Aguilera v. Baca

RICHARD C. TALLMAN, Circuit Judges. Opinion by Judge TALLMAN; Dissent by Chief Judge KOZINSKI. TALLMAN, Judge: Circuit Plaintiffs, various Angeles Los County sheriffs deputies, appeal an adverse sum- mary judgment in favor of Leroy Sheriff Baca, the Sheriffs Department, other su- pervisory officers, and internal affairs in- vestigators. deputies The allege were improperly detained at the East Los Angeles Sheriffs Station and pun- later ished through involuntary shift transfers for failing to give non-privileged state- ments in connection with an internal crimi- nal civil rights investigation of possi- ble misconduct while on uniformed patrol duty. The deputies alleged § 19831 viola- tions of their own Fourth Amendment right to be free from unreasonable sei- zures, their Fifth Amendment process due right against compelled self-incrimination, and their Fourteenth Amendment pro- due cess to be free from coercive questioning and governmental conduct that shocks the conscience. We jurisdic- have tion under 28 § U.S.C. 1291 and affirm. Elizabeth Gibbons, J. Encino, CA, I the plaintiffs-appellants. Shortly after 1:30 a.m. on September 5,

Paul B. Beach Choi, and Jin S. Glendale, 2002, Lieutenant Abel Moreno, the Watch CA, for the defendants-appellees. Commander on duty at the East Los An- 1. 42 § U.S.C. provides, part: relevant tion thereof to the deprivation any rights, who, Every person under color of any privileges, stat- or immunities by secured ute, ordinance, regulation, custom, laws, or us- Constitution and shall be liable age, ..., any State subjects, or party injured causes to law, in an action at suit in subjected, any citizen of the equity, United or proper other proceeding for re- States or other person jurisdic- within the dress. internal regarding procedures and policies citi- a Station, learned Sheriffs geles Sher- Under investigations. injuries with hospitalized been had zen Policies Manual Department’s as- alleged iffs an back due his head affirmative an Procedures, officers flashlight without a baton sault investi- such during cooperate The duty to deputy. a uniformed provocation subject can cooperate bystand- A failure Flores, been gation. victim, Martin The discipline. investigation to administrative deputy of narcotics at the scene er require it to allowed assaulted. policies allegedly Department’s was he when beyond war- work a search while to remain present its deputies occurs, offi- by narcotics this When being executed shift. normal rant personnel its compensates Department cers. had received deputies rates. overtime imme- supervisors Department Sheriffs process manage how training on investi- affairs an internal diately initiated activity. of criminal suspected persons complaint Flores’s victim into gation went Burke Sergeant station at the misconduct. waited deputy While videotaped and obtained remain hospital to interviewed, the told to were be to Flores. complainant from room, basement the statement writing report in the injuries physical obvious COPS Burke observed the room, then and briefing call roll returned then Burke Flores. suffered unlocked. were which office, all team superiors, his with station, conferred supervi- to the waiting, several they were While at been had who deputies the and informed entered as defendants named later sors that, the end search the the scene depu- if the to ask intermittently office the 6:00 approximately shift patrol their A or drink. eat anything to needed ties station. to the return a.m., they should No one available. fountain drinking work leave not to instructed were They relinquish to deputies the asked investi- affairs internal to speaking before were deputies The badges. or weapons gators. other, sleep, each with to talk allowed More- and a.m., Burke calls, trav- Shortly before and telephone receive and make Aguilera Elizabeth plaintiff informed no unescorted. bathroom el to the now were deputies other the and that she under placed never were deputies The investiga- criminal internal anof the focus restrained, or searched, physically arrest, County Sheriffs Angeles Los tion. to the use subjected or touched otherwise in- internal separate two has Department permission deputy asked No of force. Bu- Affairs Internal units: vestigation waiting While station. leave allega- investigates (“LAB”), which reau over- completed deputies interviewed, the can nature administrative of an tions overtime received later They slips. time up to discipline employee recommend all for compensated otherwise were pay Internal termination; including regu- after station spent time (“ICIB”), Bureau Investigation Criminal ended. lar shift aof allegations investigates only which a.m., the 6:30 prose- approximately At presentation nature Angel’s Thomas Captain pursue can called who were attorneys cuting East of the Officer Commanding office, employees. charges According Station. Angeles Los had served of whom each deputies, announced, in a Angel Captain deputies, five positions enforcement law in sworn knew manner, he accusatory harsh, Department, with years twenty force excessive had used of them one Department Sheriffs with familiar on Flores, that the others were covering it each deputy to provide a written memo- up, and that one or more of them could be randum setting forth specific circum- prosecuted criminally or fired for doing so. stances of his or her hardship and how it Captain Angel informed the deputies that related to reassignments, but he did only way to avoid criminal charges was not receive any memoranda in response to to “come now,” forward which they under- request. The deputies concede that stood to mean to give an immediate and Department could change their shifts voluntary statement to the ICIB investiga- and assignments at will, and that being tors any without protection against later transferred to different shifts is a fairly use of such statements against them. common practice within the Sheriffs De-

At around 11:30 noon, a.m. or Sergeant partment. Russell Kagy ICIB, of the the lead crimi- In the following months, two Sergeant nal investigator assigned to case, be- Kagy conducted a thorough investigation gan interviewing each deputy sheriff indi- into the events of September 5, 2002. vidually. Kagy asked each deputy if he or Coordinating with prosecutors from the she provide statement, and each Los Angeles County District Attorney’s declined based the advice of counsel. Office and the United States Attorney’s No deputy was asked to waive his or her Office for the Central District of Califor- right against any having statement used nia, Kagy communicated and met ap- against him or her in a later criminal proximately two dozen individuals; re- proceeding, and no deputy gave either a viewed Department files and audiotapes; compelled or voluntary statement at this gathered and records, medical 911 commu- time. The deputies were advised by Ser- nication records, and photographs. In Au- geant Kagy that they were not yet formal- gust 2003, Sergeant Kagy submitted the ly considered suspects, but at this time case investigation report to the District they could not be eliminated as suspects Attorney’s Office for its either. consideration of After each deputy declined give to filing criminal charges. a statement, Kagy terminated the inter- view, and the deputies were told they In September were 2003, the District Attor- free to leave the station. ney’s Office requested compelled state- ments from deputies

