The Right to Remain Silent: The Latest Assault Comes From the U.S. Supreme Court
By John W. Whitehead & Nisha Whitehead
July 21, 2022
We are witnessing the gradual dismantling of every constitutional principle that serves as a bulwark against government tyranny, overreach and abuse. As usual, the latest assault comes from the U.S. Supreme Court. In a 6-3 ruling in Vega v. Tekoh, the Supreme Court took aim at the Miranda warnings, which require that police inform suspects that they have a right against self-incrimination when in police custody: namely, that they have a right to remain silent, to have an attorney present, and that anything they say and do can and will be used against them in a court of law.
Although the Supreme Court stopped short of overturning its 1966 ruling in Miranda v. Arizona, the conservative majority declared that individuals cannot hold police accountable for violating their Fifth Amendment right to remain silent.
By shielding police from lawsuits arising from their failure to Mirandize suspects, the Supreme Court has sent a message to police that they no longer have to respect a suspect’s right to remain silent.
In other words, concludes legal analyst Nick Sibilla, “the Supreme Court has effectively created a new legal immunity for cops accused of infringing on the Fifth Amendment’s protection against self-incrimination.”
Why is this important?
In totality, the rights enshrined in the Fifth Amendment speak to the Founders’ determination to protect the rights of the individual against a government with a natural inclination towards corruption, tyranny and thuggery.
The Founders were especially concerned with balancing the scales of justice in such a way that the innocent and the accused were not railroaded and browbeaten by government agents into coerced confessions, false convictions, or sham trials.
As Benjamin Franklin insisted, “It is better a hundred guilty persons should escape than one innocent person should suffer.”
Two hundred-plus years later, the Supreme Court (aided and abetted by the police state, Congress and Corporate America) has flipped that longstanding presumption of innocence on its head.
In our present suspect society, “we the people” are all presumed guilty until proven innocent.
With the Vega ruling, we have even fewer defenses for warding off government chicanery, abuse, threats and entrapment.
To be clear, the Supreme Court is not saying that we don’t have the right to remain silent when in police custody. It’s merely saying that we can’t sue the police for violating that right.
It’s a subtle difference but a significant one that could well encourage police to engage in the very sort of egregious misconduct at the heart of the Vega case: in which a police officer investigating a sexual assault isolated a suspect in a small, windowless room; refused him access to a lawyer or work colleagues; accused him of molesting a female patient; threatened him with violence; implied that he and his family would be deported; and terrorized him into signing a false confession dictated by the cop.
Although Terence Tekoh was eventually tried and acquitted, the Supreme Court refused to hold police accountable for browbeating an innocent man into making a false confession.
The Vega ruling threatens to turn the clocks back to a time when police resorted to physical brutality (beating, hanging, whipping) and mental torture in order to obtain confessions from suspects without ever informing them of their Fifth Amendment rights.
By largely doing away with Miranda, the Supreme Court has made its present position clear: anything goes if you’re a cop in the American police state.
Indeed, pay close to attention to the Court’s rulings lately, and the broader picture that emerges is of a judiciary that is playing fast and loose with the rule of law, picking and choose which rights to uphold and which can be discarded, in order to expand the power of the police state at the expense of the people’s rights.
If left unchecked, this constitutionally illiterate ruling will open the door to a new era of police abuses.
By shielding police from charges of grave misconduct while throwing the book at Americans for violating any of a rapidly expanding assortment of so-called crimes, the government has created a world in which there are two sets of laws: one set for the government and its gun-toting agents, and another set for you and me.
This is how perverse justice in America has become, and it’s happening all across the country.
Incredibly, while our own constitutional protections against government abuses continue to be dismantled, a growing number of states are adopting Law Enforcement Officers’ Bill of Rights (LEOBoR)—written by police unions—which provides police officers accused of a crime with special due process rights and privileges not afforded to the average citizen.
In other words, the LEOBoR protects police officers from being treated as we are treated during criminal investigations: questioned unmercifully for hours on end, harassed, harangued, browbeaten, denied food, water and bathroom breaks, subjected to hostile interrogations, and left in the dark about our accusers and any charges and evidence against us.
Now every so often, police officers engaged in wrongdoing are actually charged for abusing their authority and using excessive force against American citizens. Occasionally, those officers are even sentenced for their crimes against the citizenry.
Yet in just about every case, it’s still the American taxpayer who foots the bill.
In fact, police officers are more likely to be struck by lightning than be held financially accountable for their actions.
No matter which way you spin it, “we the people” are always on the losing end of the deal.
With the Supreme Court’s ruling in Vega v. Tekoh, the scales of justice have shifted out of balance even more.
Brace yourselves: as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, things are about to get downright ugly.
Editor’s Note: John Whitehead is an Attorney and Author who has written, debated and practiced widely in the area of Constitutional Law, Human Rights and Popular Culture. John Whitehead's Commentary are his views and he is open for discussion, he can be contacted At: firstname.lastname@example.org. Information about The Rutherford Institute is available At: www.rutherford.org