*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT D ANIEL M IKE C HAVEZ , No. 18-36083
Plaintiff-Appellant , D.C. No. v. 1:11-cv-03025-AA D AVID R. R OBINSON ; L ISA
M OORE OPINION
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Argued and Submitted May 22, 2020 San Francisco, California Filed September 8, 2021 Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle, [*] District Judge. Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Berzon
[*] The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation.
SUMMARY [**]
Civil Rights
The panel affirmed the district court’s dismissal of a complaint brought pursuant to 42 U.S.C. § 1983 by Daniel Chavez alleging that his constitutional rights were violated when, as a condition of his supervised release and while his appeal of his conviction was pending, he was required to complete a sex offender treatment program, and then was discharged from the program and given a limited jail sanction for refusing to admit to the conduct underlying his conviction, a required part of his treatment.
Chavez brought suit for damages against his probation officer and the director of the therapy program alleging defendants violated his rights under the Fifth Amendment and Fourteenth Amendment by requiring him to admit to the conduct underlying his conviction; violated his Sixth Amendment right to counsel; and violated his First Amendment right to free speech by dismissing him from treatment after he filed the pending lawsuit.
Addressing Chavez’s claim that defendants violated his Fifth Amendment right against self-incrimination, the panel stated that the claim required consideration of the distinction between the core constitutional right protected by the Self- Incrimination Clause and the prophylactic rules designed to safeguard that right. The panel held that it was bound by the rule adopted by six justices in Chavez v. Martinez , 538 U.S.
[**] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 760, 770 (2003) (plurality opinion), as enunciated in this court’s precedent, and consistent with the rule adopted by sister circuits—that the Fifth Amendment is not violated unless and until allegedly coerced statements are used against a suspect in a criminal case. Because Chavez did not make a statement that was used in a criminal proceeding, he could not bring a civil action against the government under § 1983 for a violation of his Fifth Amendment right against self- incrimination. Thus, the panel held that Chavez’s claim was based on a violation of the judge-made protection from being forced to give incriminating testimony. Because this privilege is a prophylactic rule designed to safeguard the core constitutional right protected by the Self-Incrimination Clause rather than the core constitutional right itself, Chavez could use the privilege only defensively as a shield and could not wield it as a sword in an action for damages.
Addressing defendants’ contention that they were entitled to qualified immunity as to the Fifth Amendment claim, the panel stated that the analysis raised some close questions. The panel noted that under United States v. Antelope , 395 F.3d 1128, 1139 (9th Cir. 2005), state officials may not impose sanctions on a sex offender for failure to make incriminating statements as part of a treatment program, where the officials expressly decline to offer immunity and insist that a sex offender’s statements can be used in subsequent criminal proceedings. In Antelope , the court reversed the revocation of a sex offender’s supervised release. Rather than decide whether Antelope clearly established a rule that applied to defendants in this somewhat different context, the panel deemed it prudent to rely on its holding that Chavez’s Fifth Amendment claim could not proceed in the absence of the use of a coerced statement in a criminal proceeding, and so the panel did not reach the second prong of the qualified immunity analysis.
The panel next rejected Chavez’s claim that defendants violated his Sixth Amendment rights by denying him counsel at a critical stage. Chavez argued that defendants’ refusal to allow him to consult his attorney before making admissions was in effect a complete deprivation of counsel at the critical stage of determining whether to appeal or withdraw an appeal. The panel held that even assuming that a decision to withdraw an appeal is a critical stage, Chavez was not denied access to counsel for that purpose. Nor did any precedent support Chavez’s argument that his meeting with defendant Robinson for sex therapy treatment was a critical stage of his appeal. Moreover, the panel stated that this court’s precedent made clear that the Sixth Amendment has no application to supervised release proceedings. Because no existing precedent established that a prisoner who is prevented from contacting counsel during sex offender treatment has been denied counsel on appeal, defendants were also entitled to qualified immunity on this claim under the second prong of the qualified immunity analysis. Finally, the panel held that Chavez had not identified any case holding that a convicted sex offender participating in a treatment program as a condition of probation or supervised release is entitled to counsel before complying with the requirement (typical of such programs) to admit the conduct underlying the conviction, even if such admission has the potential to prejudice a potential retrial after a successful appeal. Accordingly, defendants were entitled to qualified immunity *4 on the Sixth Amendment right to counsel claim.
Addressing Chavez’s claim that defendants violated his First Amendment right by terminating him from the sex offender treatment program and revoking his supervision in retaliation for his lawsuit, the panel held that defendants were entitled to qualified immunity. Chavez cited no case holding that a person providing rehabilitation therapy for a supervised releasee may not discharge the releasee from the program in response to a lawsuit.
Concurring in part in the judgment and dissenting in part,
Judge Berzon stated that Chavez was compelled in a criminal
case to be a witness against himself and imprisoned because
he would not be, violating his Fifth Amendment rights and
giving rise to a cause of action under § 1983. On the record
viewed most favorably to Chavez, defendants violated a well-
established prohibition on incarcerating a parolee for failing
to incriminate himself, recognized in
Antelope
,
Judge Berzon also wrote separately to address the majority’s reasoning on Chavez’s Sixth Amendment claim. To the extent the majority reached the merits (which was not clear), she disagreed with the majority’s assertion that Chavez’s Sixth Amendment claim failed because he had access to counsel at other stages of his appeal and because the Sixth Amendment did not apply to supervised release proceedings. These arguments mischaracterized Chavez’s claim: that he had a right to consult with counsel about waiving his Fifth Amendment privilege while his appeal was still pending. Judge Berzon agreed, however, that there was no clearly established law on whether Chavez had a right to consult with counsel under the circumstances, and so *5 6 C HAVEZ V . R OBINSON concurred in holding that Chavez’s Sixth Amendment claim was barred by qualified immunity.
COUNSEL
Gus Tupper (argued), Kara Gordon, and Eleanor Walker, Certified Law Students; Charles D. Weisselberg (argued) and William H.D. Fernholz, Supervising Attorneys; University of California School of Law, Berkeley, California; for Plaintiff- Appellant.
Beth A. Jones (argued), Certified Law Student; Gerald L. Warren (argued), Supervising Attorney; Law Office of Gerald L. Warren and Associates, Salem, Oregon; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
As a condition of his supervised release, Daniel Chavez was required to participate in a sex offender treatment program. When he refused to admit to the conduct underlying his conviction, a required part of his treatment, Chavez was discharged from the program and given a limited jail sanction, as permitted under regulations applicable to supervised releasees. Chavez brought a civil action under 42 U.S.C. § 1983 seeking damages for violations of his constitutional rights due to this sequence of events, but the district court dismissed his complaint.
We conclude that because Chavez did not make a
statement that was used in a criminal proceeding,
see Chavez
v. Martinez
,
I
In May 2008, Daniel Chavez was indicted by an Oregon grand jury in connection with sexual misconduct involving minors under 14 years of age. [1] Chavez claimed he was innocent of the charged offenses, and went to trial. In March 2009, the jury convicted Chavez of two counts of felony attempted sexual abuse in the first degree and two counts of misdemeanor private indecency. The court sentenced him to 18 months incarceration on one of the attempted sexual abuse counts, followed by 60 months post-prison supervision. [2] As a condition of his supervised release, Chavez was required,
[1]
On this appeal of a grant of a motion to dismiss, we rely on the facts
set forth in the Second Amended Complaint (SAC), as well as attachments
or documents incorporated by reference,
see Koala v. Khosla
, 931 F.3d
887, 894 (9th Cir. 2019), and matters subject to judicial notice,
see United
States v. Ritchie
,
[2] Chavez was also sentenced to 60 months probation on the other attempt count, and two 30-day jail sentences to be served concurrently with the 18-month sentence for the misdemeanor counts. The court required him to register as a sex offender as a condition of probation. 8
among other things, to complete a sex offender treatment program.