None of the deputies Aguilera, Ramirez, under suspicion Carrillo could and initially be Arellano. During cleared process of the wrongdoing, and of extracting were each these compelled then reassigned statements, from respective their none of the patrol deputies street duties to sta- were asked to waive tion duties pending his or completion her of ongo- the right against hav- ing investigation possible into ing the criminal vio- statement used against him or her lations of the civil rights of Flores. in a Each criminal proceeding. days Within of deputy attests that the reassignment led providing to their compelled statements personal hardship.2 Captain Angel asked the investigators, the four deputies were 2. Certain allege that temporary slantially related to the matters under inquiry. positions afforded decreased opportunity for We read this agreement to mean that deputies earning However, overtime. according to the being investigated for unlawfully assaulting a collective bargaining agreement negotiated member of may the not be entitled to between Department the and deputies’ overtime assignments work in the field involv-

bargaining representative (the Association for ing unsupervised interactions with the public Angeles Los Deputy Sheriffs), deputies who in case complaint is later by sustained being are investigated internally are not nec- results of investigation. internal essarily entitled to assignments overtime sub-

1167 sei impermissible tioning amounted and restored supervisors by their cleared We Amendment. the Fourth under assign- zure duty pre-investigation occasion not, today, before reas- deputies were of Most ments. circum under what address whether Deputy October early signed is seized officer a enforcement law stances until December reassigned Bardon is when he the Fourth Amendment under Attorney declined the District 2003 when remain at supervisor to by his No ordered him. charges against to file criminal questioning about location designated ever charges federal official misconduct possible officer’s brought. “A investigation. a criminal triggering II meaning within person seizure Amend Fourteenth Fourth and judg summary grant review all account when, taking into occurs ments v. Union novo. Jones ment de Pacific the en surrounding the circumstances Cir.1992). of (9th 937, Co., R.R. would have counter, conduct police will summary judgment granting An order person a reasonable communicated evidence, read if the only affirmed liberty ignore he was not non-moving to the most light favorable business.” about his go presence genu of a the absence party, demonstrates 629, Texas, U.S. Kaupp v. fact, and the any material as to issue ine (2003) (inter 155 L.Ed.2d a S.Ct. judgment entitled to is moving party omitted). A seizure marks quotation List, nal Taylor v. law. matter of submits to an individual Cir.1989). occurs when 1040, 1044 authority application or an of lawful show novo subject to de review Also a law enforcement force physical im qualified grant court’s the district D., 499 v. Hodari agent. See California U.S. Holloway, 510 munity. Elder L.Ed.2d L.Ed.2d an offi (1991). between An encounter Katz, 533 U.S. (1994). Under Saucier trigger “will an individual cer 272 2151, L.Ed.2d 194, 201, 121 S.Ct. it los scrutiny unless Fourth Amendment two-step approach (2001), a take we v. Bos Florida consensual nature.” es its super the defendant determining whether 2382, 115 429, 434, tick, 111 S.Ct. 501 U.S. immunity. qualified visors are entitled (1991). L.Ed.2d supervi First, whether determine we the Fourth application constitutional deputies’ violated sors context employment in the affir to the If we answer id. See rights. “policemen, issues. While special whether mative, presents to determine proceed we relegat are not lawyers, such like teachers “clearly was established” that right constitu version to a reasonable to a watered-down clear ed be “it Jersey, 385 Garrity v. New in the rights,” unlawful was tional his conduct officer 616, 17 L.Ed.2d 500, 201- S.Ct. id. at he confronted.” situation not afford does (1967), at Constitution determine If we 2151. 121 S.Ct. workplace greater violation public step that no first private sector by their enjoyed is immunity inquiry than those occurred, qualified determining whether When counterparts. at an end. See id. at “seized” officer law enforcement superior III from subordinate, glean must we the subordinate’s whether circumstances de that their argue order superior’s heed his decision ques- pending duty station tention remain at designated (7th location Cir.2002); stemmed United States v. Muegge, fear, from a if leave, he tried to physical 225 F.3d Cir.2000) (per detention, curiam) merely adverse employment (finding no seizure when on- an consequences. duty civilian Air Force employee or- dered to report for an interview an that, are mindful “[o]rdinarily, when officer); intelligence United States people are at work their freedom to move Baird, (D.C.Cir.1988) 380-82 about has been meaningfully restricted, (finding no seizure when an on-duty Coast by the actions of law enforcement offi- Guard officer was ordered to report cials, but by the workers’ voluntary obli- officer).3 interview with an intelligence A gations to their employers.” INS v. Del- law enforcement officer seized gado, 210, 218, purposes of the Fourth Amendment simply (1984). L.Ed.2d 247 This is particularly so because a supervisor orders him to remain in the paramilitary environment of a at work after the termination of shift agency that is both a law enforcer and a or to come into the station submit to public employer. Police and sheriffs de- questioning about the discharge of his partments must frequently abide collec- duties peace as a Driebel, officer. See tive bargaining agreements that govern in F.3d at 638. bar, In the case if the great detail the terms and conditions of deputies had refused to wait the station workplace. But society has an equally questioned regarding the events of important interest ensuring highest September 5, 2002, or otherwise failed to integrity by those entrusted with discharg- cooperate in the criminal investigation, ing the peace duties of a officer. they could have been subject to adminis- aAs preliminary matter, we trative discipline including termination. hold that a law enforcement agency has However, while a law agency enforcement the authority as an employer to direct its can order its employees cooperate in a officers to remain on duty and to answer investigation as a condition of questions supervisory from part officers as their continued employment subject to the of a criminal investigation into the subor Constitution, it may not employ- seize its dinates’ alleged misconduct. See Driebel ees and detain them against their will City Milwaukee, probable without cause.4 639; See id. at 3. The dissent chastises us for our "selective (1983) (internal 77 L.Ed.2d 1275 Baird, reading” Driebel, Muegge, and be- quotation omitted). marks particular- This is cause in those cases the officers were either ly so where employer is a law enforce- specifically told that their interviews were vol- agency ment employee and the is a sworn Baird, untary, 378, 380, 383; 851 F.2d at peace specially officer trained in constitution- 1270, Muegge, 225 F.3d at or that were rights al attending the law of arrest. We can suspected particular crime, Driebel, of a presume greater a degree sophistication of on 298 F.3d at Although 648. these statements subject by that deputies these than we would certainly were factors that militated in favor presume lay of the rights plaintiff civil en- of a finding that the officers were not in countering police a investigation for the first not, custody, they do as the suggests, dissent Further, time. the existence of a collective bright-line create a