Daisy Needs a Constitutional Watchdog

What is the proper response to domestic terrorism? Daisy Johnson’s answer on the Agents of SHIELD episode “Watchdogs” is, “they gave up their right to civil liberties.” Daisy then proceeds to conduct two unlawful arrests and force confessions with threats of violence to get information from the Watchdog “prisoners.”

Agents of SHIELD highlights the danger of the military and espionage agencies conducting law enforcement. First, no one gives up their civil liberties. Both the 5th and 14th Amendments prevent the government from depriving people of their liberties without due process of law. Second, civil liberties do not apply only when convenient, but to ensure the government does not abuse its power.

Make no mistake about it, the [fictional] Watchdogs are domestic terrorists who killed Federal government employees in order to inflict fear on Inhumans. This squarely puts the Watchdogs in the same category as a white supremacist/anti-government hate groups.

Captain America would not be thrilled with Daisy’s neo-fascist law enforcement response. There is a long list of civil rights cases that specifically prohibit what she did in “Watchdogs.” From Powell v. Ala., 287 U.S. 45 (U.S. 1932) to Gideon v. Wainwright, 372 U.S. 335 (1963), to Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court spent decades establishing people arrested by the government have a right to counsel. Forcing confessions with physical abuse is also antithetical to civil liberties.

Supreme Court Justice Black stated in Gideon, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Gideon, at *344.

Daisy trampled on those rights of the Watchdogs, in addition to conducting unlawfully arresting the suspects without first stating they were under arrest for specific crimes, as required by the 4th Amendment.

There is an argument that Daisy had a valid “public safety exception” to Miranda for the second Watchdog she captured, as Fitz had an implosion device embedded on his neck. As a reminder, the Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of  circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The Public Safety Exception states that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at *651 (1984). Given the fact Fitz would have imploded, taking with him enough area to collapse a building into a large ball, a Court would find a valid exception to giving Miranda warnings. However, that would not give Daisy the license to rough up a suspect for information.

That does not at all excuse Daisy’s earlier conduct of ignoring the Constitution. If SHIELD is conducting law enforcement instead of the FBI, then SHIELD should follow the law, instead of waging war on it.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.