Chavez appealed his conviction. On appeal, he was
represented by a lawyer from the state office of public
defense services. Chavez argued that the trial court erred by
admitting a physician’s medical diagnosis that a child had
been sexually abused, where that diagnosis was not based on
physical evidence of abuse, because such evidence was more
prejudicial than probative.
See
Or. Evid. Code, Rule 403;
State v. Southard
,
While his appeal was pending, Chavez finished his prison term and returned to Klamath County. Chavez’s probation officer, Lisa Moore, was responsible for monitoring Chavez’s compliance with probation and post-prison supervision. She directed Chavez to enroll in a sex offender treatment program provided by David Robinson and his company, Correctional Evaluation and Treatment, Inc. (CET).
Chavez appeared for the treatment program in June 2010. At the initial meeting, Robinson told him that as a condition of the program, Chavez had to admit to the conduct underlying each count of his conviction. Robinson also required Chavez to sign a form authorizing Robinson to disclose anything discussed in the program to Chavez’s
[3] If a defendant is on post-prison supervision following conviction of a sex crime, Oregon law requires the following special condition of the person’s post-prison supervision: “Entry into and completion of or successful discharge from a sex offender treatment program approved by the board, supervisory authority or supervising officer. The program may include polygraph and plethysmograph testing. The person is responsible for paying for the treatment program.” Or. Rev. Stat. § 144.102(4)(b)(F). 9 probation officer. Chavez asked for an opportunity to speak to an attorney about how the admissions might affect his pending appeal. Robinson told him that if he failed to admit to the criminal conduct underlying his conviction, he would go to jail.
When Chavez refused to admit to the conduct underlying his counts of conviction, Robinson dismissed him from the sex offender treatment program and notified Moore. Moore initiated post-prison supervision sanction proceedings against Chavez for failing to comply with the conditions of his supervised release. At the proceedings, Chavez was found to be in violation of the sex offender treatment requirement of his post-prison supervision, and was given a jail sanction. The record is unclear regarding the length of the jail sanction. Chavez did not appeal the revocation of supervised release.
In August 2010, a similar sequence of events unfolded. Pursuant to Chavez’s court-ordered sentence, Moore directed Chavez to enroll in Robinson’s sex offender treatment program. Chavez again refused to admit to the conduct underlying his conviction, and Robinson again dismissed
[4] Under Oregon law, the Department of Corrections (or another supervisory authority) may sanction a defendant who violates post-prison supervision conditions by imposing “a continuum of administrative sanctions.” Or. Rev. Stat. § 144.106(1). If the available administrative sanctions are inadequate, the supervisory authority may request the State Board of Parole and Post-Prison Supervision to impose a sanction of incarceration. Or. Admin. R. 213-011-0004(2). Based on such a request, “the Board shall hold a hearing to determine whether incarceration in jail is appropriate and may impose an appropriate term of incarceration up to ninety (90) days for a technical violation and up to one hundred and eighty (180) days for conduct constituting a crime.” Or. Admin. R. *8 213-011-0004(3).
10 C HAVEZ V . R OBINSON Chavez from the program and notified Moore. Moore then initiated a second round of post-prison supervision sanction proceedings against Chavez. At the proceedings, Chavez was found to be in violation of the sex offender treatment condition of his post-prison supervision and a second jail sanction was imposed against him. Again, the record is unclear as to the length of the jail sanction imposed. And again, Chavez did not appeal this revocation.
Following the imposition of the second sanction, Chavez’s appellate counsel moved the state trial court to stay the post-prison supervision condition that Chavez enroll in a sex offender treatment program. The counsel argued that the state could not implement the treatment provision unless it gave Chavez complete immunity for any statements he made during his treatment. The counsel acknowledged that the Oregon deputy district attorney had previously represented that Chavez would be given such immunity, but there was nothing in the record that “b[ound] the district attorney’s office to that pledge.” Therefore, counsel argued, the court should require the state to make that commitment on the record in open court.
A few weeks later, the court denied the motion to stay treatment, but issued an order granting Chavez immunity from any statements or admission made about his conduct in the course of sex offender treatment, as well as any evidence gained as a result of such statements or admission, except in any proceedings related to homicide. In March 2011, Chavez filed a pro se civil rights complaint in federal court under 42 U.S.C. § 1983, alleging that Moore and Robinson violated his constitutional right not to incriminate himself. Robinson subsequently dismissed Chavez from the sex offender treatment program. Based on this dismissal, Moore revoked *9 Chavez’s supervised release and imposed a third jail sanction on Chavez for refusing to participate in or comply with the treatment program. Chavez did not appeal this revocation.
In February 2012, the Oregon Court of Appeals reversed
Chavez’s conviction and remanded for a new trial.
State v.
Chavez
,
In 2013, the district court issued an order to show cause why Chavez’s civil rights complaint should not be dismissed for failure to prosecute. Chavez filed a document titled “Tort Claim with Damages” that named Robinson and the Oregon Board of Parole as defendants. The district court construed this document as an amended complaint and sua sponte dismissed the complaint with prejudice on the ground that the defendants were immune from damages. See 28 U.S.C. § 1915(e)(2)(B)(iii). It held that members of the Oregon Board of Parole were entitled to absolute immunity under the Eleventh Amendment. It also held that Robinson was entitled to qualified immunity because “[a] reasonable therapist in Robinson’s place would not believe he was violating a convicted sex offender’s civil rights by evaluating the offender in accordance with the legally mandated conditions of probation,” and, to the extent Moore was still a defendant in the case, she was also entitled to qualified immunity.
Chavez appealed, and we reversed, holding that the
district court erred in dismissing the complaint on qualified-
immunity grounds given the procedural posture of the case at
that time.
Chavez v. Robinson
,
Chavez filed a second amended complaint (the operative pleading here) in May 2018 (the SAC). The SAC alleged three different claims under § 1983: (1) a violation of Chavez’s Fifth and Fourteenth Amendment rights by requiring him to admit to the conduct underlying his convictions, (2) a violation of his Sixth Amendment right to counsel by retaliating against him for asserting his right to speak with a lawyer, and (3) a violation of his First Amendment right to free speech by dismissing him from treatment after he filed the pending lawsuit. The court again dismissed the complaint, this time with prejudice. After assuming without deciding that Robinson was a state actor, the court held that Chavez failed to state a claim with respect to all three claims, and that, in any event, the defendants were entitled to qualified immunity on all three claims. This appeal followed. 13
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo a district court’s dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Curtis v.
Irwin Indus., Inc.
,
II
We first address Chavez’s claim that Robinson and Moore
violated his Fifth Amendment right against self-
incrimination. Chavez’s claim requires us to consider the
distinction between the “core constitutional right protected by
the Self-Incrimination Clause” and the “prophylactic rules
designed to safeguard” that right.
Chavez
,
A
The Fifth Amendment states that “[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. “The privilege against
self-incrimination guaranteed by the Fifth Amendment is a
fundamental trial right of criminal defendants.”
United States
v. Verdugo-Urquidez
,
While the text of the Self-Incrimination Clause
establishes a trial right,
see id.
, the Supreme Court has
interpreted the clause as barring the government from
engaging in certain pretrial conduct, such as compelling a
person to make incriminating statements (absent a grant of
immunity) or punishing a person who refuses to make such
statements,
see Lefkowitz v. Cunningham
,
C HAVEZ V . R OBINSON
15
Amendment privilege,” as when a probationer refuses “to
answer questions calling for information that would
incriminate in separate criminal proceedings.”