rule employer that the bargaining agreement imposes specific a must unequivocally announce which “hat” duty police on cooperate in in- (employer or law agent) enforcement it is ternal investigations affairs Indeed, makes the wearing. context case-by-case, the spe- fact quite different from the inquiry cific run-of-the-mine civil has remained the same for sever- rights case. years al simply and "is whether there is a formal arrest or restraint movement of the degree associated with formal 4. superior arrest.” A Cali- law enforcement may officer Beheler, 1121, v. 1125, briefly stop question fornia a subordinate officer to conditions merely submitted (2d but 194, seized Brown, F.3d v. Cerrone to re- ordered when employment Cir.2001). statements of may compelled Nor questioning. further constitu- to the station of turn in violation obtained self-incrimination against at 641. id. See tional by Su- afforded protection the without the fol- emphasized Circuit The Seventh below. we discuss decisions Court preme of to its calculus critical factors as lowing the place: taken then, had issue, wheth a seizure is whether The first officer, the the subordinate without of experience seized level deputies the er the 647; Since treatment cause. at whether probable of id. existence see protect by depart- does Amendment that allowed Fourth consistent loss, job or demotions threat of see id. policy, general or guidelines ment inquiry relevant of 16; physical the occurrence n. at 649 posi in the deputy a reasonable restraint, whether see physical of threats contact or have feared tion of 16; refusal 647, explicit 646, 649 & n. id. at obey the if he refused detention 649 n. see id. at depart, permission of officers. superior commands officer, see 16; of the subordinate isolation Anderson, 663 F.2d States United 16; to use permission n. at id. context, Cir.1981). we this Within see id. accompaniment, restroom without department’s a between distinguish must 16; officer’s the subordinate 649 n. at employer capacity as in its actions subject of was the that he being informed arm of enforcement as the law actions its 643; id. at investigation, see a Broderick, 392 See Gardner the state. spo- officer was subordinate whether the 20 L.Ed.2d 273, 88 S.Ct. man- threatening menacing “in or ken at (1968); Garrity, 385 U.S. 16; whether ner,” 649 n. at see id. 616. under constant officer was subordinate are circumstances identifying which In 646; supe- surveillance, at whether see id. analysis of whether our salient to most ah request to contact denied rior officers instructive find place, we took seizure at id. see representative, union attorney or Driebel, analysis Seventh Circuit’s ability to officer’s 648; the subordinate There, appellate our sister at 622. includ- equipment, law retain enforcement the Fourth court considered id. see badges, weapons ing had been who officers of four claims detention, 16; duration n. accompa- duty to remain on ordered offi- 646; subordinate and the id. see and answer to headquarters ny detectives see id. at pay, of overtime receipt cer’s internal of an during the course questions articulated reasoning adopt possible miscon- investigation to the factors Applying these Driebel. of- by police acquisition involving duct in the case detention nefar- from firearms unregistered ficers seized they were not bar, we hold determined The court ious sources. Fourth Amend- meaning of the within detec- seized when had been officers two years at least five deputy had Each ment. and uni- point pickup tives surveilled her his or and testified experience to retrieve arrived formed officers policies Department’s familiarity with court The dumpster. in a weapons hidden deputies The law. and state had not been others that two determined ac- suspicion that criminal Ohio, Terry has reasonable holding in with consistent tivity may afoot. L.Ed.2d may when he (1968), any police do officer as well versed through their academy never touched or threatened physical and on-the-job in training Department pro- restraint. They were not isolated from regarding cedures the manner in which one prohibited another or from speaking individuals placed are under arrest with one another. After the deputies were Department’s statutory and contractual questioned and provide declined to an un- authority to order officers to remain at protected statement, they were immediate- work on addition, overtime. In each depu- ly allowed to leave the station. All were ty accepted as a condition of his or her paid overtime. short, In the deputies were employment the official policy that he or not treated like criminal suspects, and they she cooperate must with other members of should have given their training, known— the Department conducting an internal years force, on the and familiarity with criminal investigation. Department procedures protocol— that, they if

While the deputies chose waited leave to be the station in inter- viewed, defiance of Department supervisors’ their orders, did not employ might procedures standard have subject been detaining criminal administrative suspects discipline station, but such could not have searching been forcibly them, booking them, detained absent full physical and inventorying arrest. their possessions. deputies must have Admittedly, some factors militate toward that, been aware probable without cause, finding that a seizure place. took In par- no superior officer permitted to use ticular, deputies were informed that any force or show of authority prevent they were under criminal investigation. In them from departing the if station they so addition, Captain Angel, the highest rank- chose. While the deputies obviously un- ing officer at station, conveyed in a derstood that any violation of the order not “harsh, accusatory tone” his belief that one work might leave breach administrative Flores, assaulted he rules and could result in their discipline as insinuated that the others were it covering employees, we do not think that prospect up, and he further warned that one or is sufficient to classify this situation aas more of them go to prison and lose criminal seizure. jobs if they were in involved such Department did not create a behavior. coer- While the message may have cive environment in which to been detain the delivered in a harsh tone of voice to deputies. The deputies were not convince his trans- subordinates Captain ported to the station meant what he will. said hopes pierc- They were not cell, held in ing but “blue rather shield” of silence he thought unlocked rooms with he was supervi- facing, intermittent we are not prepared to sion. The Department did not believe any refuse that trained deputy sheriffs would deputy’s request to depart (though no one nonetheless have been confused as to their leave). asked to Supervisors legal and repeatedly rights contractual under the cir- asked the deputies if they wanted cumstances. food believe that a reasonable drink and allowed deputy them to travel to the in the plaintiffs’ position would restroom and water fountain unaccompa- understood that he was ordered to nied. The deputies were not prevented report and remain at the station until in- from phoning their attorney or union rep- terviewed ICIB investigators, and resentative for legal or contractual he advice would likely suffer criminal civil and remained in possession of prosecution their De- and administrative discipline if partment-issued equipment, including the evidence revealed his involvement in weapons and badges. The deputies were the assault of However, Flores. these and work job assignments their current sufficient, of them- in and are not facts unavail- argument is deputies’ shifts. The volun- deputies’ the selves, to transform ing. order supervisors’ to their tary accession cognizable a seizure into at work remain

