TERENCE B. TEKOH, Plаintiff-Appellant, v. COUNTY OF LOS ANGELES; DENNIS STANGELAND, Sergeant; CARLOS VEGA, Deputy, Defendants-Appellees, and LOS ANGELES COUNTY SHERIFF‘S DEPARTMENT; DOES, 1 TO 10, Defendants.
No. 18-56414
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed June 3, 2021
D.C. No. 2:16-cv-07297-GW-SK. FOR PUBLICATION. Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges.
ORDER
Order; Concurrence by Judge Miller; Dissent by Judge Bumatay
SUMMARY*
Civil Rights
The panel denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.
The panel opinion vacated the district court‘s judgment on a jury‘s verdict, reversed the district court‘s judgment as to plaintiff‘s requested jury instruction, and remanded for a new trial in an action alleging, in part, that plaintiff‘s Fifth Amendment right agаinst self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial. The panel held that in light of the Supreme Court‘s decision in Dickerson v. United States, 530 U.S. 428 (2000), which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, where the un-Mirandized statement has been used against the defendant in the prosecution‘s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under
Concurring in the denial of rehearing en banc, Judge Miller, joined by Judges Wardlaw and Murguiа, stated that the Supreme Court‘s cases—most importantly, its reaffirmation of Miranda in Dickerson v. United States, 530 U.S. 428 (2000)—made clear that the right guaranteed by Miranda v. Arizona, 384 U.S. 436 (1966), is among the “rights, privileges, or immunities secured by the Constitution and laws,” so that
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, Bennett, R. Nelson, Bress and VanDyke, stated that given the text and history of the Self-Incrimination Clause and the overwhelming weight of Supreme Court precedent, the court was wrong to rule that the lack of Miranda warnings by itself violates the Constitution for purposes of
COUNSEL
Paul Hoffman (argued) and John Washington, Schonbrun Seplow Harris Hoffman & Zeldes LLP, Hermosa Beach, California; John Burton and Matt Sahak, Law Offices of John Burton, Pasadena, California; for Plaintiff-Appellant.
ORDER
Judges Wardlaw, Murguia, and Miller have voted to deny the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banс. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED. A concurrence in the denial by Judge Miller and a dissent from the denial by Judge Bumatay are filed concurrently with this order. No further petitions for rehearing or rehearing en banc will be entertained.
Judge Collins did not participate in the consideration of the petition for rehearing en banc.
IT IS SO ORDERED.
MILLER, Circuit Judge, with whom WARDLAW and MURGUIA, Circuit Judges, join, concurring in the denial of rehearing en banc:
The issue here is whether the right guaranteed by Miranda v. Arizona, 384 U.S. 436 (1966), is among the “rights, privileges, or immunities secured by the Cоnstitution and laws,” so that
Today‘s dissenters invoke the history of the Fifth Amendment in arguing that the answer should be no. They also find support for their position in Supreme Court cases that use language that is arguably in tension with the holding of Dickerson. But even if we were to sit en banc, we would remain judges of a “[t]ribunal[] inferior to the [S]upreme Court.”
For more than 50 years, there has been a robust debate about the conceptual underpinnings of Miranda. It is neither necessary nor appropriate for us to try to resolve that debate. In particular, the “text and history of the Fifth Amendment” (Dissent at 12) and the “long history of the common law right” that preceded it (Dissent at 19) are irrelevant to the question before us. That is not to deny that text and history are important to constitutional interpretation—they surely are. It is merely to recognize that the Supreme
It is true that the Supreme Court has described Miranda as a “prophylactic” rule, and that the prophylactic nature of Miranda has been important to many of the Court‘s decisions narrowing Miranda‘s scope. For example, the Court has held that a statement obtained in violation of Miranda may be introduced for impeachment purposes, Oregon v. Hass, 420 U.S. 714 (1975); that there is a “public safety” exception to the warning requirement, New York v. Quarles, 467 U.S. 649 (1984); and that Miranda does not bar the introduction of a post-warning confession obtained as the fruit of an earlier un-Mirandized statement, Oregon v. Elstad, 470 U.S. 298 (1985). Surveying those decisions in his Dickerson dissent, Justice Scalia argued that “it is simply no longer possible for the Court to conclude . . . that a violation of Miranda‘s rules is a violation of the Constitution.” 530 U.S. at 454. But as he went on to say, “that is what is required befоre the Court may disregard a law of Congress governing the admissibility of evidence in federal court“—which is precisely what the Court did. Id.