Murphy
,
The Court has taken different approaches to shield individuals from such government compulsion. Where witnesses refused to testify despite the government’s threat that sanctions would be imposed, “the Court ruled that the state could not constitutionally make good on its prior threat.” Id. at 434. Where “an individual succumbed to the pressure placed upon him, failed to assert the privilege, and disclosed incriminating information which the state later sought to use against him in a criminal prosecution,” id. , the Court held the privilege was not waived, id. , and such testimony was subject to an exclusionary rule which “prohibits use in subsequent criminal proceedings of statements obtained” under a compulsion, Garrity , 385 U.S. at 500; see also Turley , 414 U.S. at 78 (holding that if a witness is compelled to answer incriminating questions without immunity, “his
[5]
The dissent relies heavily on these Supreme Court decisions holding
that the government may not punish a person who refuses to make non-
immunized incriminating statements. Dissent at 50–53 (citing
Murphy
,
16
answers are inadmissible against him in a later criminal prosecution”).
The shield provided by this judicial doctrine has *13 limitations. First, the Court has made clear that it is not implicated if statements are made voluntarily, as when a person “is anxious to make a clean breast of the whole affair,” see Garrity , 385 U.S. at 499. Nor does it apply when a person does not invoke the privilege against self- incrimination and any pressure to make incriminating statements does not rise to the level of compulsion, see Murphy , 465 U.S. at 427 (holding that a probationer’s “general obligation to appear and answer [the probation officer’s] questions truthfully did not in itself convert [the probationer’s] otherwise voluntary statements into compelled ones”). Second, the shield of the judge-made rule is not applicable if the statements do not pose a reasonable risk of being incriminating. Id. Nor is the shield applicable if the state has provided an appropriate scope of immunity to the
[6]
The Court has treated the bar against compelling a person to sign a
document waiving immunity as distinct from the bar against compelling
testimony because “[o]nce an immunity waiver is signed, the signatory is
unable to assert a Fifth Amendment objection to the subsequent use of his
statements in a criminal case, even if his statements were in fact
compelled.”
Chavez
,
The limitations on the protection provided by the Self- Incrimination Clause with respect to the government’s pre- trial conduct are equally applicable to the protections provided by the clause at trial. To invoke the Fifth Amendment’s trial right, a person must be “compelled in any *14 criminal case to be a witness against himself.” U.S. Const. amend. V. If there is no compulsion, because the statement is voluntary, or because the incriminating testimony cannot be used against the witness due to the grant of immunity, then the Self-Incrimination Clause is not implicated.
2
In
Chavez v. Martinez
, the Supreme Court considered the
distinction between the trial right set forth in the text of the
Fifth Amendment, and the broader judge-made rule shielding
individuals from government compulsion
to make
incriminating statements.
hospital, where they questioned him while he was receiving medical treatment. Id. According to the district court, the plaintiff “had been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about details of the encounter with the police.” Id. at 798 (Kennedy, J., concurring in part). The plaintiff was not given Miranda warnings or otherwise told that his cooperation should be voluntary. Id. While undergoing this questioning, the plaintiff made damaging admissions. Id. at 764 (plurality opinion). In the end, the government did not charge plaintiff with a crime or use the plaintiff’s answers against him in any criminal prosecution. Id. Nevertheless, the plaintiff brought a § 1983 action against the police officer on the ground that the coercive questioning itself violated his Fifth Amendment rights, “as well as his Fourteenth Amendment substantive due process right to be free from coercive questioning.” Id. at 765. A Ninth Circuit panel agreed that the plaintiff had stated a claim that the coercive questioning violated both his Fifth and Fourteenth Amendment rights. Id. at 765–66.
A majority of the Supreme Court reversed. Id. at 776. The case generated six separate opinions. Two opinions reversed our ruling on the Fifth Amendment claim: an opinion authored by Justice Thomas and joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Scalia as to the Fifth Amendment analysis, id. at 763–76, and an opinion authored by Justice Souter and joined by Justice Breyer, id. at 779 (Souter, J., concurring).
[7] A different majority held that the plaintiff might be able to establish the elements of a substantive due process claim for outrageous government conduct, and remanded this claim for further consideration.
Justice Thomas’s plurality opinion concluded that the officer’s alleged conduct did not violate the plaintiff’s core constitutional Fifth Amendment rights, and therefore the officer was entitled to qualified immunity. Id. at 766 (plurality opinion). According to the plurality, based on the text of the Fifth Amendment, a person’s rights under the Self- Incrimination Clause are not violated unless that person is prosecuted for a crime and actually compelled to be a witness against himself in a criminal case. Id. at 766–67. “The text of the Self-Incrimination Clause simply cannot support the Ninth Circuit’s view that the mere use of compulsive questioning, without more, violates the Constitution.” Id. at 767. The plurality recognized that the Court had also created “prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.” Id. at 770. Such procedural safeguards are “not themselves rights protected by the Constitution but . . . measures to insure that the right against compulsory self-incrimination was protected.” Id. (quoting Michigan v. Tucker , 417 U.S. 433, 444 (1974)). Therefore, a person cannot seek damages under § 1983 for a violation of the “evidentiary privilege that protects witnesses from being forced to give incriminating testimony.” Id. at 770–71. Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, also concluded that the questioning did not violate the plaintiff’s due process rights. Id. at 776.
Justice Souter, in an opinion joined by Justice Breyer, agreed that the plaintiff’s claims should be rejected. Souter recognized that the rule the plaintiff sought, “asking this Court to hold that the questioning alone was a completed violation of the Fifth and Fourteenth Amendments subject to redress by an action for damages under § 1983,” was “well outside the core of Fifth Amendment protection,” because the *16 20 C HAVEZ V . R OBINSON Self-Incrimination Clause “focuses on courtroom use of a criminal defendant’s compelled, self-incriminating testimony, and the core of the guarantee against compelled self- incrimination is the exclusion of any such evidence.” Id. at 777 (Souter, J., concurring). But, according to Justice Souter, “that alone [was] not a sufficient reason to reject” the plaintiff’s § 1983 claim. Id. Justice Souter relied on an additional reason: the plaintiff could not “make the powerful showing, subject to a realistic assessment of costs and risks, necessary to expand protection of the privilege against compelled self-incrimination to the point of the civil liability,” which the plaintiff asked the Court to recognize. Id. at 778 (cleaned up). Justice Souter worried that if the evidentiary privilege could be used as a sword, damages would be available “in every instance of interrogation producing a statement inadmissible under Fifth and Fourteenth Amendment principles, or violating one of the complementary rules [the Court has] accepted in aid of the privilege against evidentiary use.” Id. Broadly expanding the availability of damage actions in this manner was not “necessary in aid of the basic guarantee,” and instead a plaintiff could raise a substantive due process claim for outrageous government conduct. Id. at 779. Therefore, Justice Souter rejected the Fifth Amendment claim. Nevertheless, he disagreed with Justice Thomas on the substantive due process claim, and would remand that claim to the district court. Id. at 779–80. Four other justices agreed that the substantive due process claim for outrageous government conduct should be remanded, making the subsection of Justice Souter’s opinion discussing this issue the opinion of the Court. See id. at 777 n.*; see also id. at 799 (Kennedy, J., concurring in part).
Although none of the six separate opinions in
Chavez
“provides a binding rationale” in itself,
Tekoh v. County of
Los Angeles
,
Accordingly, we have recognized the distinction between
the core Fifth Amendment trial right, which a plaintiff can
use as a sword against a government official in a § 1983
action, and the judicially created prophylactic rule, which
shields a person from coercive government questioning, but
does not provide the basis for a § 1983 action.