to the involving of cases a series In Amend- Fourth under the arrest as an employ public rights of Fifth Amendment ment. dear has made ees, Court Supreme depu compelled that the to hold cannot be employees public decline We or supervisors’ by unprotected their providing seized ties were to choose between in accordance issued their ders, testimony losing or which incriminating a cooperate with to policies, Men Department Sanitation jobs. See Uniformed investigation. Sanitation, necessary internal v. Comm’r Ass’n of pro a equate to (1968) hold otherwise To 20 L.Ed.2d 1089 88 S.Ct. agen enforcement that a law nouncement city employ discharge of (holding that provi cannot, negotiated under even cy of immuni sign to waivers refusing ees agency’s or agreement of a labor sions against privilege invoking ty or confi public preserve to policies general Fifth violated self-incrimination in personnel its integrity of and the dence Gardner, Amendment); 392 U.S. at respon public safety discharge of their (same); U.S. at Garrity, 385 cooperate to sibilities, its order state (holding that the 87 S.Ct. mis officer possible of investigation in an of incriminatory statement cannot use duty sta by at their standing by conduct job threat under employee an secured We do watch. end of their after the tion proceeding); subsequent criminal in a loss not, super- a to, act as and will intend Cunningham, also see Lefkowitz em micromanage the to board personnel 53 L.Ed.2d pro enforcement of law actions ployment (1977) can “government (holding that the agencies “Law enforcement fessionals. the constitutional assertion of penalize reason, deference, within to entitled are compelled self-incrimina privilege against and administrative policies execution testi compel by sanctions imposing tion preserve designed that are practices immunized”). not been mony has which confidentiality, in security, and maintain however, careful, pre- was The Court among order, corps de and esprit ternal employer right public serve Driebel, employees.” about employee question appropriately grant court’s affirm district 648. possible employee’s relating to matters deputies’ judgment on summary Gardner, duty. In while misconduct claim. Fourth Amendment vio- that the noted the Court employee not when IV lation arose ques- job-related compelled to answer was they were contend deputies re- tions, employee when but right their Fifth deprived of against self- privilege his quired waive Four (made to the states applicable employ- answering while incrimination Amendment) self-incrimina against teenth questions. job-related legitimate er’s supervisors argue tion. If the U.S. at them by forcing right violated this questions answer refused to officer “had non- voluntary, giving between choose narrowly relating directly, and specifically, be used that could statement immunized duties, his official performance to the subsequent them immu- to waive his being required retaining without proceedings administrative 1172

nity with respect to the use of his City answers Baltimore, Council 773, of (4th Cir.1995). or the fruits thereof prosecu- himself, tion of the privilege against self- We hold that the supervisors incrimination would not have been a bar to did not deputies’ violate the Fifth Amend ment (footnote rights they his when dismissal.” were questioned Id. and citation about possible misconduct, given that the omitted); see also Sanitation Uniformed deputies were not compelled to answer the Men, 1917; U.S. at 88 S.Ct. Lef- investigator’s questions or to waive their kowitz, 431 U.S. at 97 S.Ct. 2132 immunity from Indeed, self-incrimination. (“Public employees may constitutionally be it appears that the deputies were never discharged for refusing to poten- answer even asked to waive immunity.5 In tially questions incriminating concerning circumstances, these it is clear that their official if they deputies’ duties have not been Fifth Amendment right against self-incrimination required was not implicated to surrender their constitutional supervisors’ conduct. See Hill v. immunity.”); Martinez, Chavez Johnson, Cir.1998) 768-69 & n. (holding that “[t]he Fifth Amendment is (2003) L.Ed.2d 984 (outlining scope only violated by the combined risks of both public employees’ rights under the Fifth compelling employee to incrim answer Amendment clause). self-incrimination inating questions and compelling em “This language strongly indicates that ployee to waive immunity from the use of forcing a public employee to poten- answer answers”); those (hold Wiley, 48 F.3d 773 ing tially job-related officers’ Fifth incriminating Amendment questions rights were not violated given that the officers does implicate the Fifth Amendment had not been asked to waive their privilege unless employee is also compelled to against self-incrimination and the ques waive his privilege.” Wiley Mayor & posed tions to them were narrowly job-

related).6 It is of no moment refusing colleague 5. Our in dissent maintains that some initial cooperate coercion to and answer there is a dispute factual as to whether the questions, the record does not support a tri- compelled officers were to make incrimina- able issue fact as to whether the tandem ting compelled, statements. If on the one requirement compelling the officers to hand, the automatically officers would be en- waive their Fifth was met. immunity titled any incriminating state- Wiley, 48 F.3d at (reasoning that "forc- they ments made. Murphy, Minnesota v. ing public employee to answer potentially 420, 434, U.S. 79 L.Ed.2d 409 incriminating job-related questions does riot (1984). If compulsion, not under on the oth- implicate the Amendment unless the em- Fifth hand, er then had the right ployee compelled also is privi- waive his to remain silent punishment. without fear of ”) lege (emphasis added). Indeed, depu- Lefkowitz, 84-85, 94 S.Ct. 316. ties were not asked to waive their immunity. arises, dispute insists, factual the dissent any Nor were against statements ever used Captain Angel, "by because including the risk them. prison as one the consequences of not 6. speaking The dissent clearly ... was doing only believes something constitu- tionally permissible other giving than a command rule is one to a subor- that would require dinate.” Dissent at 16813. employers expressly inform However, Supreme as the that "any empha- they give statements Court Gardner, sized can’t against be used them in pro- Constitution is offended ceedings” when an compelled is taking officer before disciplinary to answer action job-related questions, against only employee but refusing when the offi- speak. cer required privilege rule, waive against Dissent at retorts, 1177-78. This it self incrimination answering legitimate while "easy pie” administer no job-related questions. legitimate argument U.S. at exists such an Although there may have approach. been Indeed, Dissent at 1179. the dis-

1173 of the Self-In text the not violate questions does investigator’s the to answer use of the com fact, re- Clause absent (and, in did crimination have resulted could case in a criminal not do consider statements sult) reassignment: pelled in duty as Only a com to desk after field witness.” from re-assignment job under Gard- a one’s is used in losing incriminating statement equivalent pelled 273, 1913.7 88 ner, at S.Ct. suf U.S. has an accused 392 proceeding injury for requisite fered Fifth Amendment deputies’ id.; See § action. of a 1983 purposes because fails also claim 1128, F.3d Antelope, 395 v. United States crime, incrim and no a charged with never Cir.2005) (9th (discussing Chavez 1140-41 ever has their statements use of inating holding to the of its limiting reach and 769, Chavez, at 538 U.S. In made. been actions); also Lin § see 1983 of context Su opinion),8 (plurality 1994 123 S.Ct. (6th 237, 240 Fechko, F.3d 312 v. gler coercion “mere that Court held preme super rule, liability on and therefore line and adopting “the by harsh complains, sent visors, unnecessarily harsh and Eighth Cir- would and the Fifth rule of unfair immunity punish cuits, qualified government to basic permit[] the of contravention [w]e make self-incrim- it require, refuse to nor is who not police officers does principles. Gardner statements, they may though not circuit, even inating a that in our clearly law established immunity.” they have whether or be sure inform an expressly employer public must 1178. Dissent at regarding ac employee that his statements that appeal of the rule Despite the facial scope his and of em the course tions within twenty- apply with like us to dissent a against him in used ployment cannot be permissible of hindsight, the contours twenty taking administra proceeding before been articulat employer conduct public employee. Sauci See against that tive action well estab It is Supreme Court. by the ed 202, er, S.Ct. 2151. U.S. at 121 533 may com supervisor a lished privilege to waive pel a subordinate this statement bemoans dicta 7. The dissent Gardner, U.S. 392 against self-incrimination. rejected the Supreme Court has because the does 278, mandate But this 1913. public firing a short of actions notion that adop not, require suggests, as the dissent of a viable the basis employee cannot form rule, adopted bright-line the dissent’s tion of Repub Rutan v. See claim. Fifth Amendment Seventh, Second, Circuits. Federal and by the Ill., 76 n. 110 Party 497 lican Housing of Dep't. States See Weston United (1990) (reasoning 52 111 L.Ed.2d S.Ct. (Fed.Cir. Dev., 948 724 F.2d & Urban failing to hold Conlisk, act as trivial "even an 489 1983); Police Confederation Cir.1973); employee ... (7th birthday party for fo 4& n. Uni exercising her for punish v. Comm’r Men when Ass’n intended Sanitation rmed 619, 621, (2d N.Y., the Consti rights,” offends her[constitutional] Sanitation of omitted). 1970). (internal tution) quotation marks Cir. appealing such variation agree matter how No we largely because moot point is This be, may the rule precedent Supreme Court observation the district court's Significantly, by required Gardner. is not [not] "w[ere] in this case supervisors’ actions facts. continually glosses over critical dissent asserting deputies] for punish [the done warnings have Miranda Although notes that it at 1179. rights.” Dissent their constitutional culture,” Dick- part our national “become 428, 443, States, v. United erson Justice holding were Chief this Agreeing on (2000), this case L.Ed.2d S.Ct. O'Connor, Thomas, and Justices Rehnquist ad- charged with deputies who are involves Souter, Scalia, Breyer. id. warnings suspects in ministering Miranda Thomas, J., joined (Op. of dep- duties. These official course of their Scalia, C.J., O'Connor by Rehnquist, each, experience years five at least uties 777-79, (Op. of J.J.); id. policy Department familiarity with testified J.). J., Souter, Breyer, See McKin- joined law, versed and were and criminal 418, 431 n. Mansfield, 404 F.3d City ley v. suspects placing procedures for Department's Cir.2005). bright- impose Finally, this arrest. under Cir.2002) (holding that a police officer’s VI Fifth right was not violated The district court disregarded po because he had not been compelled to lice reports of Sergeant Kagjfs internal waive his privilege against self-incrimina- investigation, which documented the alle tion and his statements were never used gations against the deputies, on the basis against him in subsequent criminal pro- that they constituted hearsay inadmissible ceedings).9 affirm We the district court’s and were not sufficiently reliable qualify grant summary judgment on this claim. for the business exception. records 803(6).

Fed.R.Evid. The deputies contend appeal on they offered the reports for V the non-hearsay purpose of proving the argue that the dis supervisors’ knowledge of exculpatory trict court erred in concluding that clearing facts the deputies of the alleged supervisors’ conduct did not violate the misconduct aon date much earlier than deputies’ Fourteenth Amendment substan which their former field duties tive process due rights. view, In our the were However, restored. even if the dis Sheriffs Department had a legitimate trict court erred in failing to consider the need determine whether an officer or reports, any we find since, error harmless officers engaged in criminal behavior even considering the information in the and, under color of office until that crimi reports, the deputies’ Fifth Amendment nal investigation resolved, it had a and Fourteenth Amendment claims fail as duty to protect from the poten a matter of law.