Justice Scalia‘s arguments in Dickerson highlight a tension in the Court‘s jurisprudence. As today‘s dissent demonstrates, one can begin with the cases treating Miranda as a prophylactic rule and reason to the conclusion that the doctrine must not be required by the Constitution. But if that were so, then Congress would be able to alter it, and Dickerson would have come out the other way. The dissenters evidently agree with Justice Scalia‘s reasoning, and some of us, or at least one of us, find it compelling as well, but it is not up to this court to resolve the tension hе identified. Instead, we must “follow the case which directly controls.” Rodriguez de Quijas, 490 U.S. at 484. Here, that case is Dickerson, which proves that Miranda announced a constitutional rule. We know that not just because of what the Court said—”Miranda announced a constitutional rule,” 530 U.S. at 444—but because of what it did: strike down an Act of Congress purporting to abolish Miranda. If Miranda is not “secured by the Constitution,”
If further proof were needed, we supply it every time we review a Miranda claim in a habeas challenge to a state conviction. See Withrow v. Williams, 507 U.S. 680 (1993). In language strikingly similar to that of section 1983, the habeas statute makes relief available to state prisoners only if they are in custody “in violation of the Constitution or laws or treaties of the United States.”
It will not do to say that Miranda is merely a “rule,” as if that were different from a “right,” “privilege,” or “immunity.” To be sure, the Supreme Court has held
The Supreme Court‘s cases since Dickerson do not alter this analysis. Applying the rule of Marks v. United States, 430 U.S. 188 (1977), to the fractured decisions in Chavez v. Martinez, 538 U.S. 760 (2003), and United States v. Patane, 542 U.S. 630 (2004), yields no holding that unsettles Dickerson. While the decisions might be taken to have “persuasive force” (Dissent at 24) as indications of how to count votes and predict how the Supreme Court will someday rule, making such predictions is the role of academics and journalists, not circuit judges. Our duty is to follow what the Supreme Court has done, not forecast what it might do.
Finally, even if everything I have said so far is wrong, it would not mean that this case “involves a question of exceptional importance” warranting rehearing en banc. Fed. R. App. P. 35(a)(2). The circuit split is not nearly as lopsided as the dissenters assert. They make it appear so only by counting three circuits’ worth of unpublished decisions and, for good measure, throwing in decisions that preceded Dickerson or that did not involve the introduction of un-Mirandized statements at trial but instead involved only the failure to give warnings—an issue the panel expressly declined to address. See Tekoh v. County of Los Angeles, 985 F.3d 713, 724 (9th Cir. 2021) (“We do not hold that taking an un-Mirandized statement always gives rise to a § 1983 action. We hold only that where government officials introduce an un-Mirandized statement to prove a criminal charge at a criminal trial against a defendant, a § 1983 claim mаy lie against the officer who took the statement.“); see also Chavez, 538 U.S. at 769 (plurality opinion); Elstad, 470 U.S. at 306 n.1. As the panel explained, our decision is aligned with most of the circuits that have considered the issue after Dickerson and Chavez. See Tekoh, 985 F.3d at 723. But more importantly, whatever the tally of circuits, everyone agrees that we are not alone (Dissent at 25-26), so granting rehearing en banc would not eliminate the conflict but at most would simply move us from one side to the other. Nor do the dissenters suggest that the panel‘s decision, the product of a quirky set of facts that required us to confront this issue for the first time in the five decades since Miranda was decided, threatens to bury the distriсt courts of the western United States beneath an avalanche of section 1983 Miranda litigation.
There remains only the objection that “our interpretation of the Self-Incrimination Clause is detached from text and history.”
BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA, BENNETT, R. NELSON, BRESS, and VANDYKE, dissenting from the denial of rehearing en banc:
Most Americans can likely recite the Miranda warnings by heart: the right to remain silent, that any statements given can be used against you, the right to an attorney during questioning, and the right to have an attorney appointed. Many also know that the Supreme Court announced these warnings in the watershed case, Miranda v. Arizona, 384 U.S. 436 (1966). But few, I venture to guess, can identify the origin and nature of the warnings. Is Miranda a right mandated by the Fifth Amendment‘s Self- Incrimination Clause? Or are the warnings prophylactic rules created by judges to safeguard the people‘s rights?
Terence Tekoh asks us to resolve these questions. A police officer questioned him about a crime committed at the hospital where he worked. Tekoh agreed to speak with the officer, but the officer never gave him the Miranda warnings. Tekoh eventually confessed to the crime. He was charged, tried, and acquitted—even after the introduction of his confession at trial.
Following his acquittal, Tekoh sued the officer under
The central issue in this case, therefore, is whether Miranda warnings amount to a constitutional right. The question is important because
Before reaching this question, we should have heeded what the Supreme Court has said about the matter. Many times, the Court has discussed the nature of Miranda. And the answer could not be clearer:
The Court has described Miranda warnings as “prophylactic” at least 21 times and called them a “constitutional right” zero times.
With this background, this should have been a straightforward case. Under Supreme Court precedent, a Miranda warning is nоt a constitutional right, and we should have affirmed the judgment accordingly. But that is not what happened. Our court reversed, holding that Tekoh need only show that his confession was taken in violation of Miranda and later used against him in a criminal proceeding to prove his
Rather than following the overwhelming weight of Supreme Court authority, we justify our decision with cherry-picked lines from a few cases—though none (save the Seventh Circuit) directly hold as we do today. In doing so, we also place ourselves at direct odds with six of our fellow circuit courts. And so yet again, our court embarks on brazen judicial overreach.
To be clear, this case has nothing to do with whether Miranda warnings are required before custodial interrogation—they are. Neither does it deal with whether un-Mirandized statements must be excluded from the government‘s case-in-chief—Supreme Court case law says they should be. Nor does this case ask whether Tekoh was coerced into confessing—our court deemed coercion irrelevant. Instead, the narrow question before the court was whether the introduction of an un-Mirandized statement at trial alone constitutes the violation of a “right” secured by the Constitution. Our court‘s answer? Yes, the lack of Miranda warnings violates the Fifth Amendment even if subsequent statements were freely and voluntarily given. In adopting this novel reading of Miranda, our court contravenes the text and history of the Fifth Amendment and the undeniable weight of precedent. Along the way, our court‘s decision pushes us further than others in rewriting the Fifth Amendment.
For this reason, I respectfully dissent from the denial of rehearing en banc.
I.
A.
The Fifth Amendment‘s Self-Incrimination Clause provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”
What originated in the old world quickly made its way over the Atlantic. By the Founding, “the principle of the nemo tenetur maxim was simply taken for granted and so deeply accepted that its constitutional expressiоn had the mechanical quality of a ritualistic gesture in favor of a self-evident truth needing no explanation.” Leonard W. Levy, Origins of the Fifth Amendment 430 (1968). Well before the Constitution was ratified, the right was ubiquitous: each of the eight states that had a separate bill of rights prohibited compelled self-incrimination. Id. at 412. Among the first proposed amendments to the federal Constitution was the right against self-incrimination. See id. at 422-23; see also Brown, 161 U.S. at 597 (noting that the maxim, “which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment“). Justice Story confirmed that the Self-Incrimination Clause was “but an аffirmance of a common law privilege.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1782, at 660 (Boston, Hilliard, Gray & Co. 1833).
The right‘s focus on voluntariness remained throughout the transition from English to American common law. An early American treatise explained that “a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” 2 William Oldnall Russell & Charles Sprengel Greaves, A Treatise on Crimes and Misdemeanors 826 (5th Am. ed., 1845) (emphasis omitted).
Eаrly precedent confirmed the basic common law understanding of the Clause—that its lodestar is voluntariness, not prophylaxis. According to Chief Justice Marshall, it was “a settled maxim of law that no man is bound to criminate himself,” and that if a person‘s answer to a question might incriminate him, “it must rest with himself, who alone can tell what it would be, to answer the question or not.” United States v. Burr, 25 F. Cas. 38, 39-40 (C.C.D. Va. 1807).
While legitimate debate may remain around its scope, as a matter of history, the right against self-incrimination did not include the right to be given particular warnings before custodial interrogation may begin. From the Fifth Amendment‘s ratification to the mid-20th century, neither the text nor the common law right was understood to require law enforcement officers to give such warnings.
B.
It was not until almost 200 years after our Founding that the Supreme Court announced the requirement of Miranda warnings in 1966. Miranda, 384 U.S. 436. That decision, however, does not suggest that Miranda warnings are part of the Fifth
In Miranda, the Supreme Court began by raising concerns with the police tactics used to obtain confessions from those in custody. Id. at 445-55. Recounting the various psychological measures employed, the Court was аlarmed that police regularly “persuade, trick, or cajole [those in custody] out of exercising [their] constitutional rights.” Id. at 455. The Court decried the “interrogation environment . . . created for no purpose other than to subjugate the individual to the will of his examiner.” Id. at 457. To counter these tactics, the Court warned that “adequate protective devices” are necessary to counter “the compulsion inherent in custodial surroundings” and to ensure that statements made in custody are “truly” the product of “free choice.” Id. at 458.
The Court thus adopted the requirement of the Miranda warnings as “proper safeguards” to “combat the[] [inherently compelling] рressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination.” Id. at 467. The Court was concerned that, without such warnings, the accused would be “compel[led] . . . to speak where he would not otherwise do so freely.” Id.
Importantly, the Court did not state that the Miranda warnings were anything more than prophylactic. It even refused to say that “the Constitution necessarily requires adherence to any particular” pre-interrogation procedures. Id. Instead, the Court was open to federal and state governments devising “potential alternatives for protecting the privilege” outsidе of Miranda warnings. Id. Indeed, the Court clarified that its “decision in no way creates a constitutional straitjacket.” Id. Nothing in Miranda itself, therefore, can be said to constitutionalize its eponymous warnings.
This understanding of Miranda as prophylactic continued in the decades that followed. For example, in Michigan v. Tucker, 417 U.S. 433 (1974), the Court described the Miranda warnings as merely a “supplement” to constitutional doctrine, not doctrine itself. Id. at 443. The Court noted that Miranda “established a set of specific protective guidelines” that would “help police officers conduct interrogations without facing a continued risk that valuable evidence would be lost.” Id. And it distinguished between police conduct that deprives a рerson of their “privilege against compulsory self-incrimination” and police conduct that failed to provide “the full measure of procedural safeguards associated with that right.” Id. at 444. So, even though the suspect in Tucker did not receive the entire complement of Miranda warnings, the Court refused to exclude his statements since his interrogation was not coercive. Id. at 445, 452.
The Court emphasized this same understanding of Miranda in New York v. Quarles, 467 U.S. 649 (1984). In that case, an officer asked a suspect where he disposed of a firearm before formally placing the suspect under arrest and before administering Miranda warnings. Id. at 652. Holding the suspect‘s answer admissible, the Court explained that “absent some officially coerced self-accusation, the Fifth Amendment privilege is not viоlated
A few years later in Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that, without coercion, an initial failure to administеr Miranda warnings did not taint a suspect‘s subsequent, Mirandized admission. Id. at 312-14. As before, the Court reiterated that the Miranda rule “serves the Fifth Amendment,” but “sweeps more broadly than the Fifth Amendment itself.” Id. at 306. “It may be triggered even in the absence of a Fifth Amendment violation,” because the Amendment itself is concerned only with compelled testimony. Id. at 306-07. As a result, the Court explained, ”Miranda‘s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.” Id. at 307.
Supreme Court precedent, then, has uniformly recognized Miranda rules as prophylactic safeguards of the Fifth Amendment right—not a constitutional right in and of itself. And contrary to this court‘s holding, Dickerson v. United States, 530 U.S. 428 (2000), did not change that analysis. That case involved a congressional enactment to effectively оverrule Miranda. Id. at 436 (noting that
Nowhere in the opinion, however, did the Court say that the introduction at trial of an un-Mirandized, yet voluntary, confession violates the Fifth Amendment by itself. In other words, it never described Miranda as a constitutional “right,” but called it something different—a “constitutional rulе.” Critically, the Court recognized just this: the dissent invited the Dickerson majority to “hold that the Miranda warnings are required by the Constitution” to avoid “judicial overreach[].” Id. at 442.1 But the majority
required pre-interrogation warnings would go further than Miranda, and it refused to do so.
C.
Given the text and history of the Self-Incrimination Clause and the overwhelming weight of Supreme Court precedent, our court was wrong to rule that the lack of Miranda warnings by itself violates the Constitution for purposes of
To begin, the text of the Fifth Amendment in no way leads to our court‘s contrary reading—it says nothing about a pre-interrogation right to be advised of the right against self-incrimination. The long history of the common law right likewise provides no support for a fundamental right to be warned. Instead, the text and history show that the Self-Incrimination Clause protects against coerced or compelled confessions, and mandates that any statement used against an accused at trial be freely and voluntarily given.