See, e.g.
,
id.
at 1020;
Stoot
, 582 F.3d at 923;
Aguilera
, 510 F.3d at
1173–74. We first recognized this distinction in
United
States v. Antelope
, where a convicted sex offender on
supervised release was required to disclose his “full sexual
history” (including past criminal offenses other than those for
which he was convicted) on pain of revocation of probation
and supervised release.
Subsequently, we directly addressed the circumstances
under which a plaintiff could bring a civil action for violation
of his rights under the Self-Incrimination Clause.
See
Aguilera
,
Cases after
Aguilera
clarified what constitutes use of a
compelled statement in a criminal proceeding, but reaffirmed
that a plaintiff cannot bring a § 1983 claim absent such use.
Stoot
, 582 F.3d at 923 (characterizing the plurality and
concurring opinions in
Chavez
as agreeing that use of a
compelled statement in a criminal case is required to bring a
§ 1983 claim based on the Fifth Amendment);
Crowe v.
County of San Diego
, 608 F.3d 406, 427 (9th Cir. 2010)
(noting that “[i]n
Chavez
, the Supreme Court held that mere
coercion does not create a cause of action under § 1983 for a
violation of the Self-Incrimination Clause, absent use of the
compelled statement in a criminal case,” and holding that use
of a compelled statement in certain pre-trial proceedings
violated the Fifth Amendment);
Hulen
, 879 F.3d at 1018
(reiterating that an individual may bring a § 1983 claim based
on the Self-Incrimination Clause only “when a compelled
statement is used against a defendant in a ‘criminal case,’”
*19
24
C HAVEZ V . R OBINSON
and holding that use of a compelled statement in a parole
revocation hearing did not qualify as “use[] in a criminal
case”);
cf. Tekoh
,
Our sister circuits have likewise uniformly interpreted
Chavez
as standing for the proposition that use of a compelled
statement in a criminal proceeding is a prerequisite to a
§ 1983 suit based on a violation of the Self-Incrimination
Clause.
See, e.g.
,
Koch v. City of Del City
,
The dissent argues that because
Tekoh
held that none of
the six opinions in
Chavez
provided a binding rationale,
B
We now turn to the question whether Chavez can assert
a § 1983 claim for a Fifth Amendment violation on the
ground that the defendants sanctioned him for asserting his
*21
right to remain silent, without expressly granting him
immunity from use of his statement in a subsequent criminal
proceeding. In light of the principles discussed above,
Chavez may not do so. To bring a § 1983 action based on a
Fifth Amendment violation, the government must violate a
plaintiff’s “core constitutional right,”
Antelope
, 395 F.3d
at 1141, which is the “use of the compelled statements in a
criminal case against the witness,”
Aguilera
,
Chavez urges us to rely on the Sixth Circuit’s conclusion
that “
Chavez
only applies where a party actually makes
self-incriminating statements,” and does not apply to a person
like himself, who refused to make self-incriminating
statements.
Moody v. Mich. Gaming Control Bd.
, 790 F.3d
669, 675 (6th Cir. 2015) (quoting
Aguilera
,
This argument fails because Chavez’s and the dissent’s
proposed rule is directly contrary to our precedent.
Aguilera
explained that an accused suffers “the requisite constitutional
injury for purposes of a § 1983 action” only “after a
compelled incriminating statement is used in a criminal
proceeding.” 510 F.3d at 1173. Therefore, it makes no
difference if the government punished a person for refusing
to make incriminating statements,
Cunningham
, 431 U.S.
at 807, or if the government coerced incriminating statements
by threat of punishment,
Garrity
, 385 U.S. at 499–500.
Neither violation provides a basis for a § 1983 action.
See
*22
Section II.A.2,
supra
;
cf. Tekoh
,
Contrary to the dissent, Dissent at 48, there is no
exception to the
Chavez
rule when a plaintiff invokes the
privilege against self-incrimination, remains silent, and
suffers punishment. In
Entzi
, for instance, a prisoner refused
to undergo sex offender treatment that required him to admit
guilt to the offense of conviction.
Lacking any support in precedent for his proposed rule, Chavez raises a policy argument. According to Chavez, if he cannot bring a § 1983 action, he will be deprived of any remedy for the jail sanction that the government wrongly imposed upon him for refusing to make incriminating statements. The dissent likewise argues that the shield against the government’s efforts to compel admissions is meaningless if the government cannot be held liable for a violation under § 1983. See Dissent at 48. These arguments
C HAVEZ V . R OBINSON
29
miss the point of
Chavez
’s distinction between core
constitutional rights and prophylactic rules. Even if the
defendants erred in requiring Chavez to admit to the criminal
conduct underlying his convictions on pain of a jail sanction,
Chavez
makes clear that such an error in implementing a
prophylactic rule does not violate Chavez’s constitutional
rights, and therefore does not give rise to a constitutional tort
under § 1983. The prophylactic rules are in place to
safeguard Chavez’s core constitutional right, which in this
case was not violated.
See Chavez
,
Moreover, contrary to Chavez and the dissent, Chavez
could have sought protection from government sanctions in
other ways. First, Chavez could have demanded immunity
before making a statement in the sex offender therapy,
see
Kastigar
,
[8]
The dissent argues that Chavez could not seek such relief because,
according to Chavez’s original pro se complaint, “[t]he moment he refused
to incriminate himself, he ‘was immediately apprehended, handcu61ffed
and taken to jail’ where ‘he was detained without bail.’” Dissent at 61 n.3.
Chavez chose not to make this dramatic assertion in his Second Amended
Complaint, which renders his original complaint “non-existent.”
Ramirez
v. County of San Bernardino
,
Finally, if Chavez had asserted his Fifth Amendment
rights and then made the admissions required by his sex
offender treatment program, the exclusionary rule would have
*24
allowed Chavez to suppress the confession if a re-trial were
to occur.
See Murphy v. Waterfront Comm’n of New York
Harbor
,
Finally, the dissent relies on
McKune v. Lile
,
program did not offer immunity because of the therapeutic benefit for the participants “to accept full responsibility for their past actions.” Id. at 34. The prisoner in McKune refused to participate in the program on the ground that the required admissions would violate his Fifth Amendment privilege. Id. at 31. Instead, he brought an action under § 1983 seeking an injunction to prevent the prison from “withdrawing his prison privileges and transferring him to a different housing unit” as a result of his failure to enter into the program. Id.
The Supreme Court rejected his claim. Justice Kennedy’s
plurality opinion concluded that the prisoner had not suffered
a violation of his Fifth Amendment right because “[t]he
consequences in question . . . are not ones that compel a
prisoner to speak about his past crimes despite a desire to
*25
remain silent.”
Id.
at 36. Justice O’Connor’s opinion, which
we treat as controlling,
see Antelope
,
Having rejected the prisoner’s § 1983 claim on the ground
that his testimony was not compelled, the Court did not
consider any other ground for rejecting the claim. No opinion
in
McKune
addressed whether the prisoner could have raised
a § 1983 claim even though his admissions were not used in
a criminal case against him. There is no basis, therefore, for
the dissent’s assertion that “all nine justices in
McKune
indicated” that § 1983 liability would attach to a claim like
Chavez’s. Dissent at 60. Put differently,
McKune
provides
no support whatsoever for the dissent’s proposed rule that a
prisoner who suffers punishment as a consequence of failing
to speak can bring an action under § 1983. Dissent at 60.
Rather than conjure a rule from
McKune
’s silence, it is more
fruitful to consider how the Court addressed that exact issue
in the very next term, and held that a plaintiff has not suffered
a violation of the core constitutional right—and cannot bring
a § 1983 action—if no compelled statement is used in a
criminal case.
