Undermining Rights, Legitimizing Discretion: The Troubling Legacy of New York v. Quarles and the Imbalance in Judicial Experience

-- By AlexHeycke - 23 Apr 2024

New York v. Quarles and the Public Safety Exception

In New York v. Quarles, the Supreme Court held that our 5th Amendment Miranda right is subject to a public safety exception: when there is a need to protect the public or police from any immediate danger, pre-_Miranda_ statements–and evidence gathered on their basis–are admissible evidence against the accused.

Why would you discuss at length a Supreme Court case, or any case, without linking to it?

Apart from crucially undermining what should be a categorical right and betraying ,

What categorical right? Miranda warnings are a method for curbing police elicitation of involuntary confessions. There is no right to receiver Miranda warnings, as opposed to other means of securing against involuntary confession (if, for example, you are arrested in the presence of your lawyer who remains present for questioning), and a confession found to be involuntary is always subject to suppression. Having received warnings wouldn't make a confession following subsequent coercion admissible, right?

the Quarles court reflects–and greatly feeds into–another problem: the extreme deference to police discretion in our constitutional law. Although the court described the threat to public safety as needing to be “objectively reasonable,” it immediately softened the objectiveness of its standard by noting that its holding would “free [officers] to follow their legitimate instincts.” While there was some precedent in allowing some level of error set by cases like Adams v. Williams and Terry v. Ohio (essentially applying a reasonable person standard with some room for error), Quarles was the first case to make such a wholesale, explicit endorsement of police’s ability to generally make the correct decisions while acting on mere whim.

Why are you not linking the cases you refer to?

Troubling Implications of Quarles

Such an endorsement is problematic for two reasons. First, and most obviously, it justifies over-intrusive policing on a faulty premise. It is now well established that the instincts of police officers are often incorrect: they operate on various heuristics that correlate poorly with the presence of an actual threat, such as race. And as the Stanford Prison Experiment established in 1971, ordinary, well-intentioned people can still behave ruthlessly towards others under certain circumstances, namely, being in a position of clear authority over them. Law enforcement officials, who often have such a degree of authority and power of the communities they police, coupled with some degree of insulation from the consequences of their actions via qualified immunity, are thus the last group whose authority to act on vague notions of instinct should be expanded.

A confusion between holding and dictum. The case is about what happens after the cop shouts "Where's the weapon?" There's no doubt that the police are trained to do that, or that the training is correct. Reference to instinct is neither factually precise nor legally relevant.

Second, the decision serves an expressive function, legitimizing the use of police discretion in the eyes of the public.

It is legitimate for the cop to shout, "Where's the weapon?"

While people generally form their own opinions, most of us also outsource our judgments to some extent: if a credible appearing actor makes a certain assessment, we often accept the truth of this assessment. While clear evidence to the contrary might prevent us from following its lead, many people are not presented with such clear evidence of the fact that excessive police discretion is an issue. The decision of an institution that they believe to be a bastion of detached, objective decisionmaking (a notion that I mistakenly possessed before entering law school)–thus could be enough to sway the opinions of the ambivalent. This is especially the case in the age of algorithmically tailored social media feeds where the information one is presented with can range from entirely true to hardly reflective of reality at all.

What Can Be Done?

Finding a comprehensive solution to this problem with such complex and interwoven causes is beyond the scope of this paper. But perhaps one of the most easily identifiable causes of this troubling trend–the undoing of which would be a crucial step towards a solution–is the massive imbalance in the federal judiciary between former prosecutors and public defenders. Until Ketanji Brown Jackson joined the Supreme Court, there had not been a justice with experience as a public defender on the Court since Thurgood Marshall. By comparison, four justices currently on the Supreme court have served as prosecutors at some point in their career. The imbalance is equally egregious in lower federal courts, where former prosecutors outnumber former public defenders 5 to 1. Among Trump appointees, this ratio was over 10 to 1. While in an ideal world, where each judge possessed Felix Cohen’s dialectic hydraulic interpretation press, such an imbalance might not be an issue, this is not such a world. Judges are human, and thus susceptible to a wide range of cognitive biases. It’s entirely inconceivable that someone who has spent a large part of their career advocating for deference to the police, operating on the assumption that police’s instincts can be trusted, can evaluate such topics with detached impartiality. To temper the influence prosecutorial bias, it is necessary to increase the representation of public defenders in the federal judiciary. Only then will there be a chance to materially undermine Quarles and its legacy

As with the first essay, aversion to citation is a flaw. You don't even link to the cases you discuss. Aside from PR from one libertarian "think" tank, there's no literature at all, and no legal material backs you at any point, which is not good law school practice..

If Quarles has bad social or legal consequences, forty years' experience should have revealed them. One would think that the first step would be to Shepardize Quarles and find out how often it is relied upon and in what sorts of cases. One might then look to see what the law review literature about the Fifth Amendment jurisprudence since 1984 has to say. After those basic research steps, I would think, enough learning has been done to serve as a basis for writing.

The essence of the matter, if one actually reads Quarles, is that the defendant was already subdued and in custody, in a space without bystanders, when the arresting officer asks "where's the gun?" The training is still correct: locating the weapon is a requirement for both public safety and the safety of the officers. The police behavior is correct. But it is possible, given that the defendant was already handcuffed and could not himself pose a threat, that the warning should have preceded the question. That raises a factual question of voluntariness, which should be decided by the jury.

TM's dissent raises the concern of an increase in just these sorts of factual dispositions, as matters reach juries on voluntariness that could be resolved by a bright-line application of Miranda. My impression is that didn't happen. But you can take the opportunity to learn, and then we'll both know more than we did before.

My reading, because this is a Court with whose dynamics I am personally familiar, is that this is another example of failure of diplomacy between the Marshall and O'Connor Chambers. Brennan assigned the dissent to TM, in part no doubt hoping that he could bring SOC around, which didn't quite work. As usual in that situation, Harry Blackmun's pro-prosecution "instincts" are the only thing holding the majority together. If TM brings SOC fully over, it may remain a 5-4 "bad Harry" case, or that may be enough to bring him over as well. That's the job for the Marshall clerk. I know whose case it was, and therefore why that didn't happen.

Harry Blackmun was never a prosecutor. In Miranda v,. Arizona, the US Government sought time at oral argument to present its position, that no Fifth Amendment violation had occurred. The Solicitor General argued personally. If you don't know who the SG was, you can see in the US Reports.

That's what makes the second swerve in the draft, towards the sociological prosopography of federal judges, unconvincing. Felix Cohen asks "How do judges decide cases of a certain kind," not "What can we assume about how judges decide cases of a certain kind?" Judges who have never been prosecutors may be "deferential" to the government. To police, I think it is fair to say, judges overall afford scarce deference. Edward Weinfeld, for whom I clerked, was not a bad example of the median judicial attitude, in my opinion. Like most judges, he had never been a criminal practitioner at all. His view was that if the US Attorney's office (which from his point of view was the relevant actor, not, for example, the FBI or the DEA) had exercised diligence and judgment, had crossed its T's and dotted its I's, it deserved to get its case before a properly-instructed jury. That seems to me, in a democratic society committed to the rule of law, approximately what we want. How would one actually go about distinguishing, from among judges who act more or less in that fashion, the former prosecutors form the former defense counsel, from those who were neither?

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