Update (4/22/13): Boston.com is reporting that Tsarnaev was charged in a sealed complaint and that a magistrate judge conducted his initial appearance at the BI. Assuming that the hearing went as initial appearances are supposed to go, the magistrate judge would have advised Tsarnaev of his rights, which brings the Miranda aspect of this story to a conclusion.

Second Update: Here are the Complaint and the accompanying Affidavit.

Paul Revere

City On A Hill

I live in Boston—in Roslindale to be precise—and so I was among the maybe one million people in the “shelter-in-place” area on Friday who awoke to requests from our governor to stay inside with our doors locked. Despite some of the comments I’ve read on Twitter and elsewhere, this didn’t feel like “martial law” or anything of the sort. We mostly like and trust our thoughtful, well-spoken governor, Deval Patrick, our inarticulate but crafty mayor, Tom Menino (did anyone outside of Boston understand what he was saying at the several press conferences?) and our no-nonsense Commissioner of Police, Ed Davis. And so if they say that it’s important to public safety for us to stay indoors and for the MBTA (our public transportation system) to be shut down, people are willing to do as asked and to save questions for another day.

But now it is another day, and with the emergency over and the two suspects either dead or in custody (thank you to our police, the FBI, and others!) it’s appropriate to reflect on our experience. Here is what I’ve been thinking about—I would love to know your thoughts, too.

The Arrest

It seems clear that the government intends to try Tsarnaev in the District Court rather than trying to try him before a military tribunal. Good—the alternative would, I think, be unconstitutional. There’s another question—a separate question, which is a point that not everyone has understood—about whether the government must advise Tsarnaev of his rights, and if so, when. Does the government have to advise him of his rights upon arrest? After arrest but before questioning? After some questioning? Never?

The answer can’t be “never.” Under Rule 5 of the Federal Rules of Criminal Procedure, Tsarnaev must be taken before a magistrate judge for an initial appearance “without unnecessary delay,” and at that appearance, the magistrate judge will inform him of the charges, of his “right to retain counsel or to request that counsel be appointed if [he] cannot obtain counsel” and of his “right not to make a statement, and that any statement made may be used against” him. So at the latest, the court itself will inform Tsarnaev of his right to counsel and his right to remain silent at the initial appearance.

The answer also can’t be “upon arrest.” Miranda is all about interrogation without being first advised of one’s rights, not about arrest. The Miranda warnings simply have nothing to do with arrest per se, nor is there any reason to think that an arrest becomes somehow invalid or illegal in the absence of the warnings.

Now, there is a real question about whether the recognized public safety exception to the Miranda rule applies here, but it seems to me that if the government wants to ask Tsarnaev whether others, besides himself and his brother, were part of the conspiracy and might still pose a threat to the public, or other questions aimed at determining whether there is still some threat, it should be free to do so without warning Tsarnaev of his rights. It seems the government wants to push the envelope on this “public safety” exception, and maybe it is wrong to do so, and maybe folks are right to criticize it. But I am not overly concerned about this point, for a few reasons. First, Tsarnaev has his rights whether or not the government advises him of them, so even if the government does ask such questions, Tsarnaev can refuse to answer. (Yes, I understand that he may not know his rights, or he may mistakenly believe that his right to remain silent only comes into existence once he has been informed of his rights). Second, even if the government questions Tsarnaev without informing him of his rights, and even if its questioning is not within the scope of any exception to Miranda, Tsarnaev will be prejudiced only if the government later seeks to introduce his pre-Miranda-warning statements as evidence against him, which may never happen. Third, the rule of Miranda is merely prophylactic. The rule merely requires the exclusion of evidence obtained in violation of the rule. Given the serious threat to public safety Tsarnaev apparently posed, my basic reaction to the more overwrought commentary about Miranda is to advise people to chill.

The Lockdown

I am much more concerned about the “shelter-in-place” request, or as it has been described, the “lockdown.” In hindsight, was it wise to bring a major American city to a standstill, at a cost of hundreds of millions of dollars and a major though short disruption to daily life, given what was known at the time?

First, let’s note that this doesn’t seem like a legal question, since as far as I know no one was actually ordered to stay indoors, and no one was punished for failing to comply with the request. Let’s also note that it seems that the police were able to locate Tsarnaev only after the “shelter-in-place” order was lifted, and, at least according to Commissioner Davis’s comments, apparently because the order was lifted: a Watertown man who had stayed inside all day finally left his home in the evening and saw blood on the boat where Tsarnaev was hiding.

I think the lockdown looks a lot more sensible given yesterday’s denouement than it would have looked if the authorities had been unable to arrest Tsarnaev yesterday. At the early evening press conference at which the authorities announced that they had not located Tsarnaev and that the “shelter-in-place” recommendation was being lifted, the natural question was: if it was not safe for the city to operate for the last day, when we believed Tsarnaev was somewhere in a neighborhood in Watertown, why was it safe for the city to reopen, when it seemed Tsarnaev could be anywhere in the Boston area? And yet it was obvious to everyone that we couldn’t keep the city closed for the duration of the manhunt. What if it took days or weeks?

The bottom line, I think, is that it was a little unsafe to be out and about while Tsarnaev, apparently a dangerous criminal with access to explosives, was at large. But as the decision to lift the “shelter-in-place” recommendation with Tsarnaev still not in custody shows, life has to go on. You can’t be on lockdown forever until it is perfectly safe to go about your business, since it is never perfectly safe to go about your business.

And so when the authorities are going through the exercise of identifying the lessons of this weekend, I hope they will rethink the idea of shutting down a city when there’s a bad guy on the loose. It’s not clear what a shutdown accomplished, and so it’s not clear that the shutdown justified its high human and economic costs.

Photo credit: National Park Service