FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERENCE B. TEKOH, No. 18-56414
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-07297-
GW-SK
COUNTY OF LOS ANGELES; DENNIS
STANGELAND, Sergeant; CARLOS
VEGA, Deputy, ORDER
Defendants-Appellees,
and
LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT; DOES, 1 TO 10,
Defendants.
Filed June 3, 2021
Before: Kim McLane Wardlaw, Mary H. Murguia, and
Eric D. Miller, Circuit Judges.
Order;
Concurrence by Judge Miller;
Dissent by Judge Bumatay
2 TEKOH V. COUNTY OF LOS ANGELES
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 against 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 42 U.S.C. § 1983.
Concurring in the denial of rehearing en banc, Judge
Miller, joined by Judges Wardlaw and Murguia, 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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TEKOH V. COUNTY OF LOS ANGELES 3
Miranda v. Arizona, 384 U.S. 436 (1966), is among the
“rights, privileges, or immunities secured by the
Constitution and laws,” so that 42 U.S.C. § 1983 provides a
remedy when the prosecution introduces a defendant’s un-
Mirandized statement in its case in chief at his criminal trial.
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 § 1983. Rather,
Miranda is a procedural safeguard and the remedy for its
violation is exclusion, not a § 1983 action.
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.
Antonio K. Kizzie (argued) and Rickey Ivie, Ivie McNeill
Wyatt Purcell & Diggs APLC, Los Angeles, California, for
Defendants-Appellees.
4 TEKOH V. COUNTY OF LOS ANGELES
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 banc.
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
Constitution and laws,” so that 42 U.S.C. § 1983 provides a
remedy when the prosecution introduces a defendant’s un-
Mirandized statement in its case in chief at his criminal trial.
The Supreme Court’s cases—most importantly, its
reaffirmation of Miranda in Dickerson v. United States,
530 U.S. 428 (2000)—make clear that the answer is yes.
TEKOH V. COUNTY OF LOS ANGELES 5
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.” U.S. Const. art. I, § 8, cl. 9. As such, we lack
authority to resolve contradictions in the Supreme Court’s
precedents. To the contrary, we have repeatedly been
admonished that “[i]f a precedent of [the Supreme] Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls.” Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005); State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
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 Court has
already done the necessary constitutional interpretation.
Like it or not, Miranda was not an originalist decision. That
is one of the reasons why Justice Scalia criticized it—in a
phrase echoed by today’s dissenters—as “a milestone of
judicial overreaching.” Dickerson, 530 U.S. at 465 (Scalia,
J., dissenting); cf. Dissent at 11–12. But we are not
dissenting Supreme Court Justices. As individuals, we are
free to criticize Miranda, but as a court, our task is simply to
interpret and apply it.
6 TEKOH V. COUNTY OF LOS ANGELES
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 before 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 he
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,”
TEKOH V. COUNTY OF LOS ANGELES 7
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,” 42 U.S.C. § 1983, then
why is Congress not allowed to dispense with it?
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.” 28 U.S.C. § 2254(a). No one
thinks Miranda comes from a treaty, so a Miranda violation
must be a “violation of the Constitution or laws.” The
Miranda right, therefore, must be one of those rights
“secured by the Constitution and laws.” 42 U.S.C. § 1983.
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 that
section 1983 is not available to a plaintiff who complains of
the violation of a statute that creates abstract interests but not
“individually enforceable private rights.” Gonzaga Univ. v.
Doe, 536 U.S. 273, 283, 290 (2002). Those cases do not
apply here because Miranda indisputably creates individual
legal rights that are judicially enforceable. (Any prosecutor
who doubts this can try to introduce an un-Mirandized
confession and then watch what happens.) The Supreme
Court observed in Withrow that Miranda “differs from” the
Fourth Amendment exclusionary rule precisely because that
rule, unlike Miranda, “is not a personal constitutional right.”
507 U.S. at 691 (quoting Stone v. Powell, 428 U.S. 465, 486
(1976)). Miranda therefore fits comfortably within the
ordinary understanding of a “right.” See id. (“‘Prophylactic’
though it may be, . . . Miranda safeguards ‘a fundamental
8 TEKOH V. COUNTY OF LOS ANGELES
trial right.’” (emphasis omitted) (quoting United States v.
Verdugo-Urquidez, 494 U.S. 259, 264 (1990))).
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
may 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
TEKOH V. COUNTY OF LOS ANGELES 9
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 district 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.” (Dissent at 26). That is a complaint about Miranda
and Dickerson, not the decision here. Perhaps the defendants
will find it helpful in preparing a petition for a writ of
certiorari, but it is a poor reason to grant rehearing en banc.
