Vogt v. City of Hays

PUBLISH FILED
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________
January 4, 2017
Elisabeth A. Shumaker
MATTHEW JACK DWIGHT VOGT, Clerk of Court
Plaintiff - Appellant,
v. No. 15-3266
CITY OF HAYS, KANSAS; CITY
OF HAYSVILLE, KANSAS; DON
SCHEIBLER; JEFF WHITFIELD;
KEVIN SEXTON; BRANDON
WRIGHT,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:15-CV-01150-JTM-GEB)
_________________________________
Morgan L. Roach, McCauley & Roach, LLC, Kansas City, Missouri,
for Plaintiff-Appellant.
David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka,
Kansas, David G. Seely, Fleeson, Gooing, Coulson & Kitch, L.L.C.,
Wichita, and Jeremy K. Schrag, Lewis Brisbois Bisgaard & Smith
LLP, Wichita, Kansas (Alan L. Rupe, and Jessica L. Skladzien, Lewis
Brisbois Bisgaard & Smith, LLP, Wichita, Kansas, with them on the
brief), for Defendants-Appellees.
_________________________________
Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mr. Matthew Vogt alleges a violation of the Fifth Amendment
through the compulsion to incriminate himself and the use of his
compelled statements in a criminal case. Based on the alleged Fifth
Amendment violation, Mr. Vogt invokes 42 U.S.C. § 1983, suing (1)
the City of Hays, Kansas; (2) the City of Haysville, Kansas; and (3)
four police officers. The district court dismissed the complaint for
failure to state a claim, reasoning that
 the right against self-incrimination is only a trial right
and
 Mr. Vogt’s statements were used in pretrial proceedings,
but not in a trial.
We draw four conclusions:
1. The Fifth Amendment is violated when criminal
defendants are compelled to incriminate themselves and
the incriminating statement is used in a probable cause
hearing.
2. The individual officers are entitled to qualified immunity.
3. The City of Haysville did not compel Mr. Vogt to
incriminate himself.
4. Mr. Vogt has stated a plausible claim for relief against
the City of Hays.
Accordingly, we (1) affirm the dismissal of the claims against the
four police officers and Haysville and (2) reverse the dismissal of the
claim against the City of Hays.
2
I. Mr. Vogt alleges that his compelled statements were used in
a criminal case.
Because this appeal is based on a dismissal for failure to state a
valid claim, we credit the factual allegations in the complaint. Brown
v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).
Mr. Vogt was employed as a police officer with the City of
Hays. In late 2013, Mr. Vogt applied for a position with the City of
Haysville’s police department. During Haysville’s hiring process,
Mr. Vogt disclosed that he had kept a knife obtained in the course of
his work as a Hays police officer.
Notwithstanding this disclosure, Haysville offered the job to
Mr. Vogt. But his disclosure about the knife led Haysville to make
the offer conditional: Mr. Vogt could obtain the job only if he
reported his acquisition of the knife and returned it to the Hays
police department. Two Haysville police officers said that they
would follow up with Hays to ensure that Mr. Vogt complied with the
condition.
Mr. Vogt satisfied the condition, reporting to the Hays police
department that he had kept the knife. The Hays police chief reacted
by ordering Mr. Vogt to submit a written report concerning his
possession of the knife. Mr. Vogt complied, submitting a vague one-
3
sentence report. He then provided Hays with a two-week notice of
resignation, intending to accept the new job with Haysville.
In the meantime, the Hays police chief began an internal
investigation into Mr. Vogt’s possession of the knife. In addition, a
Hays police officer required Mr. Vogt to give a more detailed
statement in order to keep his job with the Hays police department.
Mr. Vogt complied, and the Hays police used the additional statement
to locate additional evidence.
Based on Mr. Vogt’s statements and the additional evidence,
the Hays police chief asked the Kansas Bureau of Investigation to
start a criminal investigation. In light of this request, the Hays police
department supplied Mr. Vogt’s statements and additional evidence
to the Kansas Bureau of Investigation. The criminal investigation led
the Haysville police department to withdraw its job offer.