tial for further by assaults the unknown VII

deputy potentially responsible by reassign ing all of those involved in the incident to Because we find that the supervisors did duty. station Even assuming that dep deputies’ violate the Fourth, Fifth, or were assigned uties to less favorable shifts Fourteenth rights, we affirm given “degrading” employment posi the district grant court’s of summary judg- tions, agree we with the in district ment favor of all court that defendants. Since no the reassignment did violation of any not transform right oc- curred, questioning into a we need not coercive reach investi the claim against the gation County under Cooper v. under Monell Dupnik, v. De- partment Services, Cir.1992). Social agree We also that a (1978). 56 L.Ed.2d 611 reassignment, It punishment even as for fail properly too was dismissed. ure to make voluntary statement, does ] the “shock[ conscience” run coun AFFIRMED. ter to the “decencies of civilized conduct” KOZINSKI, Chief Judge, dissenting for

under Rochin California, part: the most (1952). 96 L.Ed. 183 grant affirm the of summary judgment on aWhen law enforcement agency sus- these claims. pects one of its employees of criminal 9. The dissent so, makes too much of our citation it does the Fifth Amendment is violated. Martinez, Otherwise, Chavez U.S. at Here, it rely is not. we on the rule Plainly, S.Ct. 1994. applies in situa- Chavez primarily proposition Chavez tions where a party actually makes an incrim- since no statement was ever used inating government statement and the deputies, then cognizable there is no Fifth Amend- decides to use it in a proceeding. If ment claim. they were under all, told were becomes relationship wrongdoing, inter- employer, investigation, and complex one. strained the em- Investiga- over course, powers all Criminal the Internal retains viewed him to may ask employer (ICIB), qua investigates ployee which Bureau tion —-it answer overtime, reports, complete work employ- allegations against only criminal generally supervisors and questions Moreover, plaintiffs’ Id. at 1165. ees. employment terms of with the comply Angel, speaking Captain superior, however, addition, In relationship. manner,” “harsh, told them accusatory of detect- in the business is also employer exces- of them had used he knew one that activity, so prosecuting ing and Flores, were that the on others sive force the has generally can—and employer the or more of them that one covering up and may used that be evidence duty gather to— jobs and lose go prison to would others. employee and the prosecute to they gave statements. Id. unless wearing one is employer Whether the in cases relies on three majority both) unclear, (or is often hat or the other were finding plaintiffs that of its support precarious a employee in put the which can detained, selective- only cites them but to between forcing him choose situation Baird, v. States ly. Id. at 1168. United employer order from disobeying an (D.C.Cir.1988), no sei- found F.2d 376 privilege the constitutional up giving there Coast Guard officer zure because the situa- In such against self-incrimination. was “volun- that interview told the this play must not on tions, employer the whenev- “was free to tary” go and that he of the em- disadvantage to the ambiguity 378; at at see id. Id. er he wanted to.” it is rather, clarify whether it must ployee; Muegge, States 383. United capacity employee its questioning the Cir.2000) curiam), (11th (per F.3d 1267 Where as a law enforcer. employer em- this, employee no seizure because found fails to do employer at that he free to leave assumption told he was ployee on “was is entitled act agency, any a law enforcement dealing with not have answer any is time and did would position in his person City if a reasonable at 1270. Driebel Id. questions.” easily Plaintiffs here Cir.2002), have so believed. Milwaukee, F.3d 622 enti- standard, they so are this meet officer police that turned on fact jury; this case before bring tled he was the informed that “was never there that a of conflict kind precisely is crime, nor was any particular suspect communi- from the drawn group citizens threatening menacing or to in a spoken he position in the best resolve. ty is Id. 648. manner.” at from materially different case Our Cause Arrest Probable 1. Without Plaintiffs Baird, Driebel. Muegge and issue a triable presented Plaintiffs here leave, and free to they were weren’t told they were ar- that claim of fact on their to an- they told didn’t they weren’t because probable without cause rested at Muegge, 225 F.3d questions. swer Cf. find, presented, evidence on the jury could Instead, Baird, 1270; at 378. posi- plaintiffs’ people that reasonable in a suspects they were told plaintiffs were they placed believed tion would have superior and their investigation, merely to work asked under arrest and harsh, accusatory tone them in spoke to admits with majority overtime. As criminal sanctions. threatened candor, evidence Cf. there is commendable may Driebel, A at 648. seizure a sei- finding that toward that “militate[s] language “the use solely by effected After be Maj. op. place.” zure took or tone of indicating voice that compliance jury If a plaintiffs determines that were in with the request officer’s would be com- fact they arrested when were detained at pelled.” Martinez v. Nygaard, 831 F.2d station, police they entitled to (9th Cir.1987). context, Given the damages only nominal ones—for the —if reasonably could have believed they harm suffered as a result the un- stay station lawful arrest. I would therefore reverse pain least, of arrest. At a reasonable grant district court’s of summary judg- jury could find. so ment for plaintiffs’ defendants on Fourth

I don’t majority’s worry share the claims and remand for trial on letting go case this to trial would under- the issue.

mine employer’s authority to insist 2. Retaliation duty remain on past their shifts to questions. answer maj. op. Plaintiffs claim that defendants retaliat- 1171. An employer can right exercise that ed against them for failing provide difficulty without if he it makes clear that statements about the Flores incident for employees are not under arrest and he year about a defendants explicitly —until avoids the kind of Captain accusations An- ordered provide them to such statements. gel plaintiffs hurled at But here. where According plaintiffs, to only point that the employer brings in criminal investiga- could they be sure that their statements tors, yells employees, at the accuses them could not used against them in crimi- crimes, threatens them with criminal nal proceedings and they so reasonably punishment and does make it clear remained preserve silent to their constitu- they’re that arrest, not under a reasonable tional privilege against self-incrimination. jury could find employees that were If really defendants had wanted those seized. statements, they could easily have or- plaintiffs arrested, If the seizure plaintiffs dered provide to them at any was unconstitutional because the following time incident, and thereby probable no Dunaway cause. v. New have removed all doubt as to whether the York, 200, 216, 442 U.S. 99 S.Ct. 60 statements could be used prosecute to (1979). L.Ed.2d 824 Flores never identi- plaintiffs. Instead, played defendants cat fied the officer hit Instead, who him. he plaintiffs mouse months, 12 claimed to have been hit by a male deputy forcing plaintiffs guess to any whether who was possibly Hispanic, but all of the they statements gave could be used to officers the area were Hispanic and all prosecute words, them. In other defen- but one were male. That one member of a put dants economic pressure on plaintiffs group may have committed a crime doesn’t give to up Fifth Amendment probable establish cause every- to arrest a jury so reasonably could find —or one in group. that United States v. on this record. I would therefore remand Brown, Cir.1991). 951 1003 on well, this issue as go allow it to to Nor were defendants quali- entitled to trial. fied immunity because the law unconsti- My disagreement with the majority pro- tutional “clearly seizures was established” along ceeds four lines: at time the incident. Saucier v. Katz, 194, 202, First, 533 a. I U.S. believe 121 S.Ct. 150 there is genuine (2001). L.Ed.2d 272 No doubt as to reasonable officer whether plaintiffs were under believed have compulsion he could arrest give statement, and thus plaintiffs based on the evidence available. any whether they gave statements could