Chavez
,
In sum, we are bound by our precedent, which makes
clear that the Fifth Amendment is not violated “unless and
until allegedly coerced statements were used against the
suspect in a criminal case.”
Stoot
,
C
Because we conclude that Chavez cannot bring a § 1983 claim for violation of his Fifth Amendment rights, we address *26 the defendants’ claim that they are entitled to qualified immunity only briefly.
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.”
Ashcroft v. al-Kidd
,
When determining claims of qualified immunity at the
motion-to-dismiss stage, we take the well-pleaded facts in the
complaint as true.
Keates v. Koile
,
Considering the “particularized” facts of this case,
see
White
,
[9]
Because the SAC alleges that Robinson acted under color of state
law, we will assume it to be true for purposes of this analysis.
Cf. Johnson
v. Knowles
,
[10]
Oregon law also requires that releasees admit past sexual conduct
in certain circumstances. Persons convicted of sex crimes are required to
complete a sex offender treatment program if given a term of post-prison
supervision. Or. Rev. Stat. § 144.102(4)(b)(F). Such programs may
include polygraph testing,
id.
, which may be used to examine the
releasee’s sexual history,
see, e.g.
,
State v. Tenbusch
,
could not impose a sanction on the releasee for failure to
participate in the program as required by court order. We are
doubtful that a reasonable director of a sex offender therapy
program and a parole officer are “plainly incompetent” or
“knowingly violate the law,”
Malley
,
Further, Robinson and Moore could have reasonably
concluded that they were bound to implement a valid court
order. Indeed, government officials may be immune from
liability where they act in reliance on a valid court order.
See
Engebretson v. Mahoney
, 724 F.3d 1034, 1039 (9th Cir.
2013) (holding that prison officials charged with executing
facially valid court orders enjoy absolute immunity from
§ 1983 liability for conduct prescribed by those orders). And
we generally afford immunity to “parole officials for the
‘imposition of parole conditions’ and the ‘execution of parole
revocation procedures,’ tasks integrally related to an official’s
decision to grant or revoke parole.”
Swift v. California
,
But this qualified immunity analysis raises some close
questions. Robinson and Moore did not offer Chavez
immunity (assuming they had the authority to do so) when
they required Chavez to admit to the conduct underlying his
conviction. Under
Antelope
, state officials may not impose
sanctions on a sex offender for failure to make incriminating
statements as part of a treatment program, where the officials
expressly decline to offer immunity and insist that a sex
offender’s statements can be used in subsequent criminal
proceedings.
III
We next turn to Chavez’s claim that Moore and Robinson violated his Sixth Amendment rights by denying him counsel at a critical stage. [11] “It is beyond dispute that ‘[t]he Sixth
[11]
In his SAC, Chavez claims only that Moore and Robinson
“retaliated against [him] for asserting his right to speak with a lawyer in
June, 2010 before responding to the demand that he admit disputed
Amendment safeguards to an accused who faces incarceration
the right to counsel at all critical stages of the criminal
process.’”
Marshall v. Rodgers
,
Chavez first argues that Robinson and Moore violated his
Sixth Amendment right to counsel on appeal, which is a
critical stage of a criminal proceeding for purposes of the
Sixth Amendment.
See Penson v. Ohio
, 488 U.S. 75, 88
(1988). Chavez’s theory comprises multiple steps, and
proceeds as follows. According to Chavez, consultation with
an attorney about whether to appeal is a critical stage of the
proceedings. Second, Chavez claims that if he admitted to
the conduct underlying his conviction, and then prevailed on
allegations that were then pending on appeal, in violation of Chavez’s
Sixth Amendment right to counsel,” but does not argue that Moore and
Robinson’s failure to allow him to speak to counsel at that time violated
his Sixth Amendment right. In his opening brief, however, Chavez does
not mention retaliation, but raises only a Sixth Amendment claim based
on denial of counsel at a critical stage. The defendants do not address this
discrepancy, so we assume that Chavez’s Sixth Amendment claim is
properly before us.
See Norwood v. Vance
,
appeal, any appeal would be futile because he would be re- convicted on retrial if his admission was not suppressed but was introduced at a retrial. Therefore, according to Chavez, consulting with a lawyer regarding whether to make an admission is analogous to consulting with a lawyer about whether to withdraw an appeal. And consulting about withdrawal, he asserts, is substantially the same as consulting with a lawyer about whether to appeal at all. As a result, Chavez argues, Robinson and Moore’s refusal to allow him to consult his attorney before making admissions was in effect a complete deprivation of counsel at the critical stage of determining whether to appeal or withdraw an appeal.
This argument fails. First, no precedent supports Chavez’s claim that he was denied counsel on appeal. There is no dispute that Chavez was represented by appellate counsel for his appeal and was not denied representation “during the appellate court’s actual decisional process.” Penson , 488 U.S at 88. Nor does Chavez allege that Robinson prevented him from communicating with appellate counsel about withdrawing his appeal outside of the sex therapy treatment program. Therefore, even assuming that a decision to withdraw an appeal is a critical stage, Chavez was not denied access to counsel for that purpose. Nor does any precedent support Chavez’s argument that his meeting with Robinson for sex therapy treatment was a critical stage of his appeal. Any admission made by Chavez in his sex therapy program could not directly affect his appeal, because it would not have been part of the trial court record on appeal. And any admission—at least to the extent it was coerced by threat of sanctions—would not affect his retrial, because it could be suppressed in any subsequent criminal proceeding. Turley 414 U.S. at 78; Garrity , 385 U.S. at 500. Further, our precedent makes clear that “the Sixth Amendment has no
C HAVEZ V . R OBINSON
39
application to supervised release proceedings,”
United States
v. Spangle
, 626 F.3d 488, 494 (9th Cir. 2010) (citing
Morrissey v. Brewer
, 408 U.S. 471, 480 (1972)), which
further undermines any claim that Chavez had a Sixth
Amendment right to counsel in meetings or treatment
prescribed by his supervised release conditions,
cf. Murphy
Moreover, the case on which Chavez primarily relies,
Roe
v. Flores-Ortega
,
Because no existing precedent establishes that a prisoner who is prevented from contacting counsel during sex offender treatment has been denied counsel on appeal, Robinson and Moore are also entitled to qualified immunity on this claim under the second prong of the analysis. See al-Kidd , 563 U.S. *32 at 735.
Chavez’s second theory as to why his Sixth Amendment
rights were violated due to the denial of counsel at a critical
stage also fails. Chavez claims that a criminal defendant is
entitled to counsel during any proceeding that could
jeopardize a potential retrial. According to Chavez, this rule
is clearly established by
Cahill v. Rushen
,
While the rule in
Cahill
may be applicable here at some
“high level of generality,”
al-Kidd
,
[12] Justice Kennedy’s plurality opinion in McKune v. Lile explained why confession contributes to rehabilitation:
Therapists and correctional officers widely agree that
clinical rehabilitative programs can enable sex
offenders to manage their impulses and in this way
reduce recidivism. See U.S. Dept. of Justice, Nat.
*33
Institute of Corrections, A Practitioner’s Guide to
Treating the Incarcerated Male Sex Offender xiii (1988)
(“[T]he rate of recidivism of treated sex offenders is
fairly consistently estimated to be around 15%,”
whereas the rate of recidivism of untreated offenders
has been estimated to be as high as 80%. “Even if both
of these figures are exaggerated, there would still be a
significant difference between treated and untreated
individuals”). An important component of those
rehabilitation programs requires participants to confront
their past and accept responsibility for their misconduct.
Id.
, at 73. “Denial is generally regarded as a main
aspect of sex offender treatment programs in the context of
Fifth Amendment rights,
see, e.g.