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-
10 TEKOH V. COUNTY OF LOS ANGELES
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
42 U.S.C. § 1983, alleging a violation of his Fifth
Amendment right. At trial, Tekoh argued that it was enough
for him to prevail if he proved that the officer obtained his
confession without providing him Miranda warnings. The
district court disagreed, instructing the jury that the officer
violated Tekoh’s Fifth Amendment right only if the officer
coerced Tekoh into confessing under the totality of the
circumstances. In other words, the district court determined
that the lack of Miranda warnings was a factor for a Fifth
Amendment violation, but it did not violate the right in and
of itself. The jury returned a full defense verdict, and Tekoh
appealed.
The central issue in this case, therefore, is whether
Miranda warnings amount to a constitutional right. The
question is important because § 1983 only provides a cause
of action for violating “any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C. § 1983.
Section 1983 won’t support liability for violating anything
less than a “right”—like prophylactic rules.
TEKOH V. COUNTY OF LOS ANGELES 11
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 not 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 § 1983 claim. That is because, we said, Miranda
was indeed a “right secured by the Constitution.” Tekoh v.
County of Los Angeles, 985 F.3d 713, 720 (9th Cir. 2021).
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
12 TEKOH V. COUNTY OF LOS ANGELES
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.” U.S. Const.
amend. V. The text of the Amendment does not provide for
a right to receive warnings before interrogation by a law
TEKOH V. COUNTY OF LOS ANGELES 13
enforcement officer, as envisioned by Miranda. Rather, the
Fifth Amendment enshrined the “ancient” English common
law right against self-incrimination known as nemo tenetur
seipsum prodere (“no man shall be compelled to criminate
himself”). See John H. Wigmore, Nemo Tenetur Seipsum
Prodere, 5 Harv. L. Rev. 71, 71 (1891); Brown v. Walker,
161 U.S. 591, 596–97 (1896). Under that maxim, “a
confession forced from the mind by the flattery of hope, or
by the torture of fear, comes in so questionable a shape when
it is to be considered as the evidence of guilt, that no credit
ought to be given to it; and therefore it is rejected.” R v.
Warickshall (1783), 168 Eng. Rep. 234, 235; 1 Leach 263,
263–64.
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 expression 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 affirmance of a common
law privilege.” 3 Joseph Story, Commentaries on the
Constitution of the United States § 1782, at 660 (Boston,
Hilliard, Gray & Co. 1833).
14 TEKOH V. COUNTY OF LOS ANGELES
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).
Early 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 Amendment. Instead, the opinion explicitly refers
TEKOH V. COUNTY OF LOS ANGELES 15
to the Miranda rules, not as a constitutional right, but as
“procedural safeguards effective to secure the privilege
against self-incrimination.” Id. at 444 (emphasis added).
Thus, Miranda itself offers no reason to conclude that it
announced a constitutional right.
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
alarmed 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] pressures” 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
16 TEKOH V. COUNTY OF LOS ANGELES
the privilege” outside 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 person 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 violated by even the most
damning admissions.” Id. at 654 (simplified); see id. at 659.
The Court then reaffirmed that Miranda’s prophylactic
warnings are “not themselves rights protected by the
TEKOH V. COUNTY OF LOS ANGELES 17
Constitution but are instead measures to insure that the right
against compulsory self-incrimination is protected.” Id.
at 654 (simplified). Rather than being a constitutional right,
Miranda warnings provide mere “practical reinforcement
for the Fifth Amendment right.” Id. (simplified). With no
coercion in the case, the Court created the “public safety”
exception to Miranda warnings. Id. at 655–56. It explained
that in some situations, “a threat to the public safety
outweighs the need for the prophylactic rule protecting the
Fifth Amendment’s privilege against self-incrimination.”
Id. at 657.
A few years later in Oregon v. Elstad, 470 U.S. 298
(1985), the Court held that, without coercion, an initial
failure to administer 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 overrule Miranda. Id. at 436 (noting that 18
U.S.C. § 3501 made “voluntariness” the “touchstone of
admissibility” without regard for Miranda warnings). The
18 TEKOH V. COUNTY OF LOS ANGELES
question in Dickerson was whether Congress could
supersede Miranda. Id. at 437. In answering “no,” the Court
held that Congress could not legislatively override a
“constitutional rule,” id. at 441, and described Miranda as a
“constitutional decision” with “constitutional
underpinnings,” id. at 438, 440 n.5. Because “Congress may
not legislatively supersede [the Court’s] decisions
interpreting and applying the Constitution,” the Court struck
down the law as unconstitutional. Id. at 437, 444.
