Daniel Chavez v. David Robinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MIKE CHAVEZ, No. 18-36083
Plaintiff-Appellant,
D.C. No.
v. 1:11-cv-03025-AA
DAVID R. ROBINSON; LISA
MOORE, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted May 22, 2020
San Francisco, California
Filed September 8, 2021
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Berzon
*
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 CHAVEZ V. ROBINSON
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of a
complaint brought pursuant to 42 U.S.C. § 1983 by Daniel
Chavez alleging that his constitutional rights were violated
when, as a condition of his supervised release and while his
appeal of his conviction was pending, he was required to
complete a sex offender treatment program, and then was
discharged from the program and given a limited jail sanction
for refusing to admit to the conduct underlying his conviction,
a required part of his treatment.
Chavez brought suit for damages against his probation
officer and the director of the therapy program alleging
defendants violated his rights under the Fifth Amendment and
Fourteenth Amendment by requiring him to admit to the
conduct underlying his conviction; violated his Sixth
Amendment right to counsel; and violated his First
Amendment right to free speech by dismissing him from
treatment after he filed the pending lawsuit.
Addressing Chavez’s claim that defendants violated his
Fifth Amendment right against self-incrimination, the panel
stated that the claim required consideration of the distinction
between the core constitutional right protected by the Self-
Incrimination Clause and the prophylactic rules designed to
safeguard that right. The panel held that it was bound by the
rule adopted by six justices in Chavez v. Martinez, 538 U.S.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHAVEZ V. ROBINSON 3
760, 770 (2003) (plurality opinion), as enunciated in this
court’s precedent, and consistent with the rule adopted by
sister circuits—that the Fifth Amendment is not violated
unless and until allegedly coerced statements are used against
a suspect in a criminal case. Because Chavez did not make
a statement that was used in a criminal proceeding, he could
not bring a civil action against the government under § 1983
for a violation of his Fifth Amendment right against self-
incrimination. Thus, the panel held that Chavez’s claim was
based on a violation of the judge-made protection from being
forced to give incriminating testimony. Because this
privilege is a prophylactic rule designed to safeguard the core
constitutional right protected by the Self-Incrimination
Clause rather than the core constitutional right itself, Chavez
could use the privilege only defensively as a shield and could
not wield it as a sword in an action for damages.
Addressing defendants’ contention that they were entitled
to qualified immunity as to the Fifth Amendment claim, the
panel stated that the analysis raised some close questions.
The panel noted that under United States v. Antelope, 395
F.3d 1128, 1139 (9th Cir. 2005), state officials may not
impose sanctions on a sex offender for failure to make
incriminating statements as part of a treatment program,
where the officials expressly decline to offer immunity and
insist that a sex offender’s statements can be used in
subsequent criminal proceedings. In Antelope, the court
reversed the revocation of a sex offender’s supervised release.
Rather than decide whether Antelope clearly established a
rule that applied to defendants in this somewhat different
context, the panel deemed it prudent to rely on its holding that
Chavez’s Fifth Amendment claim could not proceed in the
absence of the use of a coerced statement in a criminal
4 CHAVEZ V. ROBINSON
proceeding, and so the panel did not reach the second prong
of the qualified immunity analysis.
The panel next rejected Chavez’s claim that defendants
violated his Sixth Amendment rights by denying him counsel
at a critical stage. Chavez argued that defendants’ refusal to
allow him to consult his attorney before making admissions
was in effect a complete deprivation of counsel at the critical
stage of determining whether to appeal or withdraw an
appeal. The panel held that even assuming that a decision to
withdraw an appeal is a critical stage, Chavez was not denied
access to counsel for that purpose. Nor did any precedent
support Chavez’s argument that his meeting with defendant
Robinson for sex therapy treatment was a critical stage of his
appeal. Moreover, the panel stated that this court’s precedent
made clear that the Sixth Amendment has no application to
supervised release proceedings. Because no existing
precedent established that a prisoner who is prevented from
contacting counsel during sex offender treatment has been
denied counsel on appeal, defendants were also entitled to
qualified immunity on this claim under the second prong of
the qualified immunity analysis. Finally, the panel held that
Chavez had not identified any case holding that a convicted
sex offender participating in a treatment program as a
condition of probation or supervised release is entitled to
counsel before complying with the requirement (typical of
such programs) to admit the conduct underlying the
conviction, even if such admission has the potential to
prejudice a potential retrial after a successful appeal.
Accordingly, defendants were entitled to qualified immunity
on the Sixth Amendment right to counsel claim.
Addressing Chavez’s claim that defendants violated his
First Amendment right by terminating him from the sex
CHAVEZ V. ROBINSON 5
offender treatment program and revoking his supervision in
retaliation for his lawsuit, the panel held that defendants were
entitled to qualified immunity. Chavez cited no case holding
that a person providing rehabilitation therapy for a supervised
releasee may not discharge the releasee from the program in
response to a lawsuit.
Concurring in part in the judgment and dissenting in part,
Judge Berzon stated that Chavez was compelled in a criminal
case to be a witness against himself and imprisoned because
he would not be, violating his Fifth Amendment rights and
giving rise to a cause of action under § 1983. On the record
viewed most favorably to Chavez, defendants violated a well-
established prohibition on incarcerating a parolee for failing
to incriminate himself, recognized in Antelope, 395 F.3d at
1139; Chavez could sue for damages under § 1983 for that
violation; and Chavez’s Fifth and Fourteenth Amendment
claim was not barred by qualified immunity. Judge Berzon
therefore dissented from the majority’s Fifth Amendment
§ 1983 holding.
Judge Berzon also wrote separately to address the
majority’s reasoning on Chavez’s Sixth Amendment claim.
To the extent the majority reached the merits (which was not
clear), she disagreed with the majority’s assertion that
Chavez’s Sixth Amendment claim failed because he had
access to counsel at other stages of his appeal and because the
Sixth Amendment did not apply to supervised release
proceedings. These arguments mischaracterized Chavez’s
claim: that he had a right to consult with counsel about
waiving his Fifth Amendment privilege while his appeal was
still pending. Judge Berzon agreed, however, that there was
no clearly established law on whether Chavez had a right to
consult with counsel under the circumstances, and so
6 CHAVEZ V. ROBINSON
concurred in holding that Chavez’s Sixth Amendment claim
was barred by qualified immunity.
COUNSEL
Gus Tupper (argued), Kara Gordon, and Eleanor Walker,
Certified Law Students; Charles D. Weisselberg (argued) and
William H.D. Fernholz, Supervising Attorneys; University of
California School of Law, Berkeley, California; for Plaintiff-
Appellant.
Beth A. Jones (argued), Certified Law Student; Gerald L.
Warren (argued), Supervising Attorney; Law Office of
Gerald L. Warren and Associates, Salem, Oregon; for
Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
As a condition of his supervised release, Daniel Chavez
was required to participate in a sex offender treatment
program. When he refused to admit to the conduct
underlying his conviction, a required part of his treatment,
Chavez was discharged from the program and given a limited
jail sanction, as permitted under regulations applicable to
supervised releasees. Chavez brought a civil action under
42 U.S.C. § 1983 seeking damages for violations of his
constitutional rights due to this sequence of events, but the
district court dismissed his complaint.
CHAVEZ V. ROBINSON 7
We conclude that because Chavez did not make a
statement that was used in a criminal proceeding, see Chavez
v. Martinez, 538 U.S. 760, 770 (2003) (plurality opinion), he
may not bring a civil action against the government under
§ 1983 for a violation of his Fifth Amendment right against
self-incrimination, and we affirm the district court’s dismissal
of this claim. We also affirm the dismissal of Chavez’s
claims that the government officials involved in this incident
violated Chavez’s Sixth Amendment right to counsel and his
First Amendment right to bring a civil lawsuit against the
government.
I
In May 2008, Daniel Chavez was indicted by an Oregon
grand jury in connection with sexual misconduct involving
minors under 14 years of age.1 Chavez claimed he was
innocent of the charged offenses, and went to trial. In March
2009, the jury convicted Chavez of two counts of felony
attempted sexual abuse in the first degree and two counts of
misdemeanor private indecency. The court sentenced him to
18 months incarceration on one of the attempted sexual abuse
counts, followed by 60 months post-prison supervision.2 As
a condition of his supervised release, Chavez was required,
1
On this appeal of a grant of a motion to dismiss, we rely on the facts
set forth in the Second Amended Complaint (SAC), as well as attachments
or documents incorporated by reference, see Koala v. Khosla, 931 F.3d
887, 894 (9th Cir. 2019), and matters subject to judicial notice, see United
States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).
2
Chavez was also sentenced to 60 months probation on the other
attempt count, and two 30-day jail sentences to be served concurrently
with the 18-month sentence for the misdemeanor counts. The court
required him to register as a sex offender as a condition of probation.
8 CHAVEZ V. ROBINSON
among other things, to complete a sex offender treatment
program.3
Chavez appealed his conviction. On appeal, he was
represented by a lawyer from the state office of public
defense services. Chavez argued that the trial court erred by
admitting a physician’s medical diagnosis that a child had
been sexually abused, where that diagnosis was not based on
physical evidence of abuse, because such evidence was more
prejudicial than probative. See Or. Evid. Code, Rule 403;
State v. Southard, 218 P.3d 104, 133 (Or. 2009). Chavez also
filed a supplemental brief pro se.
While his appeal was pending, Chavez finished his prison
term and returned to Klamath County. Chavez’s probation
officer, Lisa Moore, was responsible for monitoring Chavez’s
compliance with probation and post-prison supervision. She
directed Chavez to enroll in a sex offender treatment program
provided by David Robinson and his company, Correctional
Evaluation and Treatment, Inc. (CET).
Chavez appeared for the treatment program in June 2010.
At the initial meeting, Robinson told him that as a condition
of the program, Chavez had to admit to the conduct
underlying each count of his conviction. Robinson also
required Chavez to sign a form authorizing Robinson to
disclose anything discussed in the program to Chavez’s
3
If a defendant is on post-prison supervision following conviction of
a sex crime, Oregon law requires the following special condition of the
person’s post-prison supervision: “Entry into and completion of or
successful discharge from a sex offender treatment program approved by
the board, supervisory authority or supervising officer. The program may
include polygraph and plethysmograph testing. The person is responsible
for paying for the treatment program.” Or. Rev. Stat. § 144.102(4)(b)(F).
CHAVEZ V. ROBINSON 9
probation officer. Chavez asked for an opportunity to speak
to an attorney about how the admissions might affect his
pending appeal. Robinson told him that if he failed to admit
to the criminal conduct underlying his conviction, he would
go to jail.4
When Chavez refused to admit to the conduct underlying
his counts of conviction, Robinson dismissed him from the
sex offender treatment program and notified Moore. Moore
initiated post-prison supervision sanction proceedings against
Chavez for failing to comply with the conditions of his
supervised release. At the proceedings, Chavez was found to
be in violation of the sex offender treatment requirement of
his post-prison supervision, and was given a jail sanction.
The record is unclear regarding the length of the jail sanction.
Chavez did not appeal the revocation of supervised release.
In August 2010, a similar sequence of events unfolded.
Pursuant to Chavez’s court-ordered sentence, Moore directed
Chavez to enroll in Robinson’s sex offender treatment
program. Chavez again refused to admit to the conduct
underlying his conviction, and Robinson again dismissed
4
Under Oregon law, the Department of Corrections (or another
supervisory authority) may sanction a defendant who violates post-prison
supervision conditions by imposing “a continuum of administrative
sanctions.” Or. Rev. Stat. § 144.106(1). If the available administrative
sanctions are inadequate, the supervisory authority may request the State
Board of Parole and Post-Prison Supervision to impose a sanction of
incarceration. Or. Admin. R. 213-011-0004(2). Based on such a request,
“the Board shall hold a hearing to determine whether incarceration in jail
is appropriate and may impose an appropriate term of incarceration up to
ninety (90) days for a technical violation and up to one hundred and eighty
(180) days for conduct constituting a crime.” Or. Admin. R.
213-011-0004(3).
10 CHAVEZ V. ROBINSON
Chavez from the program and notified Moore. Moore then
initiated a second round of post-prison supervision sanction
proceedings against Chavez. At the proceedings, Chavez was
found to be in violation of the sex offender treatment
condition of his post-prison supervision and a second jail
sanction was imposed against him. Again, the record is
unclear as to the length of the jail sanction imposed. And
again, Chavez did not appeal this revocation.
Following the imposition of the second sanction,
Chavez’s appellate counsel moved the state trial court to stay
the post-prison supervision condition that Chavez enroll in a
sex offender treatment program. The counsel argued that the
state could not implement the treatment provision unless it
gave Chavez complete immunity for any statements he made
during his treatment. The counsel acknowledged that the
Oregon deputy district attorney had previously represented
that Chavez would be given such immunity, but there was
nothing in the record that “b[ound] the district attorney’s
office to that pledge.” Therefore, counsel argued, the court
should require the state to make that commitment on the
record in open court.
A few weeks later, the court denied the motion to stay
treatment, but issued an order granting Chavez immunity
from any statements or admission made about his conduct in
the course of sex offender treatment, as well as any evidence
gained as a result of such statements or admission, except in
any proceedings related to homicide. In March 2011, Chavez
filed a pro se civil rights complaint in federal court under
42 U.S.C. § 1983, alleging that Moore and Robinson violated
his constitutional right not to incriminate himself. Robinson
subsequently dismissed Chavez from the sex offender
treatment program. Based on this dismissal, Moore revoked
CHAVEZ V. ROBINSON 11
Chavez’s supervised release and imposed a third jail sanction
on Chavez for refusing to participate in or comply with the
treatment program. Chavez did not appeal this revocation.