And by the plain terms of the Miranda decision and at least 21 other Supreme Court cases interpreting it,2 the absence of its warnings cannot sustain a claim for money damages. These cases all describe the Miranda warnings as “prophylactic,” Quarles, 467 U.S. at 654, “procedural safeguards,” Miranda, 384 U.S. at 444, or “protective
guidelines,” Tucker, 417 U.S. at 443. Not one of them describes Miranda warnings as a “constitutional right.”
This distinction is important because
Sо the central question for the jury on Tekoh‘s claim was whether the confession admitted at trial was improperly coerced, not merely whether Miranda was violated. Of course, as the district court recognized, whether Miranda warnings were given is a factor—but only a factor—in determining the voluntariness of Tekoh‘s confession under the totality of the circumstances.
The Court confirmed this understanding in Chavez. In that case, a plaintiff brought a
Justice Souter, joined by Justice Breyer, likewise concurred in denying relief under
“complementary protection” to and “outside the core” of the Fifth Amendment. Id. at 777-78. While noting that the “absence of Miranda warnings” as “a basis for a § 1983 action under any circumstance” was not before the Court, Justice Souter questioned the need for civil liability when certain non-core Fifth Amendment violations occurred, like “whenever the police fail to honor Miranda.” Id. at 778-79, 779 n.* (emphasis added). He noted that “[r]ecognizing an action for damages in [such a case] not only would revolutionize Fifth . . . Amendment law,” but would have to be justified as “necessary in aid of the basic guarantee.” Id. at 779. But there was “no reason to believe” an extension of
Chavez thus removes any doubt over whether Tekoh can bring a
The year after Chavez, the Court again reinforced the “prophylactic” nature of Miranda post-Dickerson. See United States v. Patane, 542 U.S. 630, 636, 639 (2004) (plurality opinion). At issue was whether physical evidence obtained as the fruit of an unwarned, but voluntary, statement was admissible. Id. at 633-34. A plurality of three Justices explained that “a mere failure to give Miranda warnings does not, by itself, violate a suspect‘s constitutional rights.” Id. at 641. According to the plurality, this was “evident in many of [the Court‘s] pre-Dickerson cases,” and the Court has “adhered to this view since Dickerson.” Id. The plurality noted that ”Dickerson‘s characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clаuse and any judge-made rule designed to protect it.” Id. at 643. And admitting evidence that is the fruit of a Miranda violation without more “presents no risk that a defendant‘s coerced statements . . . will be used against him at a criminal trial.” Id.
Justice Kennedy, joined by Justice O‘Connor, concurred and agreed with the majority that Dickerson “did not undermine” the Court‘s precedents like Elstad and Quarles. Id. at 644-45 (Kennedy, J., concurring in the judgment). Justice Kennedy only differed from the plurality in concluding that it was unnecessary to characterize the statements at issue as taken in violation of Miranda. Id. at 645.
Contrary to the panel‘s holding, then, Chavez and Patane add to the overwhelming precedent that a Miranda violation itself does not violate a constitutional right.4 Rather than
find every which way to distinguish or limit these cases, see Tekoh, 985 F.3d at 720-23, our court should have accepted their persuasive force and rejected Tekoh‘s theory of
Throughout its history, the Fifth Amendment‘s watchword has been “voluntariness.” Our court‘s decision substitutes that word with “warnings.” That is simply
D.
The court‘s decision today puts us at odds with six other circuit courts. The Second, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits hold, as I would, that Miranda is a procedural safeguard and the remedy for its violation is exclusion, not a
Contrary to the panel‘s position, it appears that the only out-of-circuit support for the panel‘s decision comes from the Seventh Circuit. See Sornberger v. City of Knoxville, 434 F.3d 1006, 1026-27 (7th Cir. 2006). In that case, the court permitted a
In short, our court is out of step with Supreme Court precedent and the vast majority of circuit courts around the country.
II.
Our decision here sets us apart from others in elevating Miranda warnings to the level of a constitutional right. By seizing on a few lines from a single case, we willfully ignore the mountain of Supreme Court precedent to the contrary. Worse yet, our interpretation of the Self-Incrimination Clause is detached from text and history. Given the clear weight of authority against us, we should not have been so bold.
I respectfully dissent.