Rights Upon Arrest

An Egyptian-American activist/columnist/media personality named Mona Eltahawy was recently arrested in New York while defacing a pro-Israel subway advertisement. The entire incident was captured on video and can be seen here.

Over at the Volokh Conspiracy, Professor Orin Kerr focuses on Ms. Eltahawy’s demand that the arresting officer tell her what she was being arrested for. (As far as I can tell from the video, the officer didn’t respond to the demand.) As Professor Kerr puts it: “On TV, the officer announces the arrest, announces the crime of arrest, and then reads the suspect Miranda rights. But these are not actually constitutionally required.” In Devenpeck v. Alford, 543 U.S. 146 (2004), the Court stated that “[w]hile it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.” And an arrestee must be informed of his or her Miranda rights only if the police want to undertake custodial interrogation, which, in many cases, is not on the officers’ immediate post-arrest agenda.

It’s a good discussion that clears up some common misapprehensions about the law. But I should add that in North Carolina, G.S. 15A-401(c)(1)c states that an arresting officer must, “[a]s promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident.” The provision hasn’t been cited or discussed much, but at least one case suggests that an officer normally should answer a direct question about the basis of the arrest. In State v. Ladd, 308 N.C. 272 (1983), an officer arrested the defendant and the defendant asked, “What for?” The officer responded, “You know why.” The court stated that “the officer’s indirect response to defendant’s query as to why he was being arrested was in violation of G.S. 15A–401(c)(2)c” and that the officer “should have directly and truthfully answered defendant’s question at the time it was asked.” See generally State v. Kinch, 314 N.C. 99 (1985) (“Last, defendant [argues] that he was not read his ‘rights’ when he was arrested. It is not necessary to read a defendant the Miranda rights in order to make a lawful arrest. Defendant was advised by the arresting officers that he was being arrested on a charge of rape in compliance with N.C.G.S. 15A-401(c)(2)[c].”).

Officers, what’s your practice regarding when you notify an arrestee of the basis of the arrest? What do you think of the conduct depicted in the video? (The officer’s conduct, I mean. Ms. Eltahawy’s conduct really speaks for itself.)