In February 2012, the Oregon Court of Appeals reversed
Chavez’s conviction and remanded for a new trial. State v.
Chavez, 272 P.3d 167, 167 (Or. 2012). The state conceded
that the trial court made an evidentiary error in admitting a
physician’s diagnosis that Chavez had sexually abused the
alleged victims, and the court agreed. Id. On remand,
Chavez and the state entered into a plea agreement pursuant
to which Chavez pleaded “no contest” to one count of felony
attempted sexual abuse, and the state dismissed the other
counts and recommended a sentence of time served with a
requirement that Chavez register as a sex offender. The court
accepted the plea in February 2014 and imposed the sex
offender registration requirement.
In 2013, the district court issued an order to show cause
why Chavez’s civil rights complaint should not be dismissed
for failure to prosecute. Chavez filed a document titled “Tort
Claim with Damages” that named Robinson and the Oregon
Board of Parole as defendants. The district court construed
this document as an amended complaint and sua sponte
dismissed the complaint with prejudice on the ground that the
defendants were immune from damages. See 28 U.S.C.
§ 1915(e)(2)(B)(iii). It held that members of the Oregon
Board of Parole were entitled to absolute immunity under the
Eleventh Amendment. It also held that Robinson was entitled
to qualified immunity because “[a] reasonable therapist in
Robinson’s place would not believe he was violating a
convicted sex offender’s civil rights by evaluating the
offender in accordance with the legally mandated conditions
12 CHAVEZ V. ROBINSON
of probation,” and, to the extent Moore was still a defendant
in the case, she was also entitled to qualified immunity.
Chavez appealed, and we reversed, holding that the
district court erred in dismissing the complaint on qualified-
immunity grounds given the procedural posture of the case at
that time. Chavez v. Robinson, 817 F.3d 1162, 1165 (9th Cir.
2016). On remand, Chavez (now represented by pro bono
counsel) filed a first amended complaint, alleging that Moore
and Robinson violated his rights under the Fifth Amendment
and the Fourteenth Amendment Due Process Clause. Both
defendants moved to dismiss the claims against them. Moore
contended, among other things, that she was entitled to
absolute immunity as a parole officer, and Robinson argued
he was not acting under color of state law, or, alternatively,
that he was entitled to qualified immunity. The district court
granted the motions to dismiss but allowed leave to amend.
Chavez filed a second amended complaint (the operative
pleading here) in May 2018 (the SAC). The SAC alleged
three different claims under § 1983: (1) a violation of
Chavez’s Fifth and Fourteenth Amendment rights by
requiring him to admit to the conduct underlying his
convictions, (2) a violation of his Sixth Amendment right to
counsel by retaliating against him for asserting his right to
speak with a lawyer, and (3) a violation of his First
Amendment right to free speech by dismissing him from
treatment after he filed the pending lawsuit. The court again
dismissed the complaint, this time with prejudice. After
assuming without deciding that Robinson was a state actor,
the court held that Chavez failed to state a claim with respect
to all three claims, and that, in any event, the defendants were
entitled to qualified immunity on all three claims. This
appeal followed.
CHAVEZ V. ROBINSON 13
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo a district court’s dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Curtis v.
Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). “To
survive a motion to dismiss, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We accept as
true “well-pleaded factual allegations,” but not “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Id.II
We first address Chavez’s claim that Robinson and Moore
violated his Fifth Amendment right against self-
incrimination. Chavez’s claim requires us to consider the
distinction between the “core constitutional right protected by
the Self-Incrimination Clause” and the “prophylactic rules
designed to safeguard” that right. Chavez, 538 U.S. at 770.
A
1
The Fifth Amendment states that “[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. “The privilege against
self-incrimination guaranteed by the Fifth Amendment is a
fundamental trial right of criminal defendants.” United States
v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). It “permits
a person to refuse to testify against himself at a criminal trial
in which he is a defendant.” Minnesota v. Murphy, 465 U.S.
420, 426 (1984). “Although conduct by law enforcement
14 CHAVEZ V. ROBINSON
officials prior to trial may ultimately impair that right, a
constitutional violation occurs only at trial.” Verdugo-
Urquidez, 494 U.S. at 264.
While the text of the Self-Incrimination Clause
establishes a trial right, see id., the Supreme Court has
interpreted the clause as barring the government from
engaging in certain pretrial conduct, such as compelling a
person to make incriminating statements (absent a grant of
immunity) or punishing a person who refuses to make such
statements, see Lefkowitz v. Cunningham, 431 U.S. 801, 806
(1977) (“[The] government cannot penalize assertion of the
constitutional privilege against compelled self-incrimination
by imposing sanctions to compel testimony which has not
been immunized.”). A person subjected to questioning by the
government may “refuse to answer unless and until he is
protected at least against the use of his compelled answers
and evidence derived therefrom in any subsequent criminal
case in which he is a defendant.” Lefkowitz v. Turley,
414 U.S. 70, 78 (1973). This rule “applies alike to civil and
criminal proceedings, wherever the answer might tend to
subject to criminal responsibility him who gives it” in future
criminal proceedings. Id. at 77 (quoting McCarthy v.
Arndstein, 266 U.S. 34, 40 (1924)). The Court has applied
this rule to protect police officers from the choice “between
self-incrimination or job forfeiture,” Garrity v. New Jersey,
385 U.S. 493, 496 (1967), to protect public employees from
similar sanctions, see Uniformed Sanitation Men Ass’n v.
Comm’r of Sanitation of City of N.Y., 392 U.S. 280, 283–84
(1968), and to protect independent contractors from losing
their opportunity to secure public contracts, Turley, 414 U.S.
at 82. In the probation context, the Court has held that the
government cannot “constitutionally carry out a threat to
revoke probation for the legitimate exercise of the Fifth
CHAVEZ V. ROBINSON 15
Amendment privilege,” as when a probationer refuses “to
answer questions calling for information that would
incriminate in separate criminal proceedings.” Murphy,
465 U.S. at 438.5
The Court has taken different approaches to shield
individuals from such government compulsion. Where
witnesses refused to testify despite the government’s threat
that sanctions would be imposed, “the Court ruled that the
state could not constitutionally make good on its prior threat.”
Id. at 434. Where “an individual succumbed to the pressure
placed upon him, failed to assert the privilege, and disclosed
incriminating information which the state later sought to use
against him in a criminal prosecution,” id., the Court held the
privilege was not waived, id., and such testimony was subject
to an exclusionary rule which “prohibits use in subsequent
criminal proceedings of statements obtained” under a
compulsion, Garrity, 385 U.S. at 500; see also Turley,
414 U.S. at 78 (holding that if a witness is compelled to
answer incriminating questions without immunity, “his
5
The dissent relies heavily on these Supreme Court decisions holding
that the government may not punish a person who refuses to make non-
immunized incriminating statements. Dissent at 50–53 (citing Murphy,
465 U.S. at 434; Malloy v. Hogan, 378 U.S. 1, 8 (1964); Cunningham,
431 U.S. at 806; Uniformed Sanitation Men, 392 U.S. at 283; Turley,
414 U.S. at 82). But the scope of the shield provided by the Self-
Incrimination Clause is neither in doubt nor at issue in this case, because
the Supreme Court subsequently made clear that a person cannot use this
shield as a sword to claim damages for a violation of this prophylactic
rule. See Section II.A.2, infra.
16 CHAVEZ V. ROBINSON
answers are inadmissible against him in a later criminal
prosecution”).6
The shield provided by this judicial doctrine has
limitations. First, the Court has made clear that it is not
implicated if statements are made voluntarily, as when a
person “is anxious to make a clean breast of the whole affair,”
see Garrity, 385 U.S. at 499. Nor does it apply when a
person does not invoke the privilege against self-
incrimination and any pressure to make incriminating
statements does not rise to the level of compulsion, see
Murphy, 465 U.S. at 427 (holding that a probationer’s
“general obligation to appear and answer [the probation
officer’s] questions truthfully did not in itself convert [the
probationer’s] otherwise voluntary statements into compelled
ones”). Second, the shield of the judge-made rule is not
applicable if the statements do not pose a reasonable risk of
being incriminating. Id. Nor is the shield applicable if the
state has provided an appropriate scope of immunity to the
6
The Court has treated the bar against compelling a person to sign a
document waiving immunity as distinct from the bar against compelling
testimony because “[o]nce an immunity waiver is signed, the signatory is
unable to assert a Fifth Amendment objection to the subsequent use of his
statements in a criminal case, even if his statements were in fact
compelled.” Chavez, 538 U.S. at 768 n.2. Thus when employees have
been discharged “not for failure to answer relevant questions about [their]
official duties, but for refusal to waive a constitutional right” by signing
a waiver document, Gardner v. Broderick, 392 U.S. 273, 279 (1968), the
Court has held that “the State may not insist that appellees waive their
Fifth Amendment privilege against self-incrimination and consent to the
use of the fruits of the interrogation in any later proceedings brought
against them,” Turley, 414 U.S. at 84–85; see also Gardner, 392 U.S.
at 279 (invalidating the discharge of a police officer for “refusal to execute
a document purporting to waive his constitutional rights and to permit
prosecution of himself on the basis of his compelled testimony”).
CHAVEZ V. ROBINSON 17
witness. Kastigar v. United States, 406 U.S. 441, 453 (1972).
Rather, if a person’s testimony is immunized “from use and
derivative use” in a future criminal proceeding, such
immunity “is sufficient to compel testimony over a claim of
the privilege.” Id. A state may constitutionally punish
individuals who refuse to provide testimony once immunized.
See Turley, 414 U.S. at 84 (holding that “if immunity is
supplied and testimony is still refused,” the courts may
compel testimony “by use of civil contempt and coerced
imprisonment,” and the government may deprive them of
employment or impose other punishments).
The limitations on the protection provided by the Self-
Incrimination Clause with respect to the government’s pre-
trial conduct are equally applicable to the protections
provided by the clause at trial. To invoke the Fifth
Amendment’s trial right, a person must be “compelled in any
criminal case to be a witness against himself.” U.S. Const.
amend. V. If there is no compulsion, because the statement
is voluntary, or because the incriminating testimony cannot
be used against the witness due to the grant of immunity, then
the Self-Incrimination Clause is not implicated.
2
In Chavez v. Martinez, the Supreme Court considered the
distinction between the trial right set forth in the text of the
Fifth Amendment, and the broader judge-made rule shielding
individuals from government compulsion to make
incriminating statements. 538 U.S. at 770. Chavez involved
a plaintiff engaged in a shootout with the police, which
resulted in his suffering severe injuries that ultimately left
him “permanently blinded and paralyzed from the waist
down.” Id. at 764. The police accompanied plaintiff to the
18 CHAVEZ V. ROBINSON
hospital, where they questioned him while he was receiving
medical treatment. Id. According to the district court, the
plaintiff “had been shot in the face, both eyes were injured; he
was screaming in pain, and coming in and out of
consciousness while being repeatedly questioned about
details of the encounter with the police.” Id. at 798(Kennedy, J., concurring in part). The plaintiff was not given
Miranda warnings or otherwise told that his cooperation
should be voluntary. Id. While undergoing this questioning,
the plaintiff made damaging admissions. Id. at 764 (plurality
opinion). In the end, the government did not charge plaintiff
with a crime or use the plaintiff’s answers against him in any
criminal prosecution. Id. Nevertheless, the plaintiff brought
a § 1983 action against the police officer on the ground that
the coercive questioning itself violated his Fifth Amendment
rights, “as well as his Fourteenth Amendment substantive due
process right to be free from coercive questioning.” Id. at
765. A Ninth Circuit panel agreed that the plaintiff had stated
a claim that the coercive questioning violated both his Fifth
and Fourteenth Amendment rights. Id. at 765–66.
A majority of the Supreme Court reversed. Id. at 776.
The case generated six separate opinions. Two opinions
reversed our ruling on the Fifth Amendment claim: an
opinion authored by Justice Thomas and joined by Chief
Justice Rehnquist, Justice O’Connor, and Justice Scalia as to
the Fifth Amendment analysis, id. at 763–76, and an opinion
authored by Justice Souter and joined by Justice Breyer, id.
at 779 (Souter, J., concurring).7
7
A different majority held that the plaintiff might be able to establish
the elements of a substantive due process claim for outrageous
government conduct, and remanded this claim for further consideration.
CHAVEZ V. ROBINSON 19
Justice Thomas’s plurality opinion concluded that the
officer’s alleged conduct did not violate the plaintiff’s core
constitutional Fifth Amendment rights, and therefore the
officer was entitled to qualified immunity. Id. at 766
(plurality opinion). According to the plurality, based on the
text of the Fifth Amendment, a person’s rights under the Self-
Incrimination Clause are not violated unless that person is
prosecuted for a crime and actually compelled to be a witness
against himself in a criminal case. Id. at 766–67. “The text
of the Self-Incrimination Clause simply cannot support the
Ninth Circuit’s view that the mere use of compulsive
questioning, without more, violates the Constitution.” Id.
at 767. The plurality recognized that the Court had also
created “prophylactic rules designed to safeguard the core
constitutional right protected by the Self-Incrimination
Clause.” Id. at 770. Such procedural safeguards are “not
themselves rights protected by the Constitution but . . .
measures to insure that the right against compulsory
self-incrimination was protected.” Id. (quoting Michigan v.
Tucker, 417 U.S. 433, 444 (1974)). Therefore, a person
cannot seek damages under § 1983 for a violation of the
“evidentiary privilege that protects witnesses from being
forced to give incriminating testimony.” Id. at 770–71.
