Imagine being accused of a crime. You’re hauled into a police station. Your repeated requests for a lawyer go unheeded. You spend hours at the precinct because the police won’t let you leave. At no point during the encounter are you told about your constitutional rights, commonly known as Miranda rights. The case against you is later dropped. 

Can you sue in civil court for not being read your rights? Not anymore, the U.S. Supreme Court ruled last month. 

Mawuli Mel Davis

“There’s no civil [remedy] after [a person’s] been injured. They may have gone to trial. They may have even been falsely convicted. And the statement was illegally obtained,” Atlanta civil rights and criminal defense attorney Mawuli Mel Davis told Atlanta Civic Circle. “And there’s no pathway to remedy that injury.”

The Supreme Court decision weakened a key part of the Fifth Amendment, the constitutional shield that gives you the right not to incriminate yourself. The high court ruled that failing to read someone their rights doesn’t violate the Fifth Amendment, and so police officers can’t be sued for failing to issue Miranda warnings before interrogations.

Davis said the decision is detrimental because it could further embolden law enforcement in the future.

“It removes the civil deterrent for law enforcement not to violate people’s Miranda rights,” he explained.This will be discussed in police precincts all across the country. The message it sends is ‘Hey, I can, as a police officer, violate this long-established right and not have any civil consequences.”

Davis is quite familiar with the legal terrain as the founding partner of Davis Bozeman Johnson Law. For nearly three decades, he’s represented victims of police brutality and people who’ve been falsely accused of crimes. He has also represented activists in the Occupy movement, Moral Monday, and the Black Lives Matter movement. 

The Miranda warning is a nearly 60-year-old requirement that police must inform anyone they’re arresting of their constitutional rights. 

The name stems from the 1966 Miranda v. Arizona case in which the Supreme Court held that you can’t be questioned when detained by police until you’re told of your rights to remain silent, consult an attorney, and have an attorney present during questioning by police. You also have the right to have an attorney appointed if you can’t afford one.

The Supreme Court’s June 23 ruling in Vega v. Tekoh now gives civil immunity to police officers who fail to Mirandize people.

The decision stems from a 2014 incident when Terence Tekoh was accused of sexually assaulting a patient at the hospital where he worked. Los Angeles Sheriff’s Deputy Carlos Vega questioned Tekoh alone in a small room at the hospital and, according to Tekoh, coerced him to write a false confession after physically preventing him from leaving, ignoring his request for an attorney, and threatening to deport Tekoh and his family back to Cameroon. 

Both men agree that Tekoh was not read his rights. Tekoh was subsequently arrested, tried, and acquitted by a California jury.

“He should have been able to proceed with a civil lawsuit against the officer for intimidating him,” Davis said because the officer violated his right to remain silent or have a lawyer while in police custody, but the Supreme Court just ruled otherwise. 

“What this amounts to is that when your Miranda rights are violated, you can’t pursue a civil claim. Civil lawsuits are a form of deterrent against the violation of people’s constitutional rights, because [police] know that there can be some consequences civilly against them. That no longer exists as a result of this [Supreme Court decision].”

Davis spoke to Atlanta Civic Circle about the impact of the high court’s decision on average citizens, lawyers, and democracy. The conversation has been edited for clarity and length.

Tammy Joyner: At what point do police have to read you your Miranda rights during an encounter? Is it if they just want to ask questions or only if they’re arresting you? 

Mawuli Mel Davis: The police are only required to read your Miranda rights if you are in custody. That means you are not free to go and they are questioning you. So if you’re arrested, but they don’t ask you any questions, they don’t have to read you your Miranda rights.

On the flip side, if the police just walk up to you on the street and start what we call a consensual conversation–where it’s just, ‘Hey, can I ask you a few questions?’–if you’re not handcuffed, or in the back of a police car, or locked in a police station, and you’re free to go, they do not have to read you your Miranda rights. 

The question we encourage people to ask before answering any questions is: ‘Excuse me, officer, am I free to go?’ 

If they say yes, walk away. Don’t answer any questions. If they say no, then you say: ‘I would like to have a lawyer present to answer any of your questions.’

We discourage people from consenting to searches or giving statements because we have seen instances where people try to be helpful and they end up being arrested and charged for things they did not do.

What is the biggest takeaway from the Supreme Court ruling on Miranda rights? 

It takes away the ability of someone who has been wronged as it relates to their Miranda rights. You don’t have a remedy to address it. They may have gone to trial. They may have even been falsely convicted and the statement was illegally obtained. Yet, there’s [now] no pathway to remedy that injury. That cuts against our civil rights as citizens.

Does it weaken an individual’s protection during an encounter with the police?

It does not. Legally, when you encounter police, the right remains. The problem is, if it is violated, there’s no civil remedy for it.

How does the Supreme Court ruling on Miranda change a person’s interaction with the police? 

The right itself remains in place. It can be asserted and should be asserted at all times. 

We teach young people to know their rights. We’ve been teaching it for over a decade. And we are always very clear that no matter what, young people–people in general–should not engage with law enforcement or give statements without an attorney. That’s basic, whether you’re walking on a street or they stop you in school. You have the right to remain silent. So, that has not changed. 

But the civil liability when that is violated has changed. When engaged with law enforcement, we encourage people not to consent to searches and not to provide statements, because those are rights that should be protected.

Does the Supreme Court ruling impact your ability to help your clients?

It’s a tool that has been taken away from both lawyers and citizens to hold law enforcement accountable for police misconduct. Every time a tool like that is taken away, it emboldens law enforcement and jeopardizes the liberty of everyday citizens. 

What advice do you give to your clients in the aftermath of the recent Supreme Court rulings? 

I encourage them to be intentional. The sands of justice are shifting. We have to do the work of regaining our footing and making sure we’re able to organize and push back against the increasingly right-wing approach to law and order–and to the justice system.

Those who want to see a more democratic, equitable society have to be willing to do the hard work of organizing. It will not happen by accident, or by relying on humanity and the righteousness of individuals who’ve never demonstrated such.

Is this the biggest change to Miranda that you’ve seen?

Yes. This reiterates the importance of judges’ appointments. Judges have an incredible impact at the local level, and, obviously, at the national level. 

Elections matter because they determine lifelong appointments on the highest court in the land. You have to be so very careful during these processes, as we have recently seen with Roe v. Wade.

Which brings us to the broader issue. How do you interpret the Supreme Court’s other recent rulings–namely Roe v. Wade–as far as people’s civil liberties, personal rights and privacy?

This is a significant shift in a much more conservative direction which has the potential to reshape the landscape of our freedom and our rights in this country for the next 50 years. These decisions are dangerous for what’s left of democracy.

HOW TO STAY SAFE WHEN STOPPED BY THE POLICE 

  • Don’t be confrontational. Stay calm. Don’t raise your voice. Don’t become animated.
  • Don’t run or resist. Running creates a risk that leads to other dangerous situations.
  • Know everything you say can and will be used against you.
  • Make sure your phone is charged and has enough memory at all times so you can record interactions with the police. Record the incident from a safe distance.
  • If you’re stopped, ask: “Officer, am I free to go?”
  • If the police try to search you, tell them: “I do not consent to a search.”
  • If asked for a statement, tell them: “I do not consent to a statement without an attorney being present.”

Source: Attorney Mawuli Mel Davis

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