,
Murphy
,
In sum, Chavez has not identified any case holding that a
convicted sex offender participating in a treatment program
as a condition of probation or supervised release is entitled to
counsel before complying with the requirement (typical of
such programs) to admit the conduct underlying the
conviction, even if such admission has the potential to
prejudice a potential retrial after a successful appeal. Given
that clearly established law must be “particularized to the
facts of the case,”
White
,
impediment to successful therapy,” and “[t]herapists depend on offenders’ truthful descriptions of events leading to past offences in order to determine which behaviours need to be targeted in therapy.” H. Barbaree, Denial and Minimization Among Sex Offenders: Assessment and Treatment Outcome, 3 Forum on Corrections Research, No. 4, p. 30 (1991). Research indicates that offenders who deny all allegations of sexual abuse are three times more likely to fail in treatment than those who admit even partial complicity. See B. Maletzky & K. McGovern, Treating the Sexual Offender 253–255 (1991).
C HAVEZ V . R OBINSON 43 immunity on this claim. [13] We therefore affirm the dismissal of Chavez’s right-to-counsel claim.
IV
Finally, we turn to Chavez’s claim that Robinson and
Moore violated his First Amendment right to bring a civil
lawsuit by terminating him from the sex offender treatment
program and revoking his supervision in retaliation for his
filing a lawsuit against them. According to Chavez, this right
is clearly established by
Rhodes v. Robinson
,
[13] Because we decide that it was not clearly established that Chavez had a right to counsel at his sex offender treatment program, we need not address Moore’s additional argument that she did not violate Chavez’s right to counsel because Chavez made the demand only to Robinson.
We held that in the prison context, the “prohibition
against retaliatory punishment is ‘clearly established law’ in
the Ninth Circuit for qualified immunity purposes.”
Id
.
*35
at 569 (quoting
Pratt v. Rowland
,
There are significant distinctions between
Rhodes
and the
facts alleged in the SAC. Unlike in
Rhodes
, the SAC in this
case does not present a retaliatory action in a prison context,
but instead alleges that Chavez is a releasee attending a sex
offender treatment program. Chavez cites no case holding
that a person providing rehabilitation therapy for a supervised
releasee may not discharge the releasee from the program in
response to a lawsuit. It is not “arbitrary and irrational” for
a sex offender treatment program director, like Robinson, to
conclude that when a participant in a therapy program is
adversarial, repeatedly refuses to participate in the threshold
requirement for admission, and brings a legal action against
the therapist, no therapeutic relationship could be developed,
and therefore such a program would be ineffective in
promoting a Chavez’s rehabilitation.
See Brodheim
, 584 F.3d
at 1272. Under these circumstances, Robinson could
reasonably conclude he had a “legitimate correctional goal”
in dismissing Chavez from the sex offender treatment
program.
Rhodes
,
For the same reason, we conclude that Moore is entitled
to qualified immunity. Once Robinson terminated Chavez
from the sex offender treatment program, Chavez was no
longer in compliance with the court-ordered condition of
probation and supervised release. Although Chavez argues
that Moore had “ready alternatives” to giving him a jail
sanction that would have achieved the same penological goal
(such as transferring him to a different sex offender treatment
program),
see Shaw v. Murphy
,
AFFIRMED . BERZON, Circuit Judge, concurring in part in the judgment and dissenting in part:
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Daniel Chavez was incarcerated for declining to admit to criminal conduct during therapy prescribed as a condition of his parole. An appeal of his conviction was pending at the time, and his concern was that if his appeal succeeded—which it did—any statement he made about the crime for which he was convicted could be used against him in a retrial.
To me, it takes no complex analysis to conclude that Chavez was “compelled in [a] criminal case” to be a witness against himself and imprisoned because he would not be, violating his Fifth Amendment rights and giving rise to a cause of action under 42 U.S.C. § 1983. The applicable precedents have taken some twists and turns, but, after working through them, I am convinced that the straightforward conclusion is the correct one: On the record viewed most favorably to Chavez, Robinson and Moore violated a well-established prohibition on incarcerating a parolee for failing to incriminate himself, recognized in United States v. Antelope , 395 F.3d 1128, 1139 (9th Cir. 2005); Chavez may sue for damages under 42 U.S.C. § 1983 for that violation; and Chavez’s Fifth and Fourteenth Amendment claim is not barred by qualified immunity. As the majority decides otherwise, I dissent from the majority’s *37 Fifth Amendment § 1983 holding.
I also write separately to address the majority’s reasoning on Chavez’s Sixth Amendment claim. To the extent the majority reaches the merits (which is not clear), I disagree 47 with the majority’s assertion that Chavez’s Sixth Amendment claim fails because he had access to counsel at other stages of his appeal and because the Sixth Amendment does not apply to supervised release proceedings. These arguments mischaracterize Chavez’s claim: that he had a right to consult with counsel about waiving his Fifth Amendment privilege while his appeal was still pending. I agree, however, that there is no clearly established law on whether Chavez had a right to consult with counsel under the circumstances, and so concur in holding that Chavez’s Sixth Amendment claim is barred by qualified immunity.
I. Self-Incrimination
Again, the self-incrimination language of the Fifth
Amendment (which is incorporated to the states via the
Fourteenth Amendment,
Malloy v. Hogan
, 378 U.S. 1, 6
(1964)), guarantees that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S.
Const. amend. V. “The constitutional privilege against self-
incrimination has two primary interrelated facets: The
Government may not use compulsion to elicit self-
incriminating statements, and the Government may not
permit the use in a criminal trial of self-incriminating
statements elicited by compulsion.”
Murphy v. Waterfront
Comm’n of N.Y. Harbor
,
[1] I concur in the majority’s resolution of Chavez’s First Amendment § 1983 claim.
48
C HAVEZ V . R OBINSON
Incrimination Clause).
[2]
The second facet of this guarantee is
protected by a set of procedural safeguards ensuring that,
when an individual
does
give self-incriminating testimony in
non-criminal proceedings in response to government
compulsion, that testimony may not be admitted in any
related criminal proceedings.
See Chavez v. Martinez
,
538 U.S. 760, 770–71 (2003) (plurality opinion). As the
majority ably demonstrates, our circuit’s interpretation of
Chavez
does not allow for a cause of action under § 1983
where an individual gives self-incriminating statements
outside of a criminal proceeding.
See Aguilera v. Baca
,
But this rule does not control where the privilege
is
invoked, no statement is given, and the individual suffers
punishment as a consequence—here, the classic punishment
of incarceration. First, long-standing Supreme Court law
makes clear that the compulsion itself is of constitutional
significance.
See Lefkowitz v. Cunningham
,
[2]
Waterfront Commission
says “criminal trial,” but the amendment
itself says “criminal case.” Consistent with the text, case law has made
clear that the self-incrimination protection applies to aspects of criminal
proceedings other than trial.
See Stoot v. City of Everett
,
a. The Scope of the Privilege Chavez was told that if he did not admit to the criminal conduct underlying his conviction during prescribed therapy sessions, his supervised release would be revoked. He refused to incriminate himself and was immediately jailed, three times. The first two times this happened, he was not offered immunity for any retrial or other future criminal proceedings. As Chavez was detained immediately after he refused to incriminate himself, see infra p. 61 n.3, he had no opportunity to seek immunity from a judge. So: Chavez was punished—compelled (by jail time) for refusing to be a witness against himself (by admitting to the underlying criminal conduct), with his criminal case not concluded and a retrial possible.
At its most fundamental, the Fifth Amendment not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also “privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
Minnesota v. Murphy
, 465 U.S. 420, 426 (1984) (quoting
Lefkowitz v. Turley
,
Threatened imprisonment is a quintessential “penalt[y]
capable of forcing the self-incrimination which the
*40
Amendment forbids.”