Justice Thomas, joined by Chief Justice Rehnquist and Justice
Scalia, also concluded that the questioning did not violate the
plaintiff’s due process rights. Id. at 776.
Justice Souter, in an opinion joined by Justice Breyer,
agreed that the plaintiff’s claims should be rejected. Souter
recognized that the rule the plaintiff sought, “asking this
Court to hold that the questioning alone was a completed
violation of the Fifth and Fourteenth Amendments subject to
redress by an action for damages under § 1983,” was “well
outside the core of Fifth Amendment protection,” because the
20 CHAVEZ V. ROBINSON
Self-Incrimination Clause “focuses on courtroom use of a
criminal defendant’s compelled, self-incriminating testimony,
and the core of the guarantee against compelled self-
incrimination is the exclusion of any such evidence.” Id.
at 777 (Souter, J., concurring). But, according to Justice
Souter, “that alone [was] not a sufficient reason to reject” the
plaintiff’s § 1983 claim. Id. Justice Souter relied on an
additional reason: the plaintiff could not “make the powerful
showing, subject to a realistic assessment of costs and risks,
necessary to expand protection of the privilege against
compelled self-incrimination to the point of the civil
liability,” which the plaintiff asked the Court to recognize.
Id. at 778 (cleaned up). Justice Souter worried that if the
evidentiary privilege could be used as a sword, damages
would be available “in every instance of interrogation
producing a statement inadmissible under Fifth and
Fourteenth Amendment principles, or violating one of the
complementary rules [the Court has] accepted in aid of the
privilege against evidentiary use.” Id. Broadly expanding the
availability of damage actions in this manner was not
“necessary in aid of the basic guarantee,” and instead a
plaintiff could raise a substantive due process claim for
outrageous government conduct. Id. at 779. Therefore,
Justice Souter rejected the Fifth Amendment claim.
Nevertheless, he disagreed with Justice Thomas on the
substantive due process claim, and would remand that claim
to the district court. Id. at 779–80. Four other justices agreed
that the substantive due process claim for outrageous
government conduct should be remanded, making the
subsection of Justice Souter’s opinion discussing this issue
the opinion of the Court. See id. at 777 n.*; see also id.
at 799 (Kennedy, J., concurring in part).
CHAVEZ V. ROBINSON 21
Although none of the six separate opinions in Chavez
“provides a binding rationale” in itself, Tekoh v. County of
Los Angeles, 985 F.3d 713, 722 (9th Cir. 2021), based on the
opinions of the five justices who rejected the plaintiff’s Fifth
Amendment claim, we have concluded that Chavez stands for
the proposition that “mere coercion does not violate the text
of the Self-Incrimination Clause absent use of the compelled
statements in a criminal case against the witness,” Aguilera
v. Baca, 510 F.3d 1161, 1173 (9th Cir. 2007) (quoting
Chavez, 538 U.S. at 769). Rather, “[o]nly after a compelled
incriminating statement is used in a criminal proceeding has
an accused suffered the requisite constitutional injury for
purposes of a § 1983 action.” Id.; see also Stoot v. City of
Everett, 582 F.3d 910, 923 (9th Cir. 2009) (holding that in
Chavez “the Court held that coercive police questioning does
not violate the Fifth Amendment, absent use of the statements
in a criminal case” and that “the Fifth Amendment was not
violated unless and until allegedly coerced statements were
used against the suspect in a criminal case”). In short, “the
Fifth Amendment provides a right against compelled
self-incrimination, but that right only applies when a
compelled statement is used against a defendant in a ‘criminal
case.’” United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir.
2018) (quoting Chavez, 538 U.S. at 766–67).
Accordingly, we have recognized the distinction between
the core Fifth Amendment trial right, which a plaintiff can
use as a sword against a government official in a § 1983
action, and the judicially created prophylactic rule, which
shields a person from coercive government questioning, but
does not provide the basis for a § 1983 action. See, e.g., id.
at 1020; Stoot, 582 F.3d at 923; Aguilera, 510 F.3d at1173–74. We first recognized this distinction in United
States v. Antelope, where a convicted sex offender on
22 CHAVEZ V. ROBINSON
supervised release was required to disclose his “full sexual
history” (including past criminal offenses other than those for
which he was convicted) on pain of revocation of probation
and supervised release. 395 F.3d 1128, 1131 (9th Cir. 2005).
The district court revoked the sex offender’s probation for
failing to comply with this requirement, id., and then denied
the sex offender’s request for immunity, even though his
incriminating statements could be used for prosecutorial
purposes, id. at 1139. We held that “[b]ecause the
government and district court have consistently refused to
recognize that the required answers may not be used in a
criminal proceeding” against the sex offender, “the revocation
of his probation and supervised release violated his Fifth
Amendment right against self-incrimination.” Id. (cleaned
up) (quoting Murphy, 465 U.S. at 435 n.7). Therefore, we
reversed the revocation of the sex offender’s supervised
release. Id. at 1142. In doing so, we rejected the
government’s characterization of Chavez as holding that the
defendant could not “assert the Fifth Amendment right until
the moment a compelled statement is used in a criminal
proceeding against him.” Id. at 1140. We explained that
“[c]ritical to the reasoning of all six justices [in Chavez] was
the simple principle that the scope of the Fifth Amendment’s
efficacy is narrower when used as a sword in a civil suit than
when used as a shield against criminal prosecution.” Id.
at 1141. Therefore, a defendant can successfully invoke
prophylactic rules that safeguard the Fifth Amendment right
against self-incrimination, even though the defendant could
not “turn the tables” and impose civil liability under § 1983
for a violation of those rules. Id.
Subsequently, we directly addressed the circumstances
under which a plaintiff could bring a civil action for violation
of his rights under the Self-Incrimination Clause. See
CHAVEZ V. ROBINSON 23
Aguilera, 510 F.3d at 1173–74. Aguilera dismissed a § 1983
action alleging a Fifth Amendment violation brought by
deputies subjected to questioning during an internal
investigation because “the deputies were never charged with
a crime, and no incriminating use of their statements has ever
been made.” Id. at 1173. Noting that six justices in Chavez
agreed with the proposition that use of a compelled statement
in a criminal proceeding is a prerequisite to a § 1983 action
based on the Self-Incrimination Clause, we held, “[p]lainly,
Chavez applies in situations where a party actually makes an
incriminating statement and the government then decides to
use it in a criminal proceeding. If it does so, the Fifth
Amendment is violated. Otherwise, it is not.” Id. at 1174
n.9. If an incriminating statement is not used in a criminal
proceeding, “there is no cognizable Fifth Amendment claim.”
Id.
Cases after Aguilera clarified what constitutes use of a
compelled statement in a criminal proceeding, but reaffirmed
that a plaintiff cannot bring a § 1983 claim absent such use.
Stoot, 582 F.3d at 923 (characterizing the plurality and
concurring opinions in Chavez as agreeing that use of a
compelled statement in a criminal case is required to bring a
§ 1983 claim based on the Fifth Amendment); Crowe v.
County of San Diego, 608 F.3d 406, 427 (9th Cir. 2010)
(noting that “[i]n Chavez, the Supreme Court held that mere
coercion does not create a cause of action under § 1983 for a
violation of the Self-Incrimination Clause, absent use of the
compelled statement in a criminal case,” and holding that use
of a compelled statement in certain pre-trial proceedings
violated the Fifth Amendment); Hulen, 879 F.3d at 1018
(reiterating that an individual may bring a § 1983 claim based
on the Self-Incrimination Clause only “when a compelled
statement is used against a defendant in a ‘criminal case,’”
24 CHAVEZ V. ROBINSON
and holding that use of a compelled statement in a parole
revocation hearing did not qualify as “use[] in a criminal
case”); cf. Tekoh, 985 F.3d at 721 (“The specific holding in
Chavez does not govern Tekoh’s case because unlike the
plaintiff in Chavez, Tekoh’s un-Mirandized statements were
used against him in criminal proceedings.”); Tobias v.
Arteaga, 996 F.3d 571, 583 (9th Cir. 2021) (holding that a
plaintiff could bring a § 1983 action for a coercive
interrogation where the government had used the resulting
confession in a criminal case against the plaintiff).
Our sister circuits have likewise uniformly interpreted
Chavez as standing for the proposition that use of a compelled
statement in a criminal proceeding is a prerequisite to a
§ 1983 suit based on a violation of the Self-Incrimination
Clause. See, e.g., Koch v. City of Del City, 660 F.3d 1228,
1245 n.9 (10th Cir. 2011) (“Although Justices Souter and
Breyer did not join the plurality [in Chavez], they agreed that
the Fifth Amendment ‘focuses on courtroom use of a criminal
defendant’s compelled, self-incriminating testimony.’”);
Renda v. King, 347 F.3d 550, 558 (3d Cir. 2003) (“[S]ix
Justices [in Chavez] . . . agreed that mere custodial
interrogation absent Miranda warnings is not a basis for a
§ 1983 claim.”); Allison v. Snyder, 332 F.3d 1076, 1080 (7th
Cir. 2003) (“A majority of the Justices concluded in Chavez
. . . that courts may not award damages [where] . . .
incriminating information . . . is never used in a criminal
prosecution.”); see also United States v. Riley, 920 F.3d 200,
205 (4th Cir. 2019); United States v. Allen, 864 F.3d 63, 82
(2d Cir. 2017); Knight ex rel. Kerr v. Miami-Dade County,
856 F.3d 795, 823 (11th Cir. 2017); Winslow v. Smith,
696 F.3d 716, 731 n.4 (8th Cir. 2012); Murray v. Earle,
405 F.3d 278, 285 n.11 (5th Cir. 2005). This rule is
applicable whether the plaintiff refused to speak in the face of
CHAVEZ V. ROBINSON 25
coercive questioning or succumbed to the coercion and made
incriminating statements. See, e.g., Entzi v. Redmann,
485 F.3d 998, 1002 (8th Cir. 2007) (rejecting a § 1983 claim
based on the Self-Incrimination Clause where the plaintiff
had been sanctioned for declining to make any statement);
Koch, 660 F.3d at 1245 (same); Burrell v. Virginia, 395 F.3d
508, 513 (4th Cir. 2005) (same).
The dissent argues that because Tekoh held that none of
the six opinions in Chavez provided a binding rationale,
985 F.3d at 722, Chavez and our opinions interpreting Chavez
have no precedential effect beyond their facts and specific
result. Dissent at 58. This argument is meritless. In Chavez,
six justices agreed that there can be no § 1983 claim unless a
plaintiff’s incriminating statement is introduced in his
criminal proceeding. Given this shared conclusion, it makes
no difference that Justice Thomas reached this conclusion
relying on the text of the Self-Incrimination Clause itself,
Chavez, 538 U.S. at 767, while Justice Souter held merely
that there was not a sufficient basis “to expand protection of
the privilege against compelled self-incrimination to the point
of the civil liability” for violations of “one of the
complementary rules [the Court has] accepted in aid of the
privilege,” id. at 777–78 (Souter, J., concurring). We
confirmed the rule established by Chavez in subsequent
opinions holding that the Self-Incrimination Clause is not
violated until a statement is introduced in a criminal
proceeding. See, e.g., Antelope, 395 F.3d at 1141; see also
Aguilera, 510 F.3d at 1174 n.9. Tekoh does not purport to
overrule our binding precedent, and of course a three-judge
panel could not do so. See Gonzalez v. Arizona, 677 F.3d
383, 389 n.4 (9th Cir. 2012) (en banc) (“[A] published
decision of this court constitutes binding authority which
‘must be followed unless and until overruled by a body
26 CHAVEZ V. ROBINSON
competent to do so.’” (quoting Hart v. Massanari, 266 F.3d
1155, 1170 (9th Cir. 2001))), aff’d sub nom. Arizona v. Inter
Tribal Council of Ariz., Inc., 570 U.S. 1 (2013). Therefore,
we are bound by the rule adopted by six justices in Chavez, as
enunciated in our precedent, which is also consistent with the
rule adopted by our sister circuits.
B
We now turn to the question whether Chavez can assert
a § 1983 claim for a Fifth Amendment violation on the
ground that the defendants sanctioned him for asserting his
right to remain silent, without expressly granting him
immunity from use of his statement in a subsequent criminal
proceeding. In light of the principles discussed above,
Chavez may not do so. To bring a § 1983 action based on a
Fifth Amendment violation, the government must violate a
plaintiff’s “core constitutional right,” Antelope, 395 F.3d
at 1141, which is the “use of the compelled statements in a
criminal case against the witness,” Aguilera, 510 F.3d at 1173(quoting Chavez, 538 U.S. at 769). Here, Chavez did not
make an incriminating statement, nor was any such statement
used in a criminal proceeding. Rather, his claim is based on
a violation of the judge-made protection from being forced to
give incriminating testimony. Because this privilege is a
“prophylactic rule[] designed to safeguard the core
constitutional right protected by the Self-Incrimination
Clause” rather than the “core constitutional right” itself,
Chavez, 538 U.S. at 770, Chavez may use the privilege only
defensively as a shield, and may not wield it as a sword in an
action for damages, see Antelope, 395 F.3d at 1141; Aguilera,
510 F.3d at 1173. Thus, we affirm the dismissal of Chavez’s
Fifth Amendment claim.
CHAVEZ V. ROBINSON 27
Chavez urges us to rely on the Sixth Circuit’s conclusion
that “Chavez only applies where a party actually makes
self-incriminating statements,” and does not apply to a person
like himself, who refused to make self-incriminating
statements. Moody v. Mich. Gaming Control Bd., 790 F.3d
669, 675 (6th Cir. 2015) (quoting Aguilera, 510 F.3d at 1179(Kozinski, J., dissenting “for the most part”)). The dissent
likewise relies on this distinction, arguing that the Chavez
rule expressed in our precedent does not apply “where the
privilege is invoked, no statement is given, and the individual
suffers punishment as a consequence,” Dissent at 48, and
attempts to distinguish our precedent as not including all
three factual circumstances.
This argument fails because Chavez’s and the dissent’s
proposed rule is directly contrary to our precedent. Aguilera
explained that an accused suffers “the requisite constitutional
injury for purposes of a § 1983 action” only “after a
compelled incriminating statement is used in a criminal
proceeding.” 510 F.3d at 1173. Therefore, it makes no
difference if the government punished a person for refusing
to make incriminating statements, Cunningham, 431 U.S.
at 807, or if the government coerced incriminating statements
by threat of punishment, Garrity, 385 U.S. at 499–500.
Neither violation provides a basis for a § 1983 action. See
Section II.A.2, supra; cf. Tekoh, 985 F.3d at 721 (allowing a
plaintiff’s § 1983 claim to proceed when the statement was
used in his criminal case); Tobias, 996 F.3d at 583 (same).
Therefore, the dissent’s argument that a violation at trial is
not required when a person remains silent in the face of
coercive government questioning, Dissent at 48, is meritless.
Other circuits have agreed with our approach. See, e.g.,
Entzi, 485 F.3d at 1004 (rejecting a § 1983 claim based on the
Self-Incrimination Clause where the plaintiff had been
28 CHAVEZ V. ROBINSON
sanctioned for declining to make any statement); Koch,
660 F.3d at 1245 (same); Burrell, 395 F.3d at 513 (same).
Moody gives no support to Chavez because, as its reliance on
the dissent in Aguilera suggests, Moody is contrary to our
precedent.
Contrary to the dissent, Dissent at 48, there is no
exception to the Chavez rule when a plaintiff invokes the
privilege against self-incrimination, remains silent, and
suffers punishment. In Entzi, for instance, a prisoner refused
to undergo sex offender treatment that required him to admit
guilt to the offense of conviction. 485 F.3d at 1000. As a
result, the prisoner lost performance-based sentence-
reduction credits, which “extended his term of imprisonment
by more than a year.” Id. at 1003. The prisoner brought a
damages action under § 1983, on the ground that the loss of
credits punished his assertion of the privilege against self-
incrimination. Id. at 1003. The Eighth Circuit rejected this
claim, holding, among other things, that “even assuming the
denial of sentence-reduction credits were deemed to be
‘compulsion’ for purposes of the Fifth Amendment,” no
damages remedy under § 1983 was available, because “[n]o
statements compelled from [the prisoner] have been
introduced in evidence in a criminal case.” Id. at 1004.
Lacking any support in precedent for his proposed rule,
Chavez raises a policy argument. According to Chavez, if he
cannot bring a § 1983 action, he will be deprived of any
remedy for the jail sanction that the government wrongly
imposed upon him for refusing to make incriminating
statements. The dissent likewise argues that the shield
against the government’s efforts to compel admissions is
meaningless if the government cannot be held liable for a
violation under § 1983. See Dissent at 48. These arguments
CHAVEZ V. ROBINSON 29
miss the point of Chavez’s distinction between core
constitutional rights and prophylactic rules. Even if the
defendants erred in requiring Chavez to admit to the criminal
conduct underlying his convictions on pain of a jail sanction,
Chavez makes clear that such an error in implementing a
prophylactic rule does not violate Chavez’s constitutional
rights, and therefore does not give rise to a constitutional tort
under § 1983. The prophylactic rules are in place to
safeguard Chavez’s core constitutional right, which in this
case was not violated. See Chavez, 538 U.S. at 772.
Moreover, contrary to Chavez and the dissent, Chavez
could have sought protection from government sanctions in
other ways. First, Chavez could have demanded immunity
before making a statement in the sex offender therapy, see
Kastigar, 406 U.S. at 453, and in fact, Chavez obtained such
immunity after he raised the issue. Alternatively, like the
prisoner in Antelope, Chavez could have appealed the
revocation of supervised release and obtained a reversal of
the revocation and an order preventing the government from
compelling incriminating statements absent immunity. See
395 F.3d at 1141.8
8
The dissent argues that Chavez could not seek such relief because,
according to Chavez’s original pro se complaint, “[t]he moment he refused
to incriminate himself, he ‘was immediately apprehended, handcu61ffed
and taken to jail’ where ‘he was detained without bail.’” Dissent at 61 n.3.
Chavez chose not to make this dramatic assertion in his Second Amended
Complaint, which renders his original complaint “non-existent.” Ramirez
v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). The
amended complaint states only that Moore (not Robinson) revoked
Chavez’s supervised release, which ultimately led to the imposition of an
incarceration sanction. On appeal, Chavez asserts that “Defendants
[Robinson and Moore] immediately terminated him from the program and
jailed him,” but later explains that Robinson dismissed Chavez from the
program and notified Moore “who jailed Mr. Chavez for violating the
30 CHAVEZ V. ROBINSON
Finally, if Chavez had asserted his Fifth Amendment
rights and then made the admissions required by his sex
offender treatment program, the exclusionary rule would have
allowed Chavez to suppress the confession if a re-trial were
to occur. See Murphy v. Waterfront Comm’n of New York
Harbor, 378 U.S. 52, 76 (1964), abrogated on other grounds,
United States v. Balsys, 524 U.S. 666, 687–88 (1998). In
other words, the prophylactic rules are available as a
safeguard to prevent “conduct by [government] officials prior
to trial” that could impair a person’s core Fifth Amendment
rights, Verdugo-Urquidez, 494 U.S. at 264; they do not
provide a sword to sanction the government for an error in
implementing one of these procedural safeguards. As Justice
Souter warned, if a § 1983 action could be raised to enforce
every “complementary rule” the Supreme Court has
“accepted in aid of the privilege against evidentiary use,”
there would be “no limiting principle or reason to foresee a
stopping place short of liability in all such cases.” Chavez,
538 U.S. at 779 (Souter, J., concurring).
Finally, the dissent relies on McKune v. Lile, 536 U.S. 24(2002) (plurality opinion), to support its argument that
Chavez has a § 1983 cause of action here. Dissent at 60.
This reliance is misplaced because McKune, another plurality
opinion, did not even address the issue before us. In McKune,
prison officials recommended that a convicted sex offender
“enter a prison treatment program so that he would not rape
again upon release.” 536 U.S. at 29. The program required
each participant “to admit having committed the crime for
which he is being treated and other past offenses.” Id. The
treatment requirement.” In any event, Chavez was not precluded from
appealing a government sanction, given that he was represented by
counsel at this time.
CHAVEZ V. ROBINSON 31
program did not offer immunity because of the therapeutic
benefit for the participants “to accept full responsibility for
their past actions.” Id. at 34. The prisoner in McKune
refused to participate in the program on the ground that the
required admissions would violate his Fifth Amendment
privilege. Id. at 31. Instead, he brought an action under
§ 1983 seeking an injunction to prevent the prison from
“withdrawing his prison privileges and transferring him to a
different housing unit” as a result of his failure to enter into
the program. Id.
The Supreme Court rejected his claim. Justice Kennedy’s
plurality opinion concluded that the prisoner had not suffered
a violation of his Fifth Amendment right because “[t]he
consequences in question . . . are not ones that compel a
prisoner to speak about his past crimes despite a desire to
remain silent.” Id. at 36. Justice O’Connor’s opinion, which
we treat as controlling, see Antelope, 395 F.3d at 1133 n.1,
agreed that the consequences were not “so great as to
constitute compulsion for purposes of the Fifth Amendment
privilege against self-incrimination,” 536 U.S. at 49(O’Connor, J., concurring), but cautioned that she was not
establishing “a comprehensive theory of the Fifth
Amendment privilege against self-incrimination,” id. at 53.
In other words, the Supreme Court resolved the prisoner’s
appeal on the ground that the absence of compulsion
eliminates the possibility of a Fifth Amendment claim.
Having rejected the prisoner’s § 1983 claim on the ground
that his testimony was not compelled, the Court did not
consider any other ground for rejecting the claim. No opinion
in McKune addressed whether the prisoner could have raised
a § 1983 claim even though his admissions were not used in
a criminal case against him. There is no basis, therefore, for
32 CHAVEZ V. ROBINSON
the dissent’s assertion that “all nine justices in McKune
indicated” that § 1983 liability would attach to a claim like
Chavez’s. Dissent at 60. Put differently, McKune provides
no support whatsoever for the dissent’s proposed rule that a
prisoner who suffers punishment as a consequence of failing
to speak can bring an action under § 1983. Dissent at 60.
Rather than conjure a rule from McKune’s silence, it is more
fruitful to consider how the Court addressed that exact issue
in the very next term, and held that a plaintiff has not suffered
a violation of the core constitutional right—and cannot bring
a § 1983 action—if no compelled statement is used in a
criminal case. Chavez, 538 U.S. at 772.
In sum, we are bound by our precedent, which makes
clear that the Fifth Amendment is not violated “unless and
until allegedly coerced statements were used against the
suspect in a criminal case.” Stoot, 582 F.3d at 923. Because
“the core of the guarantee against compelled
self-incrimination is the exclusion” of compelled,
incriminating evidence at trial, Chavez, 538 U.S. at 777(Souter, J., concurring), and there is a completed violation of
such a right only if the testimony is used at trial, we conclude
that the district court did not err in dismissing Chavez’s Fifth
Amendment § 1983 action.
C
Because we conclude that Chavez cannot bring a § 1983
claim for violation of his Fifth Amendment rights, we address
the defendants’ claim that they are entitled to qualified
immunity only briefly.
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
CHAVEZ V. ROBINSON 33
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “A clearly established right is one that is
‘sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle
v. Howards, 566 U.S. 658, 664 (2012)). In determining
whether an officer can be said to have violated a clearly
established right, we must not “define clearly established law
at a high level of generality,” al-Kidd, 563 U.S. at 742, but
instead “the clearly established law must be ‘particularized’
to the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552
(2017) (per curiam) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). The Court does “not require a case directly
on point,” but “existing precedent must have placed the
statutory or constitutional question beyond debate.” Id.(cleaned up)(quoting al-Kidd, 563 U.S. at 741). Put simply,
qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986).
When determining claims of qualified immunity at the
motion-to-dismiss stage, we take the well-pleaded facts in the
complaint as true. Keates v. Koile, 883 F.3d 1228, 1235 (9th
Cir. 2018). Here, the SAC alleges that the court ordered
Chavez to complete a sex offender treatment program and
that Robinson (the director of the program) required Chavez
to “admit to the conduct alleged in each count of conviction”
34 CHAVEZ V. ROBINSON
as a condition of participating in the program.9 It is well
established that sex offender treatment programs typically
require “the program participant to admit having committed
the crime for which he is being treated and other past
offenses,” and experts deem this to be an essential component
of the program. McKune, 536 U.S. at 30; see also Antelope,
395 F.3d at 1137 (noting that “requiring convicted sex
offenders to give a sexual history, admitting responsibility for
past misconduct to participating counselors, serves an
important rehabilitative purpose,” and that “[r]esearch
indicates that offenders who deny all allegations of sexual
abuse are three times more likely to fail in treatment than
those who admit even partial complicity” (quoting McKune,
536 U.S. at 33)).10 The SAC does not provide any
information regarding whether Chavez’s statements would,
or could, be used in a subsequent criminal proceeding.
Considering the “particularized” facts of this case, see
White, 137 S. Ct. at 552, we must consider whether it was
beyond debate that the director of a sex offender therapy
program and a parole officer, acting under a valid court order
requiring a releasee to participate in a sex offender program,
9
Because the SAC alleges that Robinson acted under color of state
law, we will assume it to be true for purposes of this analysis. Cf. Johnson
v. Knowles, 113 F.3d 1114, 1119 (9th Cir. 1997) (holding that a non-
governmental employee may be sued as a state actor under § 1983 only if
he is a “willful participant[] in joint activity with the State or its agents”).
10
Oregon law also requires that releasees admit past sexual conduct
in certain circumstances. Persons convicted of sex crimes are required to
complete a sex offender treatment program if given a term of post-prison
supervision. Or. Rev. Stat. § 144.102(4)(b)(F). Such programs may
include polygraph testing, id., which may be used to examine the
releasee’s sexual history, see, e.g., State v. Tenbusch, 886 P.2d 1077, 1078
& n.1 (Or. 1994).
CHAVEZ V. ROBINSON 35
could not impose a sanction on the releasee for failure to
participate in the program as required by court order. We are
doubtful that a reasonable director of a sex offender therapy
program and a parole officer are “plainly incompetent” or
“knowingly violate the law,” Malley, 475 U.S. at 341, if they
sanction a releasee in this narrow context. Robinson and
Moore could have reasonably concluded that Chavez’s
statements would not, or could not, be used in a subsequent
criminal proceeding given the deputy district attorney’s
representation that Chavez would be given immunity and the
fact that the state court subsequently issued an order ensuring
that Chavez’s statements could not be used in that manner.
Robinson and Moore’s situation thus differs from the one in
Antelope, where the risk of incrimination was “real and
appreciable” because, in part, the sex offenders’ admissions
of past sex crimes would “likely make their way into the
hands of prosecutors,” 395 F.3d at 1135, and lead “to more
prosecutions and convictions,” id. at 1138; see also id.
(suggesting that a treatment program violates a sex offender’s
evidentiary privilege when it is “an elaborate attempt to avoid
the protections offered by the privilege against compelled
self-incrimination” (quoting McKune, 536 U.S. at 40–41)).
Further, Robinson and Moore could have reasonably
concluded that they were bound to implement a valid court
order. Indeed, government officials may be immune from
liability where they act in reliance on a valid court order. See
Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir.
2013) (holding that prison officials charged with executing
facially valid court orders enjoy absolute immunity from
§ 1983 liability for conduct prescribed by those orders). And
we generally afford immunity to “parole officials for the
‘imposition of parole conditions’ and the ‘execution of parole
revocation procedures,’ tasks integrally related to an official’s
36 CHAVEZ V. ROBINSON
decision to grant or revoke parole.” Swift v. California,
384 F.3d 1184, 1189 (9th Cir. 2004) (quoting Anderson v.
Boyd, 714 F.2d 906, 909 (9th Cir. 1983)). This immunity
applies even where parole officers “impos[e] allegedly
unconstitutional parole conditions.” Thornton v. Brown,
757 F.3d 834, 839–40 (9th Cir. 2013).
But this qualified immunity analysis raises some close
questions. Robinson and Moore did not offer Chavez
immunity (assuming they had the authority to do so) when
they required Chavez to admit to the conduct underlying his
conviction. Under Antelope, state officials may not impose
sanctions on a sex offender for failure to make incriminating
statements as part of a treatment program, where the officials
expressly decline to offer immunity and insist that a sex
offender’s statements can be used in subsequent criminal
proceedings. 395 F.3d at 1139. Rather than decide whether
Antelope clearly established a rule that applies to Robinson
and Moore in this somewhat different context, we deem it
prudent to rely on our holding that Chavez’s Fifth
Amendment claim may not proceed in the absence of use of
a coerced statement in a criminal proceeding, and so we do
not reach the second prong of the qualified immunity
analysis.
III
We next turn to Chavez’s claim that Moore and Robinson
violated his Sixth Amendment rights by denying him counsel
at a critical stage.11 “It is beyond dispute that ‘[t]he Sixth
11
In his SAC, Chavez claims only that Moore and Robinson
“retaliated against [him] for asserting his right to speak with a lawyer in
June, 2010 before responding to the demand that he admit disputed
CHAVEZ V. ROBINSON 37
Amendment safeguards to an accused who faces incarceration
the right to counsel at all critical stages of the criminal
process.’” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (per
curiam) (quoting Iowa v. Tovar, 541 U.S. 77, 80–81 (2004)).
“A critical stage is a ‘trial-like confrontation, in which
potential substantial prejudice to the defendant’s rights
inheres and in which counsel may help avoid that prejudice.’”
United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003)
(quoting Beaty v. Stewart, 303 F.3d 975, 991–92 (9th Cir.
2002)). Chavez raises two theories as to why Robinson and
Moore violated his Sixth Amendment right to counsel when
they denied his request to speak with his lawyer before he
signed the documents admitting prior conduct as part of his
treatment program.
Chavez first argues that Robinson and Moore violated his
Sixth Amendment right to counsel on appeal, which is a
critical stage of a criminal proceeding for purposes of the
Sixth Amendment. See Penson v. Ohio, 488 U.S. 75, 88
(1988). Chavez’s theory comprises multiple steps, and
proceeds as follows. According to Chavez, consultation with
an attorney about whether to appeal is a critical stage of the
proceedings. Second, Chavez claims that if he admitted to
the conduct underlying his conviction, and then prevailed on
allegations that were then pending on appeal, in violation of Chavez’s
Sixth Amendment right to counsel,” but does not argue that Moore and
Robinson’s failure to allow him to speak to counsel at that time violated
his Sixth Amendment right. In his opening brief, however, Chavez does
not mention retaliation, but raises only a Sixth Amendment claim based
on denial of counsel at a critical stage. The defendants do not address this
discrepancy, so we assume that Chavez’s Sixth Amendment claim is
properly before us. See Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.
2010) (“It is well-established that a party can waive waiver implicitly by
failing to assert it.” (cleaned up)).
38 CHAVEZ V. ROBINSON
appeal, any appeal would be futile because he would be re-
convicted on retrial if his admission was not suppressed but
was introduced at a retrial. Therefore, according to Chavez,
consulting with a lawyer regarding whether to make an
admission is analogous to consulting with a lawyer about
whether to withdraw an appeal. And consulting about
withdrawal, he asserts, is substantially the same as consulting
with a lawyer about whether to appeal at all. As a result,
Chavez argues, Robinson and Moore’s refusal to allow him
to consult his attorney before making admissions was in
effect a complete deprivation of counsel at the critical stage
of determining whether to appeal or withdraw an appeal.
This argument fails. First, no precedent supports
Chavez’s claim that he was denied counsel on appeal. There
is no dispute that Chavez was represented by appellate
counsel for his appeal and was not denied representation
“during the appellate court’s actual decisional process.”
Penson, 488 U.S. at 88. Nor does Chavez allege that
Robinson prevented him from communicating with appellate
counsel about withdrawing his appeal outside of the sex
therapy treatment program. Therefore, even assuming that a
decision to withdraw an appeal is a critical stage, Chavez was
not denied access to counsel for that purpose. Nor does any
precedent support Chavez’s argument that his meeting with
Robinson for sex therapy treatment was a critical stage of his
appeal. Any admission made by Chavez in his sex therapy
program could not directly affect his appeal, because it would
not have been part of the trial court record on appeal. And
any admission—at least to the extent it was coerced by threat
of sanctions—would not affect his retrial, because it could be
suppressed in any subsequent criminal proceeding. Turley,
414 U.S. at 78; Garrity, 385 U.S. at 500. Further, our
precedent makes clear that “the Sixth Amendment has no
CHAVEZ V. ROBINSON 39
application to supervised release proceedings,” United States
v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010) (citing
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)), which
further undermines any claim that Chavez had a Sixth
Amendment right to counsel in meetings or treatment
prescribed by his supervised release conditions, cf. Murphy,
465 U.S. at 424 n.3 (probationer “had no federal right to have
an attorney present at the meeting” with his probation officer
where he was asked to make incriminating statements.).
Moreover, the case on which Chavez primarily relies, Roe
v. Flores-Ortega, 528 U.S. 470 (2000), does not establish that
a defendant is entitled to consult with counsel before making
admissions in a sex offender treatment program, or that
making a decision regarding this program requirement
constitutes a critical stage of a criminal proceeding. In
Flores-Ortega, a criminal defendant’s counsel failed to file a
timely notice of appeal, despite telling the defendant she
would do so. Id. at 475. The Supreme Court held that there
was no per se rule that such a failure constituted ineffective
assistance of counsel; rather, ineffective assistance of
appellate counsel due to failure to file a notice of appeal must
be analyzed under the familiar two-prong test from Strickland
v. Washington. Id. at 476–77 (citing Strickland v.
Washington, 466 U.S. 668 (1984)). Applying Strickland, the
Court spelled out the circumstances in which a counsel’s
failure to consult on whether to file a notice of appeal could
constitute deficient performance, as well as the circumstances
in which such deficient performance could be prejudicial to
the defendant. Id. at 477–81. But contrary to Chavez’s
argument, Flores-Ortega does not establish that a defendant
has a right to consult with counsel when deciding whether to
“effectively forfeit” an appeal by making admissions required
by the therapy program; nor does Flores-Ortega address the
40 CHAVEZ V. ROBINSON
particular situation here, where a therapist declined to allow
a sex offender participating in a treatment program to consult
with his appellate counsel. Chavez points to no other case
that clearly establishes a right to counsel in a sex offender
treatment program.
Because no existing precedent establishes that a prisoner
who is prevented from contacting counsel during sex offender
treatment has been denied counsel on appeal, Robinson and
Moore are also entitled to qualified immunity on this claim
under the second prong of the analysis. See al-Kidd, 563 U.S.
at 735.
Chavez’s second theory as to why his Sixth Amendment
rights were violated due to the denial of counsel at a critical
stage also fails. Chavez claims that a criminal defendant is
entitled to counsel during any proceeding that could
jeopardize a potential retrial. According to Chavez, this rule
is clearly established by Cahill v. Rushen, 678 F.2d 791 (9th
Cir. 1982). In Cahill, after a criminal defendant was
convicted at trial, a police captain immediately ordered the
defendant moved from the jail to the sheriff’s office and
interrogated him without giving him Miranda warnings or
offering him an opportunity to speak with his attorney. Id. at
793. The defendant confessed to the crime for which he had
been convicted, and the confession was used at a subsequent
retrial. Id. We held that there was a deprivation of counsel
at a critical stage of a criminal prosecution, because “[w]hen
as here defendant’s right to counsel has attached, any
incriminating statements deliberately elicited by the State
without at least affording defendant the opportunity to consult
with counsel, must be excluded at any subsequent trial on the
charges for which defendant is then under indictment.” Id.
at 795. We explained that this rule was necessary because the
CHAVEZ V. ROBINSON 41
practice of interviewing a criminal defendant after conviction
“easily lends itself to abuse,” and “may often greatly
prejudice a defendant who could otherwise gain an acquittal
upon retrial.” Id. at 794 n.2.
While the rule in Cahill may be applicable here at some
“high level of generality,” al-Kidd, 563 U.S. at 742, the facts
are too dissimilar to clearly establish a rule that Chavez was
entitled to consult with counsel at the sex offender treatment
program. Cahill involved the custodial interrogation of a
defendant taken directly from jail by a police chief who
deliberately elicited a confession for law enforcement
purposes. 678 F.2d at 793. By contrast, a sex offender
treatment program is much less of a “trial-like confrontation,”
Leonti, 326 F.3d at 1117 (citation omitted); it seeks
rehabilitation, and uses confession only as a treatment
strategy.12 Moreover, while cases have discussed this typical
12
Justice Kennedy’s plurality opinion in McKune v. Lile explained
why confession contributes to rehabilitation:
Therapists and correctional officers widely agree that
clinical rehabilitative programs can enable sex
offenders to manage their impulses and in this way
reduce recidivism. See U.S. Dept. of Justice, Nat.
Institute of Corrections, A Practitioner’s Guide to
Treating the Incarcerated Male Sex Offender xiii (1988)
(“[T]he rate of recidivism of treated sex offenders is
fairly consistently estimated to be around 15%,”
whereas the rate of recidivism of untreated offenders
has been estimated to be as high as 80%. “Even if both
of these figures are exaggerated, there would still be a
significant difference between treated and untreated
individuals”). An important component of those
rehabilitation programs requires participants to confront
their past and accept responsibility for their misconduct.
Id., at 73. “Denial is generally regarded as a main
42 CHAVEZ V. ROBINSON
aspect of sex offender treatment programs in the context of
Fifth Amendment rights, see, e.g., Murphy, 465 U.S. at 422;
McKune, 536 U.S. at 30; Antelope, 395 F.3d at 1137, no case
has held that a sex offender is entitled to counsel while
engaging in such treatment. Thus, Cahill does not clearly
establish the right to counsel at a sex offender treatment
program.
In sum, Chavez has not identified any case holding that a
convicted sex offender participating in a treatment program
as a condition of probation or supervised release is entitled to
counsel before complying with the requirement (typical of
such programs) to admit the conduct underlying the
conviction, even if such admission has the potential to
prejudice a potential retrial after a successful appeal. Given
that clearly established law must be “particularized to the
facts of the case,” White, 137 S. Ct. at 552, we cannot say that
Robinson and Moore were “plainly incompetent” or
“knowingly violate[d] the law,” Malley, 475 U.S. at 341.
Accordingly, Robinson and Moore are entitled to qualified
impediment to successful therapy,” and “[t]herapists
depend on offenders’ truthful descriptions of events
leading to past offences in order to determine which
behaviours need to be targeted in therapy.” H.
Barbaree, Denial and Minimization Among Sex
Offenders: Assessment and Treatment Outcome,
3 Forum on Corrections Research, No. 4, p. 30 (1991).
Research indicates that offenders who deny all
allegations of sexual abuse are three times more likely
to fail in treatment than those who admit even partial
complicity. See B. Maletzky & K. McGovern, Treating
the Sexual Offender 253–255 (1991).
536 U.S. at 33.
CHAVEZ V. ROBINSON 43
immunity on this claim.13 We therefore affirm the dismissal
of Chavez’s right-to-counsel claim.
IV
Finally, we turn to Chavez’s claim that Robinson and
Moore violated his First Amendment right to bring a civil
lawsuit by terminating him from the sex offender treatment
program and revoking his supervision in retaliation for his
filing a lawsuit against them. According to Chavez, this right
is clearly established by Rhodes v. Robinson, 408 F.3d 559(9th Cir. 2005), and related cases establishing that prison
officials cannot punish a prisoner for filing grievances or
lawsuits, see, e.g., Brodheim v. Cry, 584 F.3d 1262, 1269–73
(9th Cir. 2009); Rizzo v. Dawson, 778 F.2d 527, 531–32 (9th
Cir. 1985). In Rhodes, prison officials brought a motion to
dismiss a prisoner’s § 1983 action, alleging that they
retaliated against him for filing inmate grievances by, among
other things, destroying and confiscating his personal
property. 408 F.3d at 563. The prison officials argued that
they were entitled to qualified immunity because it was not
clearly established that a prisoner has a constitutional right to
be free from retaliatory conduct that does not chill or deter
the exercise of the prisoner’s constitutional rights, and they
argued that the prisoner’s repeated filings, including the
§ 1983 action, showed that the prisoner’s First Amendment
rights had not been chilled. Id. at 566.
13
Because we decide that it was not clearly established that Chavez
had a right to counsel at his sex offender treatment program, we need not
address Moore’s additional argument that she did not violate Chavez’s
right to counsel because Chavez made the demand only to Robinson.
44 CHAVEZ V. ROBINSON
We held that in the prison context, the “prohibition
against retaliatory punishment is ‘clearly established law’ in
the Ninth Circuit for qualified immunity purposes.” Id.
at 569 (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.
1995)). We explained that the First Amendment right to file
prison grievances and pursue civil rights litigation in the
courts is fundamentally important because “[w]ithout those
bedrock constitutional guarantees, inmates would be left with
no viable mechanism to remedy prison injustices.” Id. at 567.
Therefore, a prisoner can make a viable claim of First
Amendment retaliation by alleging five basic elements:
“(1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected
conduct, and that such action (4) chilled the inmate’s exercise
of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Id.
at 567–68 (footnote omitted). The prisoner does not have to
allege a “total chilling of his First Amendment rights to file
grievances and to pursue civil rights litigation in order to
perfect a retaliation claim.” Id. at 568 (emphasis in original).
Rhodes concluded that at the motion to dismiss stage, the
prisoner had adequately satisfied the pleading requirements,
and therefore the officers were not entitled to qualified
immunity. Id. at 569–70.
There are significant distinctions between Rhodes and the
facts alleged in the SAC. Unlike in Rhodes, the SAC in this
case does not present a retaliatory action in a prison context,
but instead alleges that Chavez is a releasee attending a sex
offender treatment program. Chavez cites no case holding
that a person providing rehabilitation therapy for a supervised
releasee may not discharge the releasee from the program in
response to a lawsuit. It is not “arbitrary and irrational” for
a sex offender treatment program director, like Robinson, to
CHAVEZ V. ROBINSON 45
conclude that when a participant in a therapy program is
adversarial, repeatedly refuses to participate in the threshold
requirement for admission, and brings a legal action against
the therapist, no therapeutic relationship could be developed,
and therefore such a program would be ineffective in
promoting a Chavez’s rehabilitation. See Brodheim, 584 F.3d
at 1272. Under these circumstances, Robinson could
reasonably conclude he had a “legitimate correctional goal”
in dismissing Chavez from the sex offender treatment
program. Rhodes, 408 F.3d at 567–68. Thus, in the “specific
context of th[is] case,” Keates, 883 F.3d at 1235 (citation
omitted), nothing would have given Robinson “fair notice”
that his “conduct was unlawful,” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018). Accordingly, Robinson is entitled to
qualified immunity.
For the same reason, we conclude that Moore is entitled
to qualified immunity. Once Robinson terminated Chavez
from the sex offender treatment program, Chavez was no
longer in compliance with the court-ordered condition of
probation and supervised release. Although Chavez argues
that Moore had “ready alternatives” to giving him a jail
sanction that would have achieved the same penological goal
(such as transferring him to a different sex offender treatment
program), see Shaw v. Murphy, 532 U.S. 223, 228 (2001),
there is no clearly established law precluding a probation
officer from imposing a sanction under these circumstances.
AFFIRMED.
46 CHAVEZ V. ROBINSON
BERZON, Circuit Judge, concurring in part in the judgment
and dissenting in part:
The Fifth Amendment provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Daniel Chavez was
incarcerated for declining to admit to criminal conduct during
therapy prescribed as a condition of his parole. An appeal of
his conviction was pending at the time, and his concern was
that if his appeal succeeded—which it did—any statement he
made about the crime for which he was convicted could be
used against him in a retrial.
To me, it takes no complex analysis to conclude that
Chavez was “compelled in [a] criminal case” to be a witness
against himself and imprisoned because he would not be,
violating his Fifth Amendment rights and giving rise to a
cause of action under 42 U.S.C. § 1983. The applicable
precedents have taken some twists and turns, but, after
working through them, I am convinced that the
straightforward conclusion is the correct one: On the record
viewed most favorably to Chavez, Robinson and Moore
violated a well-established prohibition on incarcerating a
parolee for failing to incriminate himself, recognized in
United States v. Antelope, 395 F.3d 1128, 1139 (9th Cir.
2005); Chavez may sue for damages under 42 U.S.C. § 1983for that violation; and Chavez’s Fifth and Fourteenth
Amendment claim is not barred by qualified immunity. As
the majority decides otherwise, I dissent from the majority’s
Fifth Amendment § 1983 holding.
I also write separately to address the majority’s reasoning
on Chavez’s Sixth Amendment claim. To the extent the
majority reaches the merits (which is not clear), I disagree
CHAVEZ V. ROBINSON 47
with the majority’s assertion that Chavez’s Sixth Amendment
claim fails because he had access to counsel at other stages of
his appeal and because the Sixth Amendment does not apply
to supervised release proceedings. These arguments
mischaracterize Chavez’s claim: that he had a right to consult
with counsel about waiving his Fifth Amendment privilege
while his appeal was still pending. I agree, however, that
there is no clearly established law on whether Chavez had a
right to consult with counsel under the circumstances, and so
concur in holding that Chavez’s Sixth Amendment claim is
barred by qualified immunity.1
I. Self-Incrimination
Again, the self-incrimination language of the Fifth
Amendment (which is incorporated to the states via the
Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6
(1964)), guarantees that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S.
Const. amend. V. “The constitutional privilege against self-
incrimination has two primary interrelated facets: The
Government may not use compulsion to elicit self-
incriminating statements, and the Government may not
permit the use in a criminal trial of self-incriminating
statements elicited by compulsion.” Murphy v. Waterfront
Comm’n of N.Y. Harbor, 378 U.S. 52, 57 n.6 (1964) (citation
omitted), overruled on other grounds by United States v.
Balsys, 524 U.S. 666, 684, 688 & n.11 (1998) (abrogating
Waterfront Commission to the extent it relied on historical
analysis for a more expansive interpretation of the Self-
1
I concur in the majority’s resolution of Chavez’s First Amendment
§ 1983 claim.
48 CHAVEZ V. ROBINSON
Incrimination Clause).2 The second facet of this guarantee is
protected by a set of procedural safeguards ensuring that,
when an individual does give self-incriminating testimony in
non-criminal proceedings in response to government
compulsion, that testimony may not be admitted in any
related criminal proceedings. See Chavez v. Martinez,
538 U.S. 760, 770–71 (2003) (plurality opinion). As the
majority ably demonstrates, our circuit’s interpretation of
Chavez does not allow for a cause of action under § 1983
where an individual gives self-incriminating statements
outside of a criminal proceeding. See Aguilera v. Baca,
510 F.3d 1161, 1174 n.9 (9th Cir. 2007).
But this rule does not control where the privilege is
invoked, no statement is given, and the individual suffers
punishment as a consequence—here, the classic punishment
of incarceration. First, long-standing Supreme Court law
makes clear that the compulsion itself is of constitutional
significance. See Lefkowitz v. Cunningham, 431 U.S. 801,
806 (1977). Second, a case from this court nearly identical to
this one, United States v. Antelope, holds that the Fifth
Amendment was violated by compulsion, although there was
no use of a compelled statement in a criminal proceeding.
See 395 F.3d at 1134–39. Third, the actual holding of the
Chavez case has no application in these circumstances, and
the language that the majority relies upon in the Chavez
opinions as reaching the present circumstances is not binding.
See infra, pp. 54–56; Tekoh v. County of Los Angeles,
2
Waterfront Commission says “criminal trial,” but the amendment
itself says “criminal case.” Consistent with the text, case law has made
clear that the self-incrimination protection applies to aspects of criminal
proceedings other than trial. See Stoot v. City of Everett, 582 F.3d 910,
925 (9th Cir. 2009).
CHAVEZ V. ROBINSON 49
985 F.3d 713, 722 (9th Cir. 2021). And finally, no binding
case law of the Supreme Court or of this court bars a § 1983
cause of action seeking damages for the revocation of
supervised release and incarceration as violative of the Fifth
Amendment’s prohibition against compulsion, and both
Supreme Court case law and policy considerations support
such a cause of action.
a. The Scope of the Privilege
Chavez was told that if he did not admit to the criminal
conduct underlying his conviction during prescribed therapy
sessions, his supervised release would be revoked. He
refused to incriminate himself and was immediately jailed,
three times. The first two times this happened, he was not
offered immunity for any retrial or other future criminal
proceedings. As Chavez was detained immediately after he
refused to incriminate himself, see infra p. 61 n.3, he had no
opportunity to seek immunity from a judge. So: Chavez was
punished—compelled (by jail time) for refusing to be a
witness against himself (by admitting to the underlying
criminal conduct), with his criminal case not concluded and
a retrial possible.
At its most fundamental, the Fifth Amendment
not only permits a person to refuse to testify
against himself at a criminal trial in which he
is a defendant, but also “privileges him not to
answer official questions put to him in any
other proceeding, civil or criminal, formal or
informal, where the answers might
incriminate him in future criminal
proceedings.”
50 CHAVEZ V. ROBINSON
Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). This right is
meaningless if the state may incarcerate individuals for
refusing to incriminate themselves. The Supreme Court has
long recognized that the Fifth Amendment, incorporated to
the states via the Fourteenth Amendment, “secures . . . the
right of a person to remain silent unless he chooses to speak
in the unfettered exercise of his own will, and to suffer no
penalty . . . for such silence.” Malloy, 378 U.S. at 8(emphasis added). Governments therefore may not “penalize
assertion of the constitutional privilege against compelled
self-incrimination by imposing sanctions to compel testimony
which has not been immunized,” Cunningham, 431 U.S. at
806, nor does the Fifth Amendment permit law enforcement
officers to use threats of harsh treatment to compel self-
incrimination by criminal defendants, see Tobias v. Arteaga,
996 F.3d 571, 582 (2021).
Threatened imprisonment is a quintessential “penalt[y]
capable of forcing the self-incrimination which the
Amendment forbids.” Cunningham, 431 U.S. at 806. The
protection guaranteed by the Self-Incrimination Clause
therefore “forbids the States to resort to imprisonment . . . to
compel [someone] to answer questions that might incriminate
him.” Malloy, 378 U.S. at 8. Likewise, “there are no
circumstances in which law enforcement officers may suggest
that a suspect’s exercise of the right to remain silent may
result in harsher treatment.” Tobias, 996 F.3d at 582 (quoting
United States v. Harrison, 34 F.3d 886, 891–92 (9th Cir.
1994)). This logic applies with equal force in the probation
context: “[I]f the state, either expressly or by implication,
asserts that invocation of the privilege would lead to
revocation of probation, it would have created the classic
CHAVEZ V. ROBINSON 51
penalty situation.” Murphy, 465 U.S. at 435; see Antelope,
395 F.3d at 1138 n.4.
Nor is the prohibition on penalizing the refusal to self-
incriminate limited to threats of incarceration. Uniformed
Sanitation Men Ass’n v. Commissioner of Sanitation,
392 U.S. 280 (1968), held that the state of New York violated
the Fifth Amendment when it terminated public employees
for “invoking and refusing to waive their constitutional right
against self-incrimination.” Id. at 283; accord Garrity v. New
Jersey, 385 U.S. 493, 497 (1967). Turley likewise held that
architects suffered constitutional injury when they were
disqualified from contracting with the state as punishment for
refusing to self-incriminate. See 414 U.S. at 82–83. And
Cunningham recognized that requiring an official in a state
political party to relinquish his public office constituted
unconstitutional compulsion. See 431 U.S. at 807.
In these latter cases, “the attempt to override the
witnesses’ privilege proved unsuccessful,” and no coerced
statement was ever made or admitted. Murphy, 465 U.S.
at 434. Nonetheless, “the Court ruled that the State could not
constitutionally make good on its prior threat” of penalty. Id.It was the coercive acts themselves—the acts of
compulsion—that triggered protection under the Fifth
Amendment. See Cunningham, 431 U.S. at 803–04; Turley,
414 U.S. at 76; Uniformed Sanitation Men, 392 U.S. at 283.
So these cases demonstrate that the constitutional prohibition
against “compel[ling] a [person] to speak about his past
crimes despite a desire to remain silent,” McKune v. Lile,
536 U.S. 24, 36 (2002) (plurality opinion), forbids acts of
compulsion—and most especially incarceration—where, as
here, there is a pending criminal proceeding and no promise
52 CHAVEZ V. ROBINSON
that any statements made will not be used during that
proceeding.
We held exactly that in United States v. Antelope.
Antelope considered near-identical facts to this one: A
plaintiff released from prison on supervised release was
required, as a condition of his mandated treatment program,
to detail his sexual history without any assurance of
immunity. 395 F.3d at 1130. He repeatedly refused; in
response, the government revoked his supervised release and
incarcerated him. Id. On direct appeal of the revocation,
Antelope asserted that the government’s conduct violated his
right against compelled self-incrimination. Id. at 1131–32.
We agreed, holding that Antelope had established a Fifth
Amendment violation by showing that “(1) that the testimony
desired by the government carried the risk of incrimination,
and (2) that the penalty he suffered”—incarceration—
“amounted to compulsion.” Id. at 1134 (citations omitted).
Notably, as here, Antelope did not make any incriminating
statement, and so the case did not concern the invocation of
an evidentiary privilege during a criminal proceeding.
For its holding, Antelope relied heavily on the Supreme
Court’s reasoning in McKune v. Lile, which Antelope read as
prohibiting the government from revoking supervised release
as a result of a defendant’s “refusal to disclose his sexual
history without receiving immunity from prosecution.” Id.
at 1139; see id. at 1135–39. McKune concerned a § 1983
challenge to a sexual abuse treatment program administered
in a Kansas prison. 536 U.S. at 30–31 (plurality opinion).
Participants in the program were required to “detail[] all prior
sexual activities”; providing this information was not
immunized. Id. at 30, 34. Participants who refused to
participate in the program had their privileges reduced,
CHAVEZ V. ROBINSON 53
received curtailed “visitation rights, earnings, work
opportunities, . . . and other privileges,” and were advised
they would be transferred to a higher-security unit. Id.at 30–31.
A fractured Court held that the program did not violate
the Fifth Amendment, but only on the ground that the
consequences of silence—“transfer to another prison where
television sets are not placed in each inmate’s cell, where
exercise facilities are not readily available, and where work
and wage opportunities are more limited”—were not severe
enough to rise to the level of compulsion. Id. at 36; see id. at
48–49 (O’Connor, J., concurring in the judgment). There was
no majority opinion regarding the standard applicable when
evaluating what conduct constitutes compulsion. See id.
at 48. But Justice Kennedy’s plurality opinion, which
proposed the most demanding standard, acknowledged that
the outcome might be different if the decision not to
participate in the treatment program resulted in a longer
prison sentence. See id. at 38 (plurality opinion). And Justice
O’Connor’s concurrence, which Antelope held is controlling,
see 395 F.3d at 1133 n.1, likewise noted that “longer
incarceration” imposes a penalty “far greater than those we
have already held to constitute unconstitutional compulsion,”
McKune, 536 U.S. at 52 (O’Connor, J., concurring in the
judgment).
As Antelope held, Chavez v. Martinez is not to the
contrary. See 395 F.3d at 1140. Two opinions in Chavez,
together subscribed to by a majority of the justices,
distinguish between core Fifth Amendment rights and
“prophylactic” protections of those rights. See 538 U.S.
at 770 (plurality opinion); see also id. at 777–78 (Souter, J.,
concurring in the judgment). But that case did not “unseat
54 CHAVEZ V. ROBINSON
decades of Supreme Court law” holding that penalties for
invoking the privilege against self-incrimination violate the
Fifth Amendment. Antelope, 395 F.3d at 1140. To the
contrary, Justice Thomas’s plurality opinion in Chavez
recognized that “no ‘penalty’ may ever be imposed on
someone who exercises his core Fifth Amendment right not
to be a ‘witness’ against himself in a criminal case,” while
drawing on the Supreme Court’s line of penalty cases.
538 U.S. at 768–69 (plurality opinion). And Justice Souter
recognized that the holding of those penalty cases was
necessary “to protect the basic right” against self-
incrimination. Id. at 777–78 (Souter, J., concurring in the
judgment). Rather than limit the scope of the Fifth
Amendment’s protections, Chavez concerned the scope of
§ 1983’s affirmative action for damages arising out of a
violation of those protections. See Antelope, 395 F.3d
at 1141. It is to this question that I now turn.
b. The Scope of § 1983 Liability
The majority maintains that, despite the square holding of
Antelope that a parole revocation and imprisonment for
refusing to make non-immunized incriminatory statements is
impermissible under the Fifth Amendment, Chavez v.
Martinez does not permit an affirmative action in damages for
that impermissible compulsion. I disagree.
i.
First, there is no controlling opinion in Chavez regarding
whether § 1983 actions are available in such circumstances.
This circuit recently held that “none of the six opinions [in
Chavez] provides a binding rationale,” and specifically that
“Justice Thomas’s plurality . . . cannot control.” Tekoh,
CHAVEZ V. ROBINSON 55
985 F.3d at 722. In so holding, Tekoh applied the analysis set
out in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016)
(en banc), for determining what rule we apply when faced
with “fractured Supreme Court decision[s],” id. at 1021–22.
Under Davis, we are bound by such decisions only to the
extent that “a majority of the Justices agree upon a single
underlying rationale and one opinion can reasonably be
described as a logical subset of the other.” Id. at 1022.
Where no such “common denominator of the Court’s
reasoning exists, we are bound only by the specific result.”
Id. at 1028 (internal quotation marks omitted).
In Chavez, Justice Thomas’s narrower view of the scope
of the Fifth Amendment reflected a “rationale significantly
broader than those of the concurring Justices.” Tekoh,
985 F.3d at 722. Justice Thomas broadly maintained that
“violations of ‘judicially crafted prophylactic rules do not
violate the constitutional rights of any person’ and therefore
‘cannot be grounds for a § 1983 action.’” Id. at 721 (quoting
Chavez, 538 U.S. at 772 (plurality opinion)). Justice Souter,
by contrast, agreed that civil liability was inappropriate in
Chavez, but he would not have held, as Justice Thomas did,
that enforcement of the right against self-incrimination was
limited to evidentiary exclusion. Chavez, 538 U.S. at 777–78
(Souter, J., concurring in the judgment).
Rather, Justice Souter explained that the Supreme Court’s
penalty cases “express[] a judgment that the [Fifth
Amendment’s] core guarantee, or the judicial capacity to
protect it, would be placed at some risk in the absence of [the]
complementary protection[s]” those cases recognized. Id.
at 778. Although he noted that recognizing a § 1983 cause of
action absent the “courtroom use of a criminal defendant’s
compelled, self-incriminating testimony” would “be well
56 CHAVEZ V. ROBINSON
outside the core of Fifth Amendment protection,” Justice
Souter rejected the plurality’s position that “that alone” was
“a sufficient reason to reject Martinez’s claim,” id. at 777,
and concluded only that, in the Chavez case before the
court—in which the Fifth Amendment violation consisted of
“questioning alone”—Martinez could not “make the
‘powerful showing,’ subject to a realistic assessment of costs
and risks, necessary to expand protection of the privilege
against compelled self-incrimination to the point of” civil
liability, id. at 777–78 (quoting Miranda v. Arizona, 384 U.S.
436, 515, 517 (1966) (Harlan, J., dissenting)).
In Justice Souter’s view, then, the availability of a § 1983
claim depends on whether such a rule is “necessary in aid of
the basic guarantee” of the Fifth Amendment privilege. Id.
at 779. And, contrary to Justice Thomas’s assertion that a
violation of the Fifth Amendment absent courtroom use of
inadmissible statements could never be the basis for a § 1983
claim, Justice Souter did not suggest that such a claim would
be unavailable where there is an “imposition[] of[ a] penalt[y]
that would undermine the right to immunity.” Id. at 778
(citing Uniformed Sanitation Men, 392 U.S. at 284–85;
Turley, 414 U.S. at 77–79; Cunningham, 431 U.S. at 804–06;
McKune, 536 U.S. at 35 (plurality opinion)). Thus, as in
Tekoh, there is no controlling opinion in Chavez regarding the
availability of § 1983 under the present circumstances. See
Tekoh, 985 F.3d at 722.
To be sure, Antelope recognized that, after Chavez, it is
sometimes appropriate to distinguish “defensive” Fifth
Amendment challenges from an affirmative action brought
under § 1983. See Antelope, 395 F.3d at 1141. But Antelope
did not resolve whether § 1983 liability would attach to a
claim arising out of the constitutional violation recognized in
CHAVEZ V. ROBINSON 57
that case. The opinion noted only that the government
“might” prevail in such a posture; it did not hold that it
would. Id. There is therefore no controlling precedent, either
from the Supreme Court or this circuit, directly resolving the
§ 1983 availability question before us now.
The majority recognizes Tekoh’s holding that “none of the
six separate opinions in Chavez ‘provides a binding
rationale,’” Maj. Op. at 21 (quoting Tekoh, 985 F.3d at 722),
yet it resists the conclusion that follows—that “the broad
principles in Justice Thomas’s opinion are not binding,”
Tekoh, 985 F.3d at 722. Instead, the majority relies on cases
which it maintains have read Chavez to stand for the
proposition that “mere coercion does not violate the text of
the Self-Incrimination Clause absent use of the compelled
statements in a criminal case against the witness.” Aguilera,
510 F.3d at 1173 (quoting Chavez, 538 U.S. at 769). The
cases the majority cites, however, predate our analysis in
Tekoh, which held conclusively that “none of the six opinions
[in Chavez] provides a binding rationale.” Tekoh, 985 F.3d at
722. Indeed, the majority’s cases did not analyze Chavez
under Davis or Marks v. United States, 430 U.S. 188 (1977),
the Supreme Court case Davis interpreted. Tekoh undertook
that analysis for the first time in our circuit, rendering any
reliance on Justice Thomas’s plurality opinion as binding no
longer good law.
Moreover, none of the cases cited by the majority
addressed the set of circumstances at issue here, in which the
plaintiff invoked his Fifth Amendment privilege during the
pendency of a criminal proceeding and was punished for
doing so. In Aguilera, law enforcement deputies were
threatened with “re-assignment from field to desk duty” for
declining to answer questions about possible misconduct.
58 CHAVEZ V. ROBINSON
510 F.3d at 1173; see id. at 1172. We dismissed the deputies’
§ 1983 claim in large part on the ground that the plaintiffs had
failed to show compulsion. See id. at 1173. We further
stated that “the deputies’ Fifth Amendment claim . . . fails
because the deputies were never charged with a crime, and no
incriminating use of their statements has ever been made.”
Id. Unlike the deputies in Aguilera, Chavez was charged with
a crime and was in the midst of an active appeal. Aguilera is
therefore inapposite.
The majority’s reliance on Stoot v. City of Everett,
582 F.3d 910 (9th Cir. 2009), is misplaced as well. There, we
addressed a § 1983 claim for a violation of the plaintiff’s
Fifth Amendment privilege after a state court had suppressed
the plaintiff’s confession as “the product of impermissible
coercion.” Id. at 917. Citing Chavez, we noted that “coercive
police questioning does not violate the Fifth Amendment,
absent use of the statements in a criminal case.” Id. at 923.
But, like Chavez itself, Stoot involved impermissible
“questioning alone.” Chavez, 538 U.S. at 777 (Souter, J.,
concurring in the judgment). We had no occasion to decide
in Stoot whether a § 1983 cause of action exists when a
plaintiff is actually punished for invoking his Fifth
Amendment privilege. Nor did we address that question in
United States v. Hulen, 879 F.3d 1015 (9th Cir. 2018), which
assessed whether a proceeding to revoke supervised release
constitutes a criminal case, not the imposition of punishment
for the invocation of the Fifth Amendment privilege, id.at 1017–21.
Once one considers only the “specific result” in Chavez
as precedential, see Tekoh, 985 F.3d at 722 (quoting Davis,
825 F.3d at 1028), the majority’s holding loses any tether to
the Fifth Amendment or to § 1983 jurisprudence. The
CHAVEZ V. ROBINSON 59
“specific result” in Chavez does not govern this case because,
unlike Daniel Chavez here, the plaintiff in Chavez was never
charged with a crime, nor was he penalized for declining to
incriminate himself. See 538 U.S. at 764. And, as my earlier
discussion indicates, incarcerating the petitioner here for
refusing to incriminate himself while his direct appeal was
pending violates long-standing precedent concerning the
scope of the Fifth Amendment’s protections against
compelling individuals to incriminate themselves, whether
one terms some of those protections “prophylactic” and
others “core” or not. As in Antelope, “whether we describe
[the] decision as arising out of a ‘prophylactic’ or
‘constitutional’ rule, the same result obtains: [Chavez]
followed the appropriate course of action by refusing to
answer the sexual history question until he was assured that
his answers would be protected by immunity.” 395 F.3d at
1141.
ii.
As neither Chavez nor Antelope squarely decides whether
§ 1983 liability attaches to a scenario in which an individual
has suffered a coercive penalty—here, incarceration—for
refusing to incriminate himself, we turn to McKune v. Lile, in
which the Supreme Court considered an almost identical
question. As discussed supra, McKune and this case share
key facts. Like the plaintiff in McKune, Chavez was required
to share details of his sexual history as part of a court-
imposed sexual abuse treatment program and faced adverse
consequences for refusing to do so. But unlike the plaintiffs
in McKune, who were already incarcerated and faced a
penalty of reduced prison privileges and transfer to a higher-
security facility, 536 U.S. at 31 (plurality opinion), Chavez,
who entered his treatment program on supervised release, was
60 CHAVEZ V. ROBINSON
immediately incarcerated for declining to share those details.
Put simply, Chavez was jailed for refusing to incriminate
himself. So, while McKune held that no § 1983 action was
available to the plaintiffs because the relevant penalties were
not severe enough to rise to the level of compulsion, id. at 36;
see id. at 48–49 (O’Connor, J., concurring in the judgment),
the penalty faced by Chavez in this case—incarceration—is
precisely the type all nine justices in McKune indicated would
amount to impermissible compulsion. See id.
Crucially, no opinion in McKune intimated that the
plaintiff’s action under § 1983 for violation of his Fifth
Amendment self-incrimination privilege failed because, as
here, no incriminating statements were made and so no
incriminating statements were introduced in any criminal
proceeding. The alleged harm suffered by the plaintiff in
McKune was a penalty for his silence, not adverse
consequences at trial; the § 1983 suit failed because there was
no compulsion for Fifth Amendment purposes, not because
no incriminating statement was sought to be introduced at
trial. McKune therefore is fully consistent with holding that
a § 1983 cause of action is available to Chavez here.
Moreover, this case decidedly does not present the danger
identified in Justice Souter’s Chavez concurrence that, if we
were to recognize possible liability, § 1983 would in the
future apply “in every instance of interrogation producing a
statement inadmissible under Fifth or Fourteenth Amendment
principles.” 538 U.S. at 778 (Souter, J., concurring in the
judgment). At the end of the day, the plaintiff in Chavez
suffered no constitutional injury: He was never charged with
a crime, id. at 764 (plurality opinion), and although his
medical condition when questioned by law enforcement may
have made the interrogation coercive, he was neither
CHAVEZ V. ROBINSON 61
penalized nor threatened with a penalty for refusing to self-
incriminate, nor was he harmed by the admission of
incriminating evidence at trial. Even if recognizing a cause
of action in cases like Chavez would “offer[] no limiting
principle” to civil liability for alleged Fifth Amendment
cases, id. at 779 (Souter, J., concurring), this is not such a
case. Here, unlike in Chavez, the plaintiff was the subject of
an ongoing criminal appeal, and was actually incarcerated for
declining to incriminate himself. Recognizing a § 1983 cause
of action under these circumstances would not expose the
government to liability “in every instance” in which an
involuntary confession is obtained. Id. at 778. Rather, under
the logic articulated in Justice Souter’s concurrence, Chavez
has made a “powerful showing,” that his “core guarantee, or
the judicial capacity to protect it,” was violated. Id. at 778.3
3
The majority asserts that Chavez “could have sought protection from
government sanctions in other ways,” such as by demanding immunity
before making any incriminating statements or by appealing the
revocation of his supervised release. Maj. Op. at 29 & n.8. This suggestion
is belied by the record. Chavez explained in exhibits to his original
complaint that the moment he refused to incriminate himself, he “was
immediately apprehended, handcuffed and taken to jail,” where he was
“detained without bail,” and he relied on that assertion in his opening brief
on appeal. The majority maintains that this allegation should be ignored
because, it contends, Chavez did not reattach these exhibits to his Second
Amended Complaint. Id. at 31 n.8. But the district court repeatedly cited
the docket entry containing the exhibits to the original complaint in its
order dismissing Chavez’s Second Amended Complaint. In particular, the
district court considered the “Violation and Structured Sanction Reporting
Form,” filled out by Moore with regard to Chavez’s third incarceration.
That form establishes that Chavez’s “[c]ustody” began on March 10—the
date he refused to participate in his therapy—even though the sanction
was not officially imposed until March 22, presumably after a hearing
before the State Board of Parole and Post-Prison Supervision. So, these
62 CHAVEZ V. ROBINSON
Thus, even though, as we recognized in Antelope, the “scope
of the Fifth Amendment’s efficacy is narrower when used as
a sword in a civil suit than when used as a shield against
criminal prosecution,” 395 F.3d at 1141, this case comes
within that scope.
In sum, defendants Robinson and Moore violated
Chavez’s “right . . . to remain silent unless he chooses to
speak in the unfettered exercise of his own will, and to suffer
no penalty . . . for such silence.” Malloy, 378 U.S. at 8.
Recognizing a cause of action under § 1983 for this conduct
would not impermissibly expand civil liability beyond that
needed to preserve a meaningful Fifth Amendment protection
where (1) there is a pending criminal proceeding as to which
the compelled statements may be pertinent; (2) there was no
assurance of immunity in that proceeding and no opportunity
to obtain that assurance; and (3) the plaintiff invoked his Fifth
Amendment privilege and was actually imprisoned. In these
narrow circumstances, I would hold that Chavez has stated a
claim for damages under § 1983.
c. Qualified Immunity
Once it is established that Chavez has a cause of action
under § 1983, it is clear that his claim is not barred by
qualified immunity: Antelope “clearly established” the
constitutional right that Chavez alleges was violated.
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Again, Antelope
held that “revok[ing] . . . supervised release as a result of [a
documents show that, at best, the alternatives suggested by the majority
could only have limited—not eliminated—the period of Chavez’s renewed
incarceration.
CHAVEZ V. ROBINSON 63
criminal defendant’s] refusal to disclose his sexual history
without receiving immunity from prosecution . . . violate[s]
his Fifth Amendment right against self-incrimination.”
395 F.3d at 1139; see also Murphy, 465 U.S. at 435. That is
precisely what happened here. Chavez and was told to
“admit or go to jail.” When he declined to give details of his
sexual history, he was, as promised, sent to jail. He was not
offered immunity until after his second jail sanction, and he
had until then no realistic opportunity to seek it. Any
“representation that Chavez would be given immunity” prior
to that point, Maj. Op. at 35 (emphasis added), is irrelevant;
at the time he invoked his Fifth Amendment rights, Chavez
had neither been offered nor “receiv[ed] immunity from
prosecution,” Antelope, 395 F.3d at 1139. As Antelope’s
holding directly controls, there is “clearly established law
[that is] ‘particularized’ to the facts of the case.” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). I would
therefore hold that Chavez’s Fifth Amendment claim may
proceed.
II. Right to Counsel
With respect to Chavez’s Sixth Amendment claim, it is
not altogether clear whether the majority has ruled only that
the claim is barred by qualified immunity or has instead
reached the merits of the Sixth Amendment issue. To the
extent the majority decides this question only on the grounds
of qualified immunity, I agree that Chavez’s Sixth
Amendment claim (incorporated to the states via the
Fourteenth Amendment, Douglas v. California, 372 U.S. 353,
356–57 (1963)), is barred by qualified immunity, because it
remains an open question whether Chavez was denied access
to counsel at a “critical stage” of his case. But to the extent
64 CHAVEZ V. ROBINSON
that the majority indicates Chavez was not “denied counsel
on appeal” because he had access to counsel at other stages
of his appeal or because the Sixth Amendment does not apply
to supervised release proceedings, Maj. Op. at 38–40, the
majority misconstrues the nature of Chavez’s claim and of the
Sixth Amendment’s protections. I would therefore affirm on
the Sixth Amendment issue only, and explicitly, on the
ground that Chavez has not alleged a violation of a clearly
established constitutional rule.
Chavez asserts that Robinson and Moore violated his right
to counsel by refusing to allow him to consult with his
attorney when he was forced to decide whether to admit to his
crimes as a part of his treatment program. Chavez contends
that, because defendants forced him to “admit or go to jail,”
and admitting to the conduct underlying his convictions
would have decimated his chances of winning a retrial,
making it “pointless to pursue an appeal,” he was effectively
deprived of his right to be represented at a critical stage of his
appeal—the decision whether to continue or to abandon his
appeal.
“[T]he right to be represented by counsel is among the
most fundamental of rights.” Penson v. Ohio, 488 U.S. 75,
84 (1988). This right “applies at all critical stages of
prosecution,” United States v. Rice, 776 F.3d 1021, 1024 (9th
Cir. 2015) (citing Marshall v. Rodgers, 569 U.S. 58, 62
(2013) (per curiam)), including on appeal, see Douglas,
372 U.S. at 356–57. The majority nevertheless appears to
reject Chavez’s Sixth Amendment claim on the grounds that
he had counsel “during the appellate court’s actual decisional
process,” Maj. Op. at 38 (quoting Penson, 488 U.S. at 88),
and that he was not directly denied access to counsel for the
CHAVEZ V. ROBINSON 65
purpose of deciding “outside of the sex treatment therapy
program” whether to withdraw his appeal, id.These analyses misunderstand both our Sixth Amendment
case law and Chavez’s claim. To start, Chavez’s claim is that
he was denied the right to consult with his counsel at a
particularly critical moment—when Robinson and Moore
demanded that he waive his Fifth Amendment privilege and
make incriminating admissions regarding the conduct
underlying his convictions. It is immaterial to that claim that
he had access to counsel at other points during his appeal.
The question, rather, is whether Chavez was denied counsel
at a “critical stage” of prosecution—any step of a criminal
proceeding “that h[olds] significant consequences for the
accused.” Bell v. Cone, 535 U.S. 685, 695–96 (2002).
That Chavez was represented “during the appellate
court’s actual decisional process,” Penson, 488 U.S. at 88, is
not dispositive of that question. The right to counsel applies
“at any stage of the prosecution, formal or informal, in court
or out, where counsel’s absence might derogate from the
accused’s right to a fair trial.” United States v. Hamilton,
391 F.3d 1066, 1070 (9th Cir. 2004) (quoting United States
v. Wade, 388 U.S. 218, 226 (1967)). Both the Supreme Court
and this Circuit have faithfully applied this principle to
various discrete phases of criminal proceedings, holding inter
alia that a defendant’s Sixth Amendment rights are
implicated when he is denied access to counsel: during
overnight recess, Geders v. United States, 425 U.S. 80, 90–91
(1976); during jury deliberations, Musladin v. Lamarque,
555 F.3d 830, 835, 842 (9th Cir. 2009); and at closing
argument, Herring v. New York, 422 U.S. 853, 864–65
(1975); see also Missouri v. Frye, 566 U.S. 134, 140 (2012)
(collecting examples). To suggest that Chavez was not
66 CHAVEZ V. ROBINSON
denied counsel in one critical phase of his appeal because he
had counsel in another critical phase of his appeal flies in the
face of these cases.
Nor does it matter to Chavez’s Sixth Amendment claim
that he had the opportunity outside the mandated treatment
program to communicate with counsel about withdrawing his
appeal. See Maj. Op. at 38. Chavez does not argue that he
was generally prevented from consulting with counsel about
bringing or withdrawing his appeal. To the contrary,
Chavez’s point is that waiving his Fifth Amendment privilege
and confessing to the conduct underlying his conviction while
his appeal was still pending would have had the same effect
as withdrawing his appeal. Such a waiver and confession
might “make it pointless to pursue an appeal” by rendering
any possible retrial “a mere formality,” Cahill v. Rushen,
678 F.2d 791, 795 (9th Cir. 1982), and so constitutes a
“critical stage” of the prosecution to the same degree as does
a discussion about whether procedurally to withdraw an
appeal, id.The majority further contends that, because “the Sixth
Amendment has no application to supervised release
proceedings,” Chavez accordingly had no “right to counsel in
meetings or treatment prescribed by his supervised release
conditions.” Maj. Op. at 38–39 (first quoting United States
v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010); and then citing
Murphy, 465 U.S. at 424 n.3). That statement of law is true
but irrelevant. Chavez does not claim that he generally has “a
right to counsel in a sex offender treatment program.” Maj.
Op. at 40. He claims only a specific right—to consult with
his counsel about the implications of waiving his Fifth
Amendment privilege on his pending appeal and possible
retrial.
CHAVEZ V. ROBINSON 67
True, the fact that Chavez was in a sex offender treatment
program enabled Robinson and Moore to invoke the coercive
pressure of imprisonment to attempt to extract his confession.
But the reason Chavez was in a “critical stage” of his
prosecution was not because he was in a sex offender
treatment program but rather because waiving his privilege
would “h[old] significant consequences for” his likelihood of
success on appeal and retrial. Cone, 535 U.S. at 695–96.
For that reason, the majority’s invocation of United States
v. Spangle, 626 F.3d 488 (9th Cir. 2010), is beside the point.
In Spangle, we held that the Sixth Amendment did not apply
to supervised release proceedings because such proceedings
are “indistinguishable from the revocation of parole.”
626 F.3d at 494. Specifically, we relied on the Supreme
Court’s holding in Morrissey v. Brewer, 408 U.S. 471 (1972),
that the Sixth Amendment does not apply to the revocation of
parole because “revocation of parole is not part of a criminal
prosecution.” Spangle, 626 F.3d at 494 (quoting Morrissey,
408 U.S. at 480). By contrast, Chavez claims here that the
Sixth Amendment applied precisely because of the effect
waiving his Fifth Amendment privilege would have on his
appeal and potential retrial, both undoubtedly “part of a
criminal prosecution.” See Penson, 488 U.S. at 88 (appeal);
Cahill, 678 F.2d at 795 (retrial). Minnesota v. Murphy,
465 U.S. 420 (1984), is likewise inapposite because, in that
case as well, there was no pending prosecution or appeal as
to which the potential invocation of the right against self-
incrimination, including the possibility of seeking judicial
immunity, was pertinent, see id. at 422–25 & n.3.
Spangle, Morrissey, and Murphy, then, stand only for the
proposition that probation or supervised release proceedings
do not in and of themselves trigger the Sixth Amendment
68 CHAVEZ V. ROBINSON
right to counsel. It says nothing about the right to consult
counsel before being compelled to waive the Fifth
Amendment privilege during a pending appeal, when that
could render the entire appeal an exercise in futility.
Whether Chavez was denied counsel at a “critical stage”
of his appeal when he was not permitted to consult with his
attorney about whether to make the potentially self-
incriminating statements is therefore an open question on the
merits. As “[a]ny amount of additional jail time has Sixth
Amendment significance,” Frye, 566 U.S. at 147 (alterations
omitted) (quoting Glover v. United States, 531 U.S. 198, 203
(2001)), I believe it likely that he was. Nonetheless, it is not
necessary for us to conduct this fact-specific analysis here,
because, as the majority explains, neither Roe v. Flores-
Ortega, 528 U.S. 470 (2000), nor Cahill v. Rushen, 678 F.2d
791 (9th Cir. 1982), clearly establishes the right Chavez
asserts, and thus his right-to-counsel claim is foreclosed by
qualified immunity. I write separately, however, to
emphasize that Chavez’s right-to-counsel claim is foreclosed
on this ground only. Neither the fact that he had counsel at
other stages of his appeal nor the fact that the Sixth
Amendment is inapplicable to supervised release proceedings
has any bearing on his claim.
For the foregoing reasons, I respectfully concur in the
judgment as to the Sixth Amendment qualified immunity
issue but dissent with regard to the Fifth Amendment § 1983
issue and the majority’s reasoning on the Sixth Amendment
question.