1177 whether in turn determines munity, which them. Cer- prosecute used have been refusing punished they could be order. express no tainly, there was Pub self-incriminating statements. Angel’s state- Captain make have is we closest immuni automatically inci- following morning lic on the ment in a to make self- compelled spoke they are dent, ty he when where during told them manner and harsh, accusatory incriminating statetnents or lose go prison to their official they could related investigations But statements. they give Murphy, did not v. 465 jobs if See Minnesota duties. order; it was an that this L.Ed.2d 420, 434, not clear 104 S.Ct. it’s U.S. a threat. prediction or Men (1984); have been might Sanitation Uniformed using N.Y., have been Or, Angel might Captain Sanitation Comm’r Ass’n by sug- Dilemma the Prisoner’s L.Ed.2d 280, 284, variant U.S. try to save officers Broderick, of the that each gesting (1968); Gardner at one finger by pointing skin own L.Ed.2d 273, 278, U.S. the others. more of Jersey, 385 (1968); Garrity v. New 493, 500, L.Ed.2d 562 mentioned Angel Captain Significantly, (1967). is or a public employee When if did prison togo plaintiffs could can’t be speak, his statements dered em- statements; disobeying an make proceeding, ain criminal against him used job only disci- result can order ployer’s to ad subjected therefore be he can By in- punishment. never criminal pline, for refus consequences employment verse of the as one prison of cluding the risk Gardner, at 392 U.S. See ing speak. An- Captain speaking, of not consequences if 276, 278, plaintiffs S.Ct. 1913. But 88 than other something clearly doing was gel to make self-incrimina compelled Had weren’t to a subordinate. command giving a automatically statements, they didn’t statements, ting given plaintiffs of the some im And, they had no if immunity. in have them against used they been and constitutionally entitled munity, they were prosecution the proceedings, jurors could Reasonable plain- that remain silent. claimed have doubtless would immunity, have plaintiffs self- didn’t against find that privilege waived their tiffs for defen Angel’s making unconstitutional Captain thus it because incrimination make refusing to say I can’t them punish a command. dants not statement See have self-incriminating statements. argument an that such for sure Lek 84-85, 70, 94 414 U.S. Turley, v. owitz failed. (1973); Uni 316, 274 L.Ed.2d 38 S.Ct. ais compulsion faces a person Whether 283, Men, 392 U.S. Sanitation Ryan, v. formed fact, see United States of question 276, Gardner, 1917; U.S. 392 S.Ct. 88 (9th Cir.1976), plain- 782, F.2d 789 548 278, 88 S.Ct. 1913. dispute as genuine raised have tiffs compulsion to that if the they Second, under were I would hold b. whether look might pub- well juryA inform expressly give statements. government doesn’t that de- they including fact any statements that employees lic situation — doubt on removed all could have fendants them can’t be used give a direct plaintiffs subject by giving them may punish not it proceedings, plaintiffs that conclude me as order —and This strikes speak. refusing to compulsion. under It rule. constitutionally permissible only rule, offi- only just is also because, is material dispute This factual justly and be treated are entitled cers com- government faced whether anyone else. less than no dignity, they had im- whether pulsion determines instead, The majority, adopts gar States, harsh v. 458-59, United and unfair rule of the Fifth Eighth (1972) 32 L.Ed.2d 212 (quot- Circuits permitting government to ing Murphy Comm’n, Waterfront punish police officers who refuse to make 52, 79, U.S. 12 L.Ed.2d 678 self-incriminating statements, though even (1964)). Usually, government needs to they may be sure whether or not they affirmatively grant immunity, see id. at immunity. Johnson, have See Hill v. 160 459, which concurrently in- (8th Cir.1998); F.3d Gulden v. forms the witness that he has immunity. McCorkle, F.2d Cir. The same is not true the immunity where 1982). kicks in automatically, as when such Second, Seventh and Federal Cir- government employee is give ordered to cuits have the better approach: gov- during statement course a criminal ernment tell must investigation. The employee may, first of immunity it before can constitu- all, have doubts as to whether or not he tionally punish them for refusing to make has been to give ordered the statement. self-incriminating statements. See Weston This amply case demonstrates this ambi- Dep’t Dev., Hous. & Urban guity and there are numerous other fact (Fed.Cir.1983); Confedera- patterns where it would not be clear Conlisk, tion Police v. 489 F.2d whether employee has been ordered to (7th Cir.1973); & n. 4 Sanita- Uniformed speak. I justification no see for forcing tion Men Ass’n v. Comm’r Sanitation the employee to guess whether or not he’s N.Y., (2d 619, 621, Cir.1970) given and, been an hence, order whether J.).1 (Friendly, It’s common knowledge he has immunity. pp. supra. 1176-78 protects Fifth Amendment privilege against self-incrimination, But even when it this is clear the em- explained in the warning ployee Miranda given order, which has been the em- has “become part of our national ployee culture.” may not know gives that this him States, 428, Dickerson v. United 530 U.S. automatic immunity. Automatic immunity 443, 2326, 120 S.Ct. 147 L.Ed.2d 405 only public leaves a employee “in substan- (2000). A public employee under criminal tially the position same if the [employ- as investigation rely should be able to on the ee] had claimed his privilege,” Kastigar, privilege against self-incrimination, as 458-59, 406 U.S. at 1653, 92 S.Ct. when plaintiffs here, did until he is told clear employee knows without a doubt that he terms that the statements can’t be used to immunity. Hill, has 160 at 472- prosecute him. J., 73 (Heaney, dissenting); Kalkines v. States, United 570,

