Somebody put that in my pocket,” for example. Any damning statement that carries the risk of putting someone in jail for a very long time cannot be used against that person.
That’s why every item on the Miranda laundry list matters. Every one of them is a check—a “prophylactic” shield, in Supreme Court language—against the possibility of self-incrimination.
None of that applies to Lowery or Reilly. They hadn’t committed a crime. They weren’t charged. At that point, the risk of self-incrimination vanished, and so did the import of Miranda. Whatever Lowery or Reilly may have said in police presence won’t ever be used against them. The government won’t threaten them with loss of liberty. No danger of a coerced confession will exist. Other claims may arise out of this incident—unlawful detention, maybe even battery—but these have nothing to do with Miranda.
Since Lowery and Reilly were detained, a number of other journalists have followed suit. But no Miranda, by itself, doesn’t give any of them a right to sue.