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
rule.” 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 expressly
declined that invitation and simply denied that it was
overreaching, responding, “we need not go further than
Miranda to decide this case.” Id. The Court thus
acknowledged that holding that the Constitution itself
1
In dissent, Justice Scalia accused the majority of exercising “an
immense and frightening antidemocratic power” by striking down an Act
of Congress for violating a “constitutional rule.” Dickerson, 530 U.S.
at 445–46 (Scalia, J., dissenting). Justice Scalia invited the majority to
take the opinion “out of the realm of power-judging and into the
mainstream of legal reasoning” by simply declaring that Miranda was in
fact a constitutional right. Id. at 446. He observed that the majority
“cannot say that, because a majority of the Court does not believe it.” Id.
In his view, since the Court can only nullify statutes in contravention of
the Constitution, the Dickerson majority acted “in plain violation of the
Constitution.” Id.
TEKOH V. COUNTY OF LOS ANGELES 19
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 § 1983. That section provides a civil action
against state officials who cause a “deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983. Miranda warnings are neither
“rights, privileges, [n]or immunities” under the Constitution;
so a violation of Miranda alone cannot sustain money
damages under § 1983.
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
2
See chart, supra.
20 TEKOH V. COUNTY OF LOS ANGELES
guidelines,” Tucker, 417 U.S. at 443. Not one of them
describes Miranda warnings as a “constitutional right.”
This distinction is important because § 1983 only affords
a cause of action for “the violation of a federal right, not
merely a violation of federal law.” Blessing v. Freestone,
520 U.S. 329, 340 (1997); see also Carey v. Piphus, 435 U.S.
247, 254 (1978) (explaining that the “basic purpose of a
§ 1983” claim is “to compensate persons for injuries caused
by the deprivation of constitutional rights”). The Court has
been clear that “rights” are to be interpreted strictly in the
§ 1983 context; they don’t include “broader or vaguer
‘benefits’ or ‘interests.’” Gonzaga Univ. v. Doe, 536 U.S.
273, 283 (2002). They certainly don’t include “judicially
created prophylactic rules.” Chavez v. Martinez, 538 U.S.
760, 780 (2003) (Scalia, J., concurring in part in the
judgment).
So 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.
Dickerson did not change this understanding. In that
case, the Court expressly affirmed that it was not going
beyond Miranda. 530 U.S. at 442 (“[W]e need not go further
than Miranda to decide this case.”). Indeed, Dickerson
quotes Tucker’s language, without qualification, that
Miranda’s procedural safeguards are “not themselves rights
protected by the Constitution.” Id. at 438 (quoting Tucker,
417 U.S. at 444). To be sure, Dickerson announces that
Miranda is a “constitutional rule.” Id. at 428. But that is a
far cry from elevating it to a “constitutional right”—a
TEKOH V. COUNTY OF LOS ANGELES 21
promotion that the Court explicitly declined to allow. Id.
at 442. Accordingly, the best reading of Dickerson is that it
does not undermine the long line of cases characterizing
Miranda as a prophylactic rule and not a “constitutional
right.”
The Court confirmed this understanding in Chavez. In
that case, a plaintiff brought a § 1983 action against an
officer for questioning him without Miranda warnings—
much like this case except that his admissions were never
used against him in criminal proceedings. 538 U.S. at 764–
65 (plurality opinion). A plurality of four Justices reiterated
that Miranda remained a prophylactic rule and was not a
constitutional right. Id. at 772. The plurality explained that
“a violation of the constitutional right against self-
incrimination occurs only if one has been compelled to be a
witness against himself in a criminal case.” Id. at 770
(emphasis omitted). But “[r]ules designed to safeguard a
constitutional right . . . do not extend the scope of the
constitutional right itself.” Id. at 772. As a result,
“violations of judicially crafted prophylactic rules do not
violate the constitutional rights of any person.” Id. Because
Miranda is not a constitutional right, the plurality concluded
that the failure to provide Miranda warnings “cannot be
grounds for a § 1983 action.” Id. 3
Justice Souter, joined by Justice Breyer, likewise
concurred in denying relief under § 1983 for violating
Miranda. See id. at 777 (Souter, J., concurring in the
judgment). He agreed that Miranda warnings are solely a
3
Notably, Chief Justice Rehnquist, the author of Dickerson, joined
Justice Thomas’s plurality opinion in full. 538 U.S. at 763 n.*. So, our
court’s use of Dickerson to announce a sea-change in Miranda
jurisprudence would be lost on the author of that opinion himself.
22 TEKOH V. COUNTY OF LOS ANGELES
“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
§ 1983 to Miranda was necessary, because existing
measures such as “excluding testimonial admissions” had
been sufficient. Id. While there was “no failure of efficacy
infecting . . . Fifth Amendment law” requiring an extension
of § 1983, Justice Souter departed from the plurality and
suggested that the particular “outrageous conduct” by the
police in Chavez could give rise to a separate § 1983 claim
under substantive due process (a separate claim Tekoh did
not raise). Id.
Chavez thus removes any doubt over whether Tekoh can
bring a § 1983 action for violating Miranda. After Chavez,
“it is now clear that there is no cause of action for money
damages for violations of Miranda.” Erwin Chemerinsky,
Federal Jurisdiction § 8.9, at 631–32 (8th ed. 2021); see also
Renda v. King, 347 F.3d 550, 558 (3d Cir. 2003) (“[S]ix
Justices (Chief Justice Rehnquist, together with Justices
Thomas, O’Connor, Scalia, Souter, and Breyer) agreed that
mere custodial interrogation absent Miranda warnings is not
a basis for a § 1983 claim.”).
The year after Chavez, the Court again reinforced the
“prophylactic” nature of Miranda post-Dickerson. See
TEKOH V. COUNTY OF LOS ANGELES 23
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 Clause 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
4
Those two cases are not alone in calling Miranda prophylactic after
Dickerson. See Montejo v. Louisiana, 556 U.S. 778, 794 (2009)
(describing Miranda as “prophylactic protection of the right against
compelled self-incrimination”); Maryland v. Shatzer, 559 U.S. 98, 103
24 TEKOH V. COUNTY OF LOS ANGELES
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 § 1983
liability.
Throughout its history, the Fifth Amendment’s
watchword has been “voluntariness.” Our court’s decision
substitutes that word with “warnings.” That is simply
incorrect, as a matter of text, history, and precedent.
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 § 1983 action. See Dalessio v. City of
Bristol, 763 F. App’x 126, 127 (2d Cir. 2019) (unpublished)
(“Dalessio cannot state a Fifth Amendment claim because
‘the failure to give Miranda warnings does not create
liability under § 1983.’” (quoting Neighbour v. Covert,
68 F.3d 1508, 1510 (2d Cir. 1995)) (per curiam)); Foster v.
Carroll County, 502 F. App’x 356, 358 (5th Cir. 2012)
(unpublished) (“Violations of the prophylactic Miranda
procedures do not amount to violations of the Constitution
(2010) (“In [Miranda], the Court adopted a set of prophylactic measures
to protect a suspect’s Fifth Amendment right from the ‘inherently
compelling pressures’ of custodial interrogation.” (citation omitted));
Florida v. Powell, 559 U.S. 50, 59 (2010) (describing Miranda warnings
as “procedural safeguards” (simplified)); J.D.B. v. North Carolina,
564 U.S. 261, 269 (2011) (describing Miranda warnings as “a set of
prophylactic measures designed to safeguard the constitutional
guarantee against self-incrimination”); Howes v. Fields, 565 U.S. 499,
507 (2012) (“Miranda adopted a set of prophylactic measures designed
to ward off the inherently compelling pressures of custodial interrogation
. . . .” (simplified)).
TEKOH V. COUNTY OF LOS ANGELES 25
itself and, as such, fail to raise a cause of action under
§ 1983.”); McKinley v. City of Mansfield, 404 F.3d 418, 432
n.13 (6th Cir. 2005) (“McKinley also argues that Fortney’s
failure to read him the Miranda warnings at the outset of the
second interview is actionable under § 1983. On the
contrary, a § 1983 action on that basis is squarely foreclosed
by the Supreme Court’s decision two terms ago in Chavez.”);
Hannon v. Sanner, 441 F.3d 635, 637 (8th Cir. 2006)
(affirming that “Miranda procedural safeguards are not
themselves rights protected by the Constitution,” even after
Dickerson (simplified)); Marshall v. Columbia Lea Reg’l
Hosp., 345 F.3d 1157, 1165 n.6 (10th Cir. 2003) (explaining
that “violations of Miranda rights do not subject police
officers to liability under § 1983” (citing Bennett v. Passic,
545 F.2d 1260, 1263 (10th Cir. 1976))); Lloyd v. Marshall,
525 F. App’x 889, 892 (11th Cir. 2013) (unpublished)
(“[F]ailing to follow Miranda procedures . . . does not
violate any substantive Fifth Amendment right such that a
cause of action for money damages under § 1983 is created.”
(quoting Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir.
1999))). Even post-Dickerson, these cases remain the law.
As a result, our court’s expansive reading of that case is
wrong.
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 § 1983 claim based on the use of un-
Mirandized statements in probable cause and bail hearings.
Id. at 1027. Even though the court found the police
interrogation coercive, it also seemed to allow a stand-alone
§ 1983 claim for the absence of Miranda warnings. Id.
26 TEKOH V. COUNTY OF LOS ANGELES
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.