Cunningham
, 431 U.S. at 806. The
protection guaranteed by the Self-Incrimination Clause
therefore “forbids the States to resort to imprisonment . . . to
compel [someone] to answer questions that might incriminate
him.”
Malloy
, 378 U.S. at 8. Likewise, “there are
no
circumstances in which law enforcement officers may suggest
that a suspect’s exercise of the right to remain silent may
result in harsher treatment.”
Tobias
,
Nor is the prohibition on penalizing the refusal to self-
incriminate limited to threats of incarceration.
Uniformed
Sanitation Men Ass’n v. Commissioner of Sanitation
,
In these latter cases, “the attempt to override the
witnesses’ privilege proved unsuccessful,” and no coerced
statement was ever made or admitted.
Murphy
, 465 U.S.
at 434. Nonetheless, “the Court ruled that the State could not
constitutionally make good on its prior threat” of penalty.
Id.
It was
the coercive acts themselves—the
acts of
compulsion—that triggered protection under the Fifth
Amendment.
See Cunningham
,
We held exactly that in United States v. Antelope . Antelope considered near-identical facts to this one: A plaintiff released from prison on supervised release was required, as a condition of his mandated treatment program, to detail his sexual history without any assurance of immunity. 395 F.3d at 1130. He repeatedly refused; in response, the government revoked his supervised release and incarcerated him. Id. On direct appeal of the revocation, Antelope asserted that the government’s conduct violated his right against compelled self-incrimination. Id. at 1131–32. We agreed, holding that Antelope had established a Fifth Amendment violation by showing that “(1) that the testimony desired by the government carried the risk of incrimination, and (2) that the penalty he suffered”—incarceration— “amounted to compulsion.” Id. at 1134 (citations omitted). Notably, as here, Antelope did not make any incriminating statement, and so the case did not concern the invocation of an evidentiary privilege during a criminal proceeding.
For its holding,
Antelope
relied heavily on the Supreme
Court’s reasoning in
McKune v. Lile
, which
Antelope
read as
prohibiting the government from revoking supervised release
as a result of a defendant’s “refusal to disclose his sexual
history without receiving immunity from prosecution.”
Id.
at 1139;
see id.
at 1135–39.
McKune
concerned a § 1983
challenge to a sexual abuse treatment program administered
in a Kansas prison.
C HAVEZ V . R OBINSON 53 received curtailed “visitation rights, earnings, work opportunities, . . . and other privileges,” and were advised they would be transferred to a higher-security unit. Id. at 30–31.
A fractured Court held that the program did not violate the Fifth Amendment, but only on the ground that the consequences of silence—“transfer to another prison where television sets are not placed in each inmate’s cell, where exercise facilities are not readily available, and where work and wage opportunities are more limited”—were not severe enough to rise to the level of compulsion. Id. at 36; see id. at 48–49 (O’Connor, J., concurring in the judgment). There was no majority opinion regarding the standard applicable when evaluating what conduct constitutes compulsion. See id. at 48. But Justice Kennedy’s plurality opinion, which proposed the most demanding standard, acknowledged that the outcome might be different if the decision not to participate in the treatment program resulted in a longer prison sentence. See id. at 38 (plurality opinion). And Justice O’Connor’s concurrence, which Antelope held is controlling, see 395 F.3d at 1133 n.1, likewise noted that “longer incarceration” imposes a penalty “far greater than those we have already held to constitute unconstitutional compulsion,” McKune , 536 U.S. at 52 (O’Connor, J., concurring in the judgment).
As
Antelope
held,
Chavez v. Martinez
is not to the
contrary.
See
b. The Scope of § 1983 Liability The majority maintains that, despite the square holding of Antelope that a parole revocation and imprisonment for refusing to make non-immunized incriminatory statements is impermissible under the Fifth Amendment, Chavez v. Martinez does not permit an affirmative action in damages for that impermissible compulsion. I disagree.
i.
First, there is no controlling opinion in
Chavez
regarding
whether § 1983 actions are available in such circumstances.
This circuit recently held that “none of the six opinions [in
Chavez
] provides a binding rationale,” and specifically that
“Justice Thomas’s plurality . . . cannot control.”
Tekoh
,
In
Chavez
, Justice Thomas’s narrower view of the scope
of the Fifth Amendment reflected a “rationale significantly
broader than those of the concurring Justices.”
Tekoh
985 F.3d at 722. Justice Thomas broadly maintained that
“violations of ‘judicially crafted prophylactic rules do not
violate the constitutional rights of any person’ and therefore
‘cannot be grounds for a § 1983 action.’”
Id.
at 721 (quoting
Chavez
,
Rather, Justice Souter explained that the Supreme Court’s penalty cases “express[] a judgment that the [Fifth Amendment’s] core guarantee, or the judicial capacity to protect it, would be placed at some risk in the absence of [the] complementary protection[s]” those cases recognized. Id. at 778. Although he noted that recognizing a § 1983 cause of action absent the “courtroom use of a criminal defendant’s compelled, self-incriminating testimony” would “be well outside the core of Fifth Amendment protection,” Justice Souter rejected the plurality’s position that “that alone” was “a sufficient reason to reject Martinez’s claim,” id. at 777, and concluded only that, in the Chavez case before the court—in which the Fifth Amendment violation consisted of “questioning alone”—Martinez could not “make the ‘powerful showing,’ subject to a realistic assessment of costs and risks, necessary to expand protection of the privilege against compelled self-incrimination to the point of” civil liability, id. at 777–78 (quoting Miranda v. Arizona , 384 U.S. 436, 515, 517 (1966) (Harlan, J., dissenting)).
In Justice Souter’s view, then, the availability of a § 1983
claim depends on whether such a rule is “necessary in aid of
the basic guarantee” of the Fifth Amendment privilege.
Id.
at 779. And, contrary to Justice Thomas’s assertion that a
violation of the Fifth Amendment absent courtroom use of
inadmissible statements could
never
be the basis for a § 1983
claim, Justice Souter did not suggest that such a claim would
be unavailable where there is an “imposition[] of[ a] penalt[y]
that would undermine the right to immunity.”
Id.
at 778
(citing
Uniformed Sanitation Men
, 392 U.S. at 284–85;
Turley
,
To be sure,
Antelope
recognized that, after
Chavez
, it is
sometimes appropriate to distinguish “defensive” Fifth
Amendment challenges from an affirmative action brought
under § 1983.
See Antelope
,
C HAVEZ V . R OBINSON 57 that case. The opinion noted only that the government “might” prevail in such a posture; it did not hold that it would . Id. There is therefore no controlling precedent, either from the Supreme Court or this circuit, directly resolving the § 1983 availability question before us now.
The majority recognizes
Tekoh
’s holding that “none of the
six separate opinions in
Chavez
‘provides a binding
rationale,’” Maj. Op. at 21 (quoting
Tekoh
,
Moreover, none of the cases cited by the majority
addressed the set of circumstances at issue here, in which the
plaintiff invoked his Fifth Amendment privilege during the
pendency of a criminal proceeding and was punished for
doing so. In
Aguilera
, law enforcement deputies were
threatened with “re-assignment from field to desk duty” for
declining to answer questions about possible misconduct.
The majority’s reliance on
Stoot v. City of Everett
,
Once one considers only the “specific result” in
Chavez
as precedential,
see Tekoh
,
ii.
As neither
Chavez
nor
Antelope
squarely decides whether
§ 1983 liability attaches to a scenario in which an individual
has suffered a coercive penalty—here, incarceration—for
refusing to incriminate himself, we turn to
McKune v. Lile
, in
which the Supreme Court considered an almost identical
question. As discussed
supra
,
McKune
and this case share
key facts. Like the plaintiff in
McKune
, Chavez was required
to share details of his sexual history as part of a court-
imposed sexual abuse treatment program and faced adverse
consequences for refusing to do so. But unlike the plaintiffs
in
McKune
, who were already incarcerated and faced a
penalty of reduced prison privileges and transfer to a higher-
security facility,
Crucially, no opinion in McKune intimated that the plaintiff’s action under § 1983 for violation of his Fifth Amendment self-incrimination privilege failed because, as here, no incriminating statements were made and so no incriminating statements were introduced in any criminal proceeding. The alleged harm suffered by the plaintiff in McKune was a penalty for his silence, not adverse consequences at trial; the § 1983 suit failed because there was no compulsion for Fifth Amendment purposes, not because no incriminating statement was sought to be introduced at trial. McKune therefore is fully consistent with holding that a § 1983 cause of action is available to Chavez here.
Moreover, this case decidedly does not present the danger
identified in Justice Souter’s
Chavez
concurrence that, if we
were to recognize possible liability, § 1983 would in the
future apply “in every instance of interrogation producing a
statement inadmissible under Fifth or Fourteenth Amendment
*48
principles.”
[3] The majority asserts that Chavez “could have sought protection from government sanctions in other ways,” such as by demanding immunity before making any incriminating statements or by appealing the revocation of his supervised release. Maj. Op. at 29 & n.8. This suggestion is belied by the record. Chavez explained in exhibits to his original complaint that the moment he refused to incriminate himself, he “was immediately apprehended, handcuffed and taken to jail,” where he was “detained without bail,” and he relied on that assertion in his opening brief on appeal. The majority maintains that this allegation should be ignored because, it contends, Chavez did not reattach these exhibits to his Second Amended Complaint. Id. at 31 n.8. But the district court repeatedly cited the docket entry containing the exhibits to the original complaint in its order dismissing Chavez’s Second Amended Complaint. In particular, the district court considered the “Violation and Structured Sanction Reporting Form,” filled out by Moore with regard to Chavez’s third incarceration. That form establishes that Chavez’s “[c]ustody” began on March 10—the date he refused to participate in his therapy—even though the sanction was not officially imposed until March 22, presumably after a hearing before the State Board of Parole and Post-Prison Supervision. So, these *49 62 C HAVEZ V . R OBINSON Thus, even though, as we recognized in Antelope , the “scope of the Fifth Amendment’s efficacy is narrower when used as a sword in a civil suit than when used as a shield against criminal prosecution,” 395 F.3d at 1141, this case comes within that scope.
In sum, defendants Robinson and Moore violated Chavez’s “right . . . to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” Malloy , 378 U.S. at 8. Recognizing a cause of action under § 1983 for this conduct would not impermissibly expand civil liability beyond that needed to preserve a meaningful Fifth Amendment protection where (1) there is a pending criminal proceeding as to which the compelled statements may be pertinent; (2) there was no assurance of immunity in that proceeding and no opportunity to obtain that assurance; and (3) the plaintiff invoked his Fifth Amendment privilege and was actually imprisoned. In these narrow circumstances, I would hold that Chavez has stated a claim for damages under § 1983.
c. Qualified Immunity
Once it is established that Chavez has a cause of action
under § 1983, it is clear that his claim is not barred by
qualified immunity:
Antelope
“clearly established” the
constitutional right that Chavez alleges was violated.
Ashcroft v. al-Kidd
,
criminal defendant’s] refusal to disclose his sexual history
without receiving immunity from prosecution . . . violate[s]
his Fifth Amendment right against self-incrimination.”
II. Right to Counsel
With respect to Chavez’s Sixth Amendment claim, it is
not altogether clear whether the majority has ruled only that
the claim is barred by qualified immunity or has instead
reached the merits of the Sixth Amendment issue. To the
extent the majority decides this question only on the grounds
of qualified immunity, I agree that Chavez’s Sixth
Amendment claim (incorporated to the states via the
Fourteenth Amendment,
Douglas v. California
,
Chavez asserts that Robinson and Moore violated his right to counsel by refusing to allow him to consult with his attorney when he was forced to decide whether to admit to his crimes as a part of his treatment program. Chavez contends that, because defendants forced him to “admit or go to jail,” and admitting to the conduct underlying his convictions would have decimated his chances of winning a retrial, making it “pointless to pursue an appeal,” he was effectively deprived of his right to be represented at a critical stage of his *51 appeal—the decision whether to continue or to abandon his appeal.
“[T]he right to be represented by counsel is among the
most fundamental of rights.”
Penson v. Ohio
,
These analyses misunderstand both our Sixth Amendment
case law and Chavez’s claim. To start, Chavez’s claim is that
he was denied the right to consult with his counsel at a
particularly critical moment—when Robinson and Moore
demanded that he waive his Fifth Amendment privilege and
make incriminating admissions regarding the conduct
underlying his convictions. It is immaterial to that claim that
he had access to counsel at other points during his appeal.
The question, rather, is whether Chavez was denied counsel
at
a
“critical stage” of prosecution—any step of a criminal
proceeding “that h[olds] significant consequences for the
accused.”
Bell v. Cone
,
That Chavez was represented “during the appellate
court’s actual decisional process,”
Penson
,
Nor does it matter to Chavez’s Sixth Amendment claim that he had the opportunity outside the mandated treatment program to communicate with counsel about withdrawing his appeal. See Maj. Op. at 38. Chavez does not argue that he was generally prevented from consulting with counsel about bringing or withdrawing his appeal. To the contrary, Chavez’s point is that waiving his Fifth Amendment privilege and confessing to the conduct underlying his conviction while his appeal was still pending would have had the same effect as withdrawing his appeal. Such a waiver and confession might “make it pointless to pursue an appeal” by rendering any possible retrial “a mere formality,” Cahill v. Rushen 678 F.2d 791, 795 (9th Cir. 1982), and so constitutes a “critical stage” of the prosecution to the same degree as does a discussion about whether procedurally to withdraw an appeal, id.
The majority further contends that, because “the Sixth
Amendment has no application to supervised release
proceedings,” Chavez accordingly had no “right to counsel in
meetings or treatment prescribed by his supervised release
conditions.” Maj. Op. at 38–39 (first quoting
United States
v. Spangle
,
C HAVEZ V . R OBINSON 67
True, the fact that Chavez was in a sex offender treatment
program enabled Robinson and Moore to invoke the coercive
pressure of imprisonment to attempt to extract his confession.
But the reason Chavez was in a “critical stage” of his
prosecution was not because he was in a sex offender
treatment program but rather because waiving his privilege
would “h[old] significant consequences for” his likelihood of
success on appeal and retrial.
Cone
,
For that reason, the majority’s invocation of
United States
v. Spangle
,
Spangle , Morrissey , and Murphy , then, stand only for the proposition that probation or supervised release proceedings do not in and of themselves trigger the Sixth Amendment right to counsel. It says nothing about the right to consult counsel before being compelled to waive the Fifth Amendment privilege during a pending appeal , when that could render the entire appeal an exercise in futility.
Whether Chavez was denied counsel at a “critical stage”
of his appeal when he was not permitted to consult with his
attorney about whether to make the potentially self-
incriminating statements is therefore an open question on the
merits. As “[a]ny amount of additional jail time has Sixth
Amendment significance,”
Frye
,
For the foregoing reasons, I respectfully concur in the judgment as to the Sixth Amendment qualified immunity issue but dissent with regard to the Fifth Amendment § 1983 issue and the majority’s reasoning on the Sixth Amendment question.