We treat 200 immunity as a Ct.Cl. substitute for 1391, (1973). the Fifth all, 1395 privilege Amendment After against logic “[t]he self-incrimination underlying because Gardner is immunity that officer un- “leaves the [government] witness der investigation is not required specu- in substantially position the same as if late as to what his constitutional witness had claimed privilege.” Kasti- Lybarger L.A., are.” City v. 40 Cal.3d 1. State including Gandy California where v. ex rel. Div. Investigation State & courts— place these events adopted took also Narcotics, 281, 284, 96 Nev. —have 607 P.2d 581 See, position. Blubaum, e.g., this Eshelman v. (1980); City Heights Warrensville v. Jen- 376, 378-79, 114 Ariz. (Ct.App.1977); 560 P.2d 1283 206, 209-10, nings, 58 Ohio St.3d 569 N.E.2d Lybarger 822, City of L.A., 40 Cal.3d v. (1991). 489 829, 529, (1985); Cal.Rptr. 710 P.2d 329 public if a violated would be 529, P.2d 329 834, Cal.Rptr. 822, refusing to make A fired for C.J., concurring). person employee were (1985) (Bird, statements, though like immunity, even self-incriminating he has know doesn’t who here, maj. op. see could ever plaintiffs self-incriminating statement no “any state that believe justifiably employee. against would have been used against ... may be used he [makes] ment Fourth, contrary d. Supreme Court Arizona, 384 U.S. v. Miranda him.” only find majority would precedent, (1966). 16 L.Ed.2d tak- for actions retaliation unconstitutional who expect public employees can’t that are the employees against public en to know a statement give pressured are Maj. job.” op. losing one’s “equivalent I, example, immunity. for they have that argu- rejected has at 1173. Court idea, been a though I have no even deci- “only employment those that ment in law-re- involved employee government equivalent of substantial that are the sions decades. almost three lated activities public employee’s violate a dismissal control of complete employer is Republi- rights].” Rutan [constitutional situations, easy as and it would these III., 62, 75, 110 S.Ct. 497 U.S. Party can to inform supervisors pie (1990) (internal quo- 111 L.Ed.2d speak and ordered to they have been omitted). Here, al- marks tation I can see no immunity. have therefore to less reassigned lege simple this argument legitimate they were jobs and that rule, prestigious desk easily administered which they refused because promotions we here. denied kind of mess avoid If self-incriminating statements. make Third, reliance on majority’s c. asserting them for punish this was done to Martinez, 760, 123 538 U.S. Chavez it be un- rights, would (2003), see L.Ed.2d constitutional, an act of retaliation as “even 1173-74, misplaced because is maj. op. birthday party to hold a failing trivial as actually party where a only applies Chavez ... when intended employee for a In self-incriminating statements. makes exercising her for punish Chavez, held that there Supreme Court herfconstitu- violates the Constitution. rights,” tional] when violation no Fifth Amendment (internal n. self-incriminating state- Id. at 76 makes someone omitted). is never used statement marks quotation but ment Chavez, him. against qualified are not entitled Defendants at 777- opinion); id. (plurality S.Ct. Fifth immunity on plaintiffs’ (Souter, J., concurring 79, 123 S.Ct. 1994 “clearly estab- claims, it was because majority tries to judgment). Saucier, lished,” 533 U.S. Amend- Fifth rule —a import the Chavez retaliated couldn’t be when a self- only occur can violation ment refusing to make self-incrimi- against against incriminating used statement im- if didn’t nating statements one, cases, where like this someone—into 465 U.S. munity. Murphy, self-incriminating statements. are no there Gardner, 1136; 392 U.S. 7,n. rejected The Court this. Chavez itself But could 276, 278, 1913. Plaintiffs 88 S.Ct. government stated that explicitly there conspiracy with their proceed also thus ... public employees “penalize couldn’t defendants. individual against claims immunity.” waive them to induce protect- municipalities aren’t Additionally, (plurality n. 123 S.Ct. 1994 at 768 Id. City immunity, see Owen Chavez, by qualified Fifth ed So, under opinion). 622, 650, Independence, 445 U.S. (1980), plain- 63 L.Ed.2d 673 so S.Ct. proceed likewise be entitled tiffs should Department

with their Monell v. Social York, New

Services of (1978), 56 L.Ed.2d 611 claims County Depart- and Sheriffs I

ment. the dis- therefore reverse summary grant judgment

trict court’s retaliation plaintiffs’

for defendants and remand for these

claims trial on issues

as well.2

‡* ^[*] III, IV,

I from Parts VI and dissent VII. join Part

I V because defendants didn’t plaintiffs’ process due

violate substantive

rights. SMITH,

Kip Antonio Petitioner-

Appellant, Warden, DINWIDDIE, N.

Walter

Respondent-Appellee.

No. 06-5116. Appeals,

United States Court of

Tenth Circuit.

Dec. plaintiffs police department I would plaintiffs Because hold that could knew hadn't violation, a Fifth establish plaintiffs harmed Flores months before Sergeant Kagy's district court's exclusion of pre-investigatory duty returned as Rather, report ICIB wasn’t error. harmless signments. See Standard Oil Co. Cal. v. court the district abused its discretion in ex- Moore, 217 n. Cir. cluding report because offered it 1958). non-hearsay proving purpose

Case Details

Case Name: Aguilera v. Baca

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 27, 2007

Citation: 510 F.3d 1161

Docket Number: 05-56617

Court Abbreviation: 9th Cir.