Mr. Vogt was ultimately charged in Kansas state court with two
felony counts related to his possession of the knife. Following a
probable cause hearing, the state district court determined that
probable cause was lacking and dismissed the charges.
This suit followed, with Mr. Vogt alleging use of his
statements (1) to start an investigation leading to the discovery of
additional evidence concerning the knife, (2) to initiate a criminal
investigation, (3) to bring criminal charges, and (4) to support the
4
prosecution during the probable cause hearing. Mr. Vogt argues that
these uses of his compelled statements violated his right against self-
incrimination.
II. Standard of Review
We engage in de novo review of the district court’s dismissal.
Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015).
To survive the motion to dismiss, Mr. Vogt had to plead enough facts
to create a facially plausible claim. Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012). The claim is facially plausible if
Mr. Vogt pleaded enough factual content to allow “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).
III. The Meaning of a “Criminal Case” Under the Fifth
Amendment
The Fifth Amendment 1 protects individuals against compulsion
to incriminate themselves “in any criminal case.” U.S. Const. amend.
V. This amendment prohibits compulsion of law enforcement officers
to make self-incriminating statements in the course of employment.
Garrity v. New Jersey, 385 U.S. 493, 500 (1967). As a law
enforcement officer, Mr. Vogt enjoyed protection under the Fifth
1
The Fifth Amendment applies to the states through
incorporation of the Fourteenth Amendment. Malloy v. Hogan, 378
U.S. 1, 6 (1964).
5
Amendment against use of his compelled statements in a criminal
case.
The district court held that Mr. Vogt had not stated a valid
claim under the Fifth Amendment because the incriminating
statements were never used at trial. We disagree, concluding that the
phrase “criminal case” includes probable cause hearings.
A. Our precedents provide conflicting signals on whether
the term “criminal case” includes pretrial proceedings
as well as the trial.
The U.S. Supreme Court has not conclusively defined the scope
of a “criminal case” under the Fifth Amendment. In dicta, the
Supreme Court suggested in a 1990 opinion, United States v.
Verdugo-Urquidez, that the right against self-incrimination is only a
trial right. 494 U.S. 259, 264 (1990).
But the Supreme Court later appeared to retreat from that dicta.
In Mitchell v. United States, for instance, the Court held that the
right against self-incrimination extends to sentencing hearings. 526
U.S. 314, 320-21, 327 (1999). The Court reasoned that “[t]o maintain
that sentencing proceedings are not part of ‘any criminal case’ is
contrary to the law and to common sense.” Id. at 327.
Even more recently, the Court again addressed the scope of the
Fifth Amendment in Chavez v. Martinez, 538 U.S. 760 (2003). In
Chavez, the plaintiff sued a police officer under § 1983, alleging
6
coercion of self-incriminating statements in violation of the Fifth
Amendment. 538 U.S. at 764-65. Writing for himself and two other
justices, Justice Thomas concluded that (1) the plaintiff had failed to
state a valid claim because he had not been charged with a crime and
(2) the plaintiff’s statements had not been used in a criminal case. Id.
at 766.
Though the Court did not produce a majority opinion on the
Fifth Amendment issue, Justice Thomas’s plurality opinion explained
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.” Id. at 769. Justice Thomas added
that “[a] ‘criminal case’ at the very least requires the initiation of
legal proceedings.” Id. at 766. Two other justices agreed with the
outcome, reasoning that the Fifth Amendment’s text “focuses on
courtroom use of a criminal defendant’s compelled, self-
incriminating testimony.” Id. at 777 (Souter, J., concurring in the
judgment) (emphasis added).
The Chavez Court did not decide “the precise moment when a
‘criminal case’ commences.” Id. at 766-67. Justice Thomas cited
Verdugo-Urquidez, but apparently did not read it to limit the Fifth
Amendment to use at trial. See id. at 767.
7
Three other justices stated that a violation of the Self-
Incrimination Clause is complete the moment a confession is
compelled. Id. at 795 (Kennedy, J., concurring in part and dissenting
in part). Thus, even in light of Verdugo-Urquidez, these three
justices concluded that the Fifth Amendment extended beyond use of
a compelled statement at trial. Id. at 792.
Following Chavez, a circuit split developed over the definition
of a “criminal case” under the Fifth Amendment. The Third, Fourth,
and Fifth Circuits have stated that the Fifth Amendment is only a
trial right. 2 See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)
(“[A] plaintiff may not base a § 1983 claim on the mere fact that the
police questioned her in custody without providing Miranda warnings
when there is no claim that the plaintiff’s answers were used against
her at trial.”); Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)
(“[The plaintiff] does not allege any trial action that violated his
Fifth Amendment rights; thus, ipso facto, his claim fails on the
[Chavez] plurality’s reasoning.”); Murray v. Earle, 405 F.3d 278,
2
The defendants contend that the Sixth Circuit Court of Appeals
has also held that the Fifth Amendment is only a trial right.
Appellees’ Br. at 20-21. But the court did so only in an unpublished
opinion. Smith v. Patterson, 430 F. App’x 438, 441 (6th Cir. 2011).
The court’s unpublished opinions do not constitute binding precedent
even in the Sixth Circuit. Graiser v. Visionworks of America, Inc.,
819 F.3d 277, 283 (6th Cir. 2016).
8
285 (5th Cir. 2005) (“The Fifth Amendment privilege against self-
incrimination is a fundamental trial right which can be violated only
at trial, even though pre-trial conduct by law enforcement officials
may ultimately impair that right.”).
In contrast, the Second, Seventh, and Ninth Circuits have held
that certain pretrial uses of compelled statements violate the Fifth
Amendment. For example, the Second Circuit has applied Chavez to
hold that a bail hearing is part of a criminal case under the Fifth
Amendment. Higazy v. Templeton, 505 F.3d 161, 171, 173 (2d Cir.
2007). The Seventh Circuit has similarly held that a criminal case
under the Fifth Amendment includes not only bail hearings but also
suppression hearings, arraignments, and probable cause hearings.
Best v. City of Portland, 554 F.3d 698, 702-03 (7th Cir. 2009)
(suppression hearing); Sornberger v. City of Knoxville, 434 F.3d
1006, 1027 (7th Cir. 2006) (bail hearings, arraignments, and probable
cause hearings). And the Ninth Circuit has concluded that a Fifth
Amendment violation occurs when “[a] coerced statement . . . has
been relied upon to file formal charges against the declarant, to
determine judicially that the prosecution may proceed, and to
determine pretrial custody status.” See Stoot v. City of Everett, 582
F.3d 910, 925 (9th Cir. 2009).
9
Different approaches have emerged because the Chavez Court
declined to pinpoint when a “criminal case” begins. See Koch v. City
of Del City, 660 F.3d 1228, 1245 (10th Cir. 2011) (noting that “the
plurality in Chavez explicitly declined to decide ‘the precise moment
when a “criminal case” commences’”). Like the Supreme Court, we
have not yet defined the starting point for a “criminal case.” See id.
at 1246 (avoiding this issue by holding that at the time of the
plaintiff’s arrest, “it was not clearly established that an individual
has a Fifth Amendment right to refuse to answer an officer’s
questions during a Terry stop”); Eidson v. Owens, 515 F.3d 1139,
1149 (10th Cir. 2008) (declining to define the scope of the right
against self-incrimination because the plaintiff “never incriminated
herself during a custodial interrogation”).
The defendants argue that we have consistently held that the
Fifth Amendment right is only a trial right. We disagree.
In support of their argument, the defendants cite our opinions
in Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976), and Pearson v.
Weischedel, 349 F. App’x 343 (10th Cir. 2009) (unpublished). These
opinions do not help in answering our question. In Bennett, we held
that civil liability may not arise from (1) failure to give Miranda
warnings or (2) testimony about compelled statements. 545 F.2d at
1263-64. These scenarios are not involved here. And in our
10
unpublished opinion in Pearