Government Liability Update

Police Agency's Vehicle Pursuit Policy That Does Not Meet the POST Minimum Annual Training Hours Requirement Cannot Immunize Agency

In Flores v. City of San Diego, published September 15, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant city.  A motorcycle operator died while being pursued by police.  The operator's survivors sued the city for wrongful death.  The city moved for summary judgment based on the immunity under Vehicle Code section 17004.7.  Section 17004.7 immunizes public agencies from liability under Vehicle Code section 17001 if the agencies satisfy the statutory requirements for promulgating, adopting, and training officers on a vehicular pursuit policy.  The statute requires "regular and periodic training," which the statute defines as complying, at a minimum, with the training guidelines established pursuant to Penal Code section 13519.8.  Penal Code section 13519.8, in turn, authorizes the Peace Officers Standards and Training (POST) Commission to set standards pertaining to state-wide training of officers in the handling of high-speed vehicle pursuits.  The defendant department used a 25 minute, 50 second video to train officers on its pursuit policy.  POST Regulation 1081 require a minimum of one hour training annually on high-speed vehicle pursuit training.  The plaintiffs contended that because the city's pursuit policy training did not meet the one-hour minimum annual training regulation, the city was not entitled to immunity under section 17004.7.  The trial court granted summary judgment.

The appellate court concluded that the city had to meet the POST regulation's requirement of at least one hour training on the pursuit policy annually.  The court rejected the city's argument that the regulation applied only to entry-level training.  It further rejected the argument that the regulation does not apply to discretionary training such as vehicle pursuit policy training; if an agency wishes to avail itself of the section 17004.7 immunity, the training and adherence to the POST regulation become mandatory.  The court further rejected the argument that POST was not statutorily authorized to adopt minimum time standards for the training.  Because the City failed to show that its officers received a minimum of one hour training on the policy annually, it was not entitled to summary judgment.

Officer's Exchange of Shots with Hostage Taker Did Not Render Officer Liable for the Criminal's Later Murder of the Hostages

In Gorlick v. State of California, published September 8, 2022, the First District Court of Appeal, Division 3 affirmed dismissal of a defendant county, county sheriff’s office, and deputy sheriff after demurrer was sustained without leave to amend.  A disgruntled former resident of a veteran’s home entered the home, armed, and took hostages.  The defendant deputy was dispatched to the hostage situation.  He opened a metal door in the home, and saw the hostage taker holding a rifle.  The deputy closed the door, and fired at the hostage taker through the door.  The hostage taker fired back.  After exchanging several shots, the deputy held back for several minutes until backup arrived.  Hours later, an FBI SWAT team opened the door and found the hostage taker and hostages dead.  It was undisputed that none of the deputy’s shots hit the hostages or the hostage taker; the hostage taker killed the hostages and himself, allegedly within seconds after exchanging gunfire with the deputy.  The plaintiffs alleged the county defendants were liable for the wrongful death of the victims because they failed to exercise reasonable care in preparing for and responding to the shooting incident.  The trial court concluded that the county defendants did not owe a duty of care to the victims.

The appellate court agreed.  Peace officers owe a duty of care to act reasonably when using deadly force.  But the complaint failed to allege facts showing that this duty encompassed an obligation to prevent the hostage taker from shooting his hostages.  Under California law, a peace officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.  A corollary is that the officers have a duty in tort to act reasonably when using deadly force against a suspect.  An officer’s lack of due care when employing deadly force may give rise to liability for injuries incurred by third parties in the deadly force incident, when the officer injures those persons.  But no one suffered physical injury during the exchange of gunfire between the officer and the hostage taker.  Generally, there is no duty to protect others from the conduct of third parties.  By using deadly force, the deputy did not assume a tort duty of care to the hostages to prevent the hostage taker from killing them.  Case law differentiates injury caused by an officer’s allegedly negligent use of deadly force (which is actionable) from failure to prevent a third party’s use of force (which is generally not actionable).  There are exceptions from the rule that a person owes no duty to protect others from perils the defendant did not create.  But none of them applied here.  The plaintiffs did not allege facts showing that the deputy placed the hostages in danger.  By discharging his duty to protect the public as a whole from the hostage taker’s criminal actions, the deputy did not assume a duty of care to the hostages distinct from or greater than his duty to the public.  The complaint did not plead facts linking the deputy’s acts to the hostages’ death, and therefore did not establish that the deputy’s acts increased the risk the hostages already faced.  To state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a direct connection between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct.  Neither the speculative conclusion that the gunfire exchange prompted the hostage taker to shoot the hostages, nor the allegation that the deputy should have entered the room and killed the hostage taker after making his presence known, showed the required connection.  An officer does not increase a risk of harm by failing to stop an individual from acting dangerously.  The court also rejected the argument that the deputy or county entered into a special relationship with the victims or the killer.  The deputy’s mere appearance and attempt to stop the crime did not create a special relationship with the victims.  The plaintiffs did not allege that the hostages detrimentally relied on anything the deputy did or said.  An “interagency agreement” between the sheriff’s department and the entity running the home, requiring the department to respond to all calls for service at the home, did not create a contractual duty for the department to protect the decedents from the killer.  While the department had verbal interactions with the home’s staff about security issues at the home, this did not create a special relationship analogous to that in cases where police secure a person’s cooperation in exchange for promises of protection or assurances that a threat does not exist.

Prison Guard Entitled to Qualified Immunity for Shooting Inmate in Fight with Less-Lethal Round, and Nurse Entitled to Qualified Immunity for Subsequent Examination of Prisoner

In Simmons v. Arnett, published August 31, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for a prison guard and a prison nurse in a 42 U.S.C. section 1983 lawsuit alleging violation of the 8th Amendment.  The plaintiff prisoner was attacked by another inmate.  The defendant guard was the only guard in the command center.  He could not leave the command center.  He had both a semi-automatic rifle loaded with live rounds, and a less-lethal 40 mm. weapon that shot sponge-tipped plastic rounds.  He used the less-lethal weapon to shoot at the plaintiff inmate to break up the fight.  He shot the plaintiff in the leg, breaking the leg, and then in the thigh and buttocks.   Prison staff immediately took the plaintiff to the prison's medical room.  The defendant nurse asked the plaintiff how he was injured.  He stated he slipped in water.  She wrote that down.  He then said he had been shot in the backside.  She wrote that he had lower leg pain.  WIthin minutes, she had him transferred to the prison's emergency room, where his leg and later his thigh and buttocks were treated.  The notes she made were not sent with him.  He alleged that the guard used excessive force and that the nurse was deliberately indifferent in her medical care.

The appellate panel majority ruled that neither defendant violated the plaintiff's 8th Amendment rights.  A use of force violates the 8th Amendment if it is not a good faith effort to maintain or enforce discipline, and the defendant instead acts maliciously and sadistically for the purpose of causing harm.  Viewing the facts in the light most favorable to the plaintiff (including the fact that the plaintiff was not fighting back), the guard acted reasonably in acting to stop the fight without leaving the command center, and in using the least use of force available to him.  Further, the guard was entitled to qualified immunity, because his conduct did not violate clearly-established law.  Case law holding that use of deadly force on an inmate bystander to a fight violated the 8th Amendment did not clearly establish the use of force was excessive, because the case did not involve a guard who could not leave his post and who used less-lethal force.  The nurse was entitled to summary judgment because the facts did not show any deliberate indifference on her part in failing to make a complete examination, and in writing the plaintiff's own description of what caused his injury in the notes (which were not used in the inmate's treatment).  Instead, the facts showed that the nurse acted properly.

A dissenting judge agreed the nurse was entitled to summary judgment, but opined that qualified immunity should not be found at the summary judgment stage.  If the facts were resolved in the inmates favor, the judge wrote, the use of force on an inmate who was not fighting violated clearly established law.

Police Properly Demanded Drivers Licenses at Checkpoint and Properly arrested Driver Who Refused to Show One

In Demarest v. City of Vallejo, published August 16, 2022, the 9th Circuit affirmed summary judgment for the defendant city and defendant police officer in a 42 U.S.C. section 1983 case.  The plaintiff was suffering from a staph infection on his back.  He encountered a DUI and driver's license checkpoint.  Under the checkpoint plan, all vehicles were stopped unless backup exceeded five minutes.  Officers were to screen drivers for DUI, verify they had a license, and provide an educational handout.  Although drivers' licenses  were to be checked, the checkpoint's purpose was to remove intoxicated drivers from the road and deter intoxicated driving, not to remove unlicensed drivers.  The plaintiff refused to show his driver's license at the checkpoint.  The defendant officer opened the door of his car, grabbed his left wrist, removed him from the vehicle, handcuffed him, and told him he was under arrest.  The arrest process, which took one to two seconds, exacerbated the plaintiff's back pain.  When he was booked, a utility knife was discovered hanging around the plaintiff's neck.  He was charged with resisting arrest and carrying a concealed dirk or dagger.  He participated in a diversion program and the charges were dismissed.  He then sued the officer for violating his 4th Amendment rights by demanding to see his license and refusing to let him proceed; detaining him without reasonable suspicion; arresting him without probable cause; and using excessive force.  He sued the city for municipal liability for an alleged official policy of conducting driver's license checks at DUI checkpoints; and for failure to train.  The district court ruled that neither the officer nor the city violated the 4th Amendment.

The court of appeals agreed.  A municipality may set up a checkpoint to stop cars without reasonable suspicion of committing a crime, if it passes a two-part test.  First, the court must determine whether the checkpoint is per se invalid because its primary purpose is to advance the general interest in crime control.  If not, the court determines the checkpoint's reasonableness (and therefore constitutionality) based on the individual circumstances.  Here, the checkpoint satisfied the first step.  The primary purpose of the checkpoint was the proper one of reducing the danger of drunk driving.  Although removing unlicensed drivers from the road was not a purpose of the checkpoint, that did not detract from the checkpoint's proper purpose.  Further, if removing unlicensed drivers from the road was a purpose, that highway safety purpose would have been proper.  On the second step, stopping the plaintiff's car based on the sobriety checkpoint was proper under the 4th Amendment.   The court rejected the argument that the purpose of having a sobriety checkpoint rendered checking licenses improper.  The subjective intent behind the stop is not relevant to the second step.  The systematic addition of driver's licenses checks to the DUI checkpoint was objectively reasonable.  The check only minimally interfered with liberty of the sort the 4th Amendment seeks to protect.  It was not an investigation of a crime; the contribution to the length of the stop was minimal; and the programmatic guidelines of the stop minimized discretion of officers at the scene.  The plaintiff's detention and arrest did not violate the 4th Amendment, because the officer had probable cause the plaintiff violated Vehicle Code section 12951 by refusing to show his license.  Finally, the excessive force claim fails, because the use of force incidental to the arrest was reasonable, and the plaintiff failed to show evidence the officer using the force was aware of the plaintiff's back injury when the force was used.

Social Media Posts of Police Officer Protected by First Amendment Despite Objectionable Content

In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983.  The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department.  While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam.  Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts.  This generated public criticism of the department and negative media attention.  The department investigated the posts.  The officer asserted that he posted the items to drive discussion about issues in the news at the time.  The investigation concluded that the officer had violated the department's social media policy.  Before the department decided what discipline to impose, the officer and others filed the lawsuit.  The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad.  They sought damages and injunctive relief.  The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge.  It then granted summary judgment on the facial vagueness claim.

The 9th Circuit reversed the dismissal of the retaliation claim.  The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies.  The district court determined that the officer had not spoken on a matter of public concern.  That is an issue of law subject to de novo review.  The court analyzes the content, form, and context in which the statements are made.  The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department.  Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile.  The intended audience was not limited to fellow employees, and the posts were open to the public.  While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern.  The court remanded the claim to the district court for further development of the record.  The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference.  The department may permissibly consider the special status officers occupy in the community  when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to
effectively carry out its mission. 

Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court.  Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations.  The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage.  The department does not have a legitimate interest in prohibiting speech merely on those grounds.  The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.

 

Alleged Participation in Obtaining Restraining Order without Informing Court of Custody Order, and Participation in Removing Child without Reasonable Cause and Detaining Child beyond Reasonable Period, Violates Clearly Established Law

in David v. Kaulukukui, published June 27, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer's motion to dismiss a 42 U.S.C. section 1983 lawsuit.  According to the complaint, a custody order awarded the plaintiff full custody of her daughter, denied the father visitation rights, and ordered that the father stay away and have no contact with the plaintiff.  The plaintiff and daughter lived on the Island of Hawaii, while the father lived on Kauai.  The plaintiff and child visited family on Kauai.  During the visit, the father had contact with the plaintiff and daughter over the plaintiff's protests.  The plaintiff then took the daughter to the father's workplace and demanded he apologize to the daughter.  When the plaintiff yelled at, pushed, and taunted the father, the police arrested her.  She posted bail, and she and the daughter returned to the island of Hawaii.  According to the plaintiff's complaint, after the altercation the defendant officer met with the father at the Kauai county police department.  The officer prepared and filed a petition for a protective order in family court on the father's behalf seeking to prohibit the mother from contacting any of the father's family members, including the daughter.  The petition did not mention the custody order.  The family court granted the petition and issued a TRO prohibiting the mother from having any contact with her daughter.  Two weeks later, a child welfare services official visited the mother's home and rated the mother a low to moderate risk score.  During the visit, the mother informed the CWS worker of the custody order.  A few days later, CWS officials conducted a "grab and go," taking the daughter from her school without a court order or prior notice to the mother, and put her in the father's custody on Kauai.  When the plaintiff attempted to report to the Kauai county police department that the daughter had been "kidnapped and was in the custody of an allegedly abusive, non-custodial parent, the defendant officer allegedly worked with other defendants to prevent the allegations from being investigated or a police report from being filed.  Eleven days later, the family court held a hearing on the TRO, learned of the custody order, and dismissed the prohibition against the plaintiff having contact with her daughter.  The daughter was returned home 21 days after being grabbed from her school.  The district court denied the defendant officer's motion for dismissal based on qualified immunity, on the ground that the operative complaint stated a plausible claim for violation of a clearly established right to familial association.

The court of appeals agreed.  A right to familial association under the 14th Amendment (for parents) and the 4th Amendment (for children) is clearly established.  9th Circuit case law at the time of the incident clearly established that as part of that right, parents and children have a right to be free from judicial deception in child custody proceedings and removal orders.  Judicial deception may occur through either affirmative misrepresentation or deliberate omission.  The facts alleged state a plausible claim that the defendant officer prepared a petition that intentionally omitted any reference to the custody order, and did not otherwise inform the court of the order; and that had the judge been informed, the court would not have granted the order.  It therefore stated a plausible claim for violation of the mother's and child's right familial association based on judicial deception.  Any reasonable official would understand that deliberately concealing material custody information from a court for the purpose of depriving a custodial parent of a child violates the law.  The allegations that the defendant officer's participation in removing the daughter and placing her in the father's custody also stated a plausible claim that the defendant violated clearly established law that removal of a child from a parent without the parent's consent or a court order, absent reasonable cause to believe the child is in imminent danger, violates the right to familial association.  The facts alleged also state a plausible claim that the continued separation exceeded that reasonably necessary to avert the specific injury at issue.

Use of Police Car As Roadblock for Fleeing Bicyclist Did Not Violate Clearly-Established Law

In Seidner v. De Vries, published June 30, 2022, a divided panel of the 9th Circuit Court of Appeals reversed a district court's denial of summary judgment based on qualified immunity in a 42 U.S.C. section 1983 case based on alleged use of excessive force.  The plaintiff was riding his bicycle on a well-lit street without a front light, in violation of state law.  The defendant officer pulled his car ahead of the plaintiff to confirm the violation, and activated his lights.  As the officer stepped out of his car to talk to the plaintiff, the plaintiff continued pedaling past the officer and began to flee.  The officer got back into the car and pursue the bicyclist, who was traveling around 15 miles per hour.  The officer accelerated, pulled his car at an angle across the street, and stopped.  As the officer started to step out of the car, the plaintiff's bicycle crashed into the car.  The plaintiff was injured.  The plaintiff sued the officer for use of excessive force.  The district court denied the officer's motion for summary judgment, ruling that a jury could find the use of force excessive and that the law clearly established that the conduct could constitute excessive force.  The officer brought an interlocutory appeal.

The panel majority ruled that the officer was not entitled to summary judgment on the first prong of qualified immunity (whether the officer violated the right at issue) but was entitled to summary judgment on the second prong (whether the law was clearly established).  On the first prong, under the circumstances, the officer used an intermediate level of force in setting up a roadblock in front of a fleeing bicycle, particularly since the bike crashed into the car rather than the car hitting the bike.  The government's interest in using force for a minor bicycle violation was low, but once the plaintiff started fleeing, the government had an interest justifying some use of force to stop him from fleeing despite how the incident arose.  To conclude otherwise would hamstring law enforcement officers in trying to hold suspects on bikes accountable for unlawful conduct.  Under the circumstances, the court cannot say as a matter of law that a jury would be compelled to find the way the officer used his car to stop the bicyclist reasonable.  There was therefore an issue of fact on reasonableness that prevented summary judgment on the first prong.  On the second prong, there was no law at the time of the incident that put beyond debate that the officer's use of his car as a roadblock for a bicyclist under similar circumstances would be excessive force.  The law was therefore not clearly established, and the officer was entitled to summary judgment based on qualified immunity.

One judge concurred that the officer was entitled to qualified immunity on the second prong, but would hold that the use of force was excessive.

Because Sheriff Was Not Employee of County, Report of Investigation Commissioned by County of Complaint against Sheriff Is Not a Personnel Record Exempt from CPRA

In Essick v. County of Sonoma, published June 29, 2022, the First District Court of Appeal, Division 4 affirmed a trial court's denial of a preliminary injunction in a reverse-CPRA case.  A county supervisor lodged with the county administrator a harassment complaint against the county sheriff.  The county administrator, HR director, and chair of the board of supervisors retained a private law firm to conduct an impartial investigation.  After the report was rendered, the board of supervisors gave the sheriff a Formal Notice of Outcome of Investigation.  A newspaper requested the investigation report under the California Public Records Act.  The county informed the sheriff that it had received the request and intended to release the report.  The sheriff's attorney objected to the proposed release on the ground that the investigation report was a personnel document protected from disclosure under the Pitchess statutes, particularly Penal Code section 832.7.  The county disagreed.  The sheriff brought a complaint for declaratory and injunctive relief requesting the court bar the release of the report.  The trial court issued a temporary restraining order, then denied the requested preliminary injunction, ruling there was no evidence to show the investigative records should be classified as "personnel records" under section 832.7.  The sheriff appealed.

The appellate court agreed with the trial court.  The issue is whether Government Code section 6254, subdivision (k) exempted the report from production under the CPRA.  Subdivision (k) incorporates other disclosure prohibitions established under law, including the Pitchess statutes protecting officer personnel records.  The report was not a personnel record, because the county was not the sheriff's employer.  Although the county has chosen to pay its elected officials, under the California constitution the sheriff is a public official elected by the voters, and is ultimately responsible to them, rather than the county board of supervisors or anyone else in county government.  The board of supervisors cannot hire, fire, or discipline the sheriff.  The county's investigation of the sheriff does not make him the county's employee.  The report was the product of an independent outside inquiry.  That the county promised the sheriff the investigation would comply with the Peace Officers' Bill of Rights did not estop the county from releasing the report, because POBRA does not contain any provisions exempting documents from production under the CPRA.

Claim for Fabrication of Evidence Does Not Require Evidence of Motive or “But For” Causation

In Richards v. County of San Bernardino, published June 24, 2022, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant county and a county investigator in a 42 U.S.C. section 1983 action.  The plaintiff was accused of murdering his wife.  The defendant investigator found, under the fingernails of fingers of the remains that had been severed after the autopsy (and that had been scraped for trace evidence) a visible blue fiber that matched a shirt the plaintiff had been wearing.  Two trials of the charges against the plaintiff ended with hung juries.  A third ended in mistrial.  Before the fourth attempt, the county retained a forensic odontologist who opined a bruise on the decedent’s hand (which the medical examiner had determined was not a bitemark) was a bitemark that was consistent with the plaintiff’s teeth.  Plaintiff spent 20 years in prison before a habeas corpus petition with new evidence (including the odontologist recanting his testimony) resulted in vacation of his conviction.  The plaintiff then sued various sheriff’s officers and the county for constitutional violations allegedly committed during the murder investigation and prosecution.  In particular, he alleged that the investigator had fabricated the blue fiber evidence, and that the county’s customs and policies resulted in the alleged constitutional violations.  The district court granted summary judgment for all defendants.  It found that the plaintiff did not carry his burden of showing any constitutional errors, and therefore could not prove the county’s Monell liability.

The court of appeals disagreed on those points.  It held that the district court erred in rejecting the deliberate fabrication claim on the grounds that the plaintiff was unable to point to evidence of a motive to deliberately manipulate the evidence; there were more plausible explanations for the late discovery of the fibers; and that the plaintiff had failed to prove causation.  There is a clearly established constitutional due process right not to be subjected to criminal charges based on false evidence deliberately fabricated by the government.  The district court erred in requiring the plaintiff to show evidence of motive.  While motive is potentially strong circumstantial evidence in support of a fabrication claim, it is never required.  The plaintiff had direct evidence of fabrication.  He therefore had no need to show motive.  The finding of a more plausible explanation of the fiber was error, because it resulted from the district court weighing the evidence.  The district court had to accept the plaintiff’s evidence as true without making credibility determinations or weighing the evidence.  Further, the plaintiff presented evidence from which a jury could reasonably infer that the fibers were not under the decedent’s fingernails at the time of the autopsy.  The district court also erred in concluding that the fiber evidence was not the “but for” cause of the conviction, in light of the bitemark.  Because of the fundamental due process right at issue, the correct standard was not but-for causation, but rather whether the evidence was “material”—i.e, there is a reasonable likelihood that the allegedly fabricated evidence could have affected the judgment of the jury.  Finally, the court erred in holding the Monell claims failed because there was no predicate constitutional violation by a government official.  Because there was an issue of fact as to whether the investigator fabricated the evidence, there was an issue of fact on constitutional violation.  Further, even if no individual violated the Constitution, if the plaintiff can establish he suffered constitutional injury by a county policy, the fact that individual officers are exonerated is immaterial to Monell liability.  Here, the plaintiff put forth theories of Monell liability not premised on findings of liability by any individual officer.

Use of Criminal Defendant’s Un-Mirandized Statement against Him Does Not Support Claim under 42 U.S.C. Section 1983

In Vega v. Tekoh, published June 23, 2022, the U.S. Supreme Court reversed the 9th Circuit’s decision that itself reversed a verdict in a suit under 42 U.S.C. section 1983.    The plaintiff was questioned by police at his workplace.  He was not given Miranda warnings before questioning.  His statement was used against him at his criminal trial.  The trial court ruled that because he was not in custody during questioning, his statement could be used against him.  The case ended in a mistrial.  In the retrial, the statement was again used against him.  He was acquitted.  He then sued the officer who questioned him.  Among his claims was that the officer violated his Fifth Amendment right against self-incrimination.  The district court declined to instruct the jury to find a Fifth Amendment violation if it determined that the defendant took a statement in violation of Miranda that was then improperly used against the plaintiff.  The jury found for the defendant.  The Ninth Circuit reversed, holding that use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment, and may support a section 1983 claim.

 

The Supreme Court majority reversed.  Examining the history of decisions interpreting its ruling in Miranda, the court concluded that the Miranda rule is a prophylactic rule that protects the rights of a person questioned in custody, including Fifth Amendment rights; and that this right is Constitutionally based.  But a violation of the Miranda right is not itself tantamount to violation of the Fifth Amendment right against self-incrimination.  Further, although it can be argued that Miranda rules constitute federal law, that law should not be expanded to include the right to sue for damages under section 1983 for its violation.  Judicially-crafted prophylactic rules should apply only where the benefits outweigh the costs.  The costs of allowing section 1983 claims for violation of Miranda rights would outweigh the costs.

 

Three justices opined that Miranda protections are rights secured by the Constitution, and therefore violation of them should be actionable under section 1983.

 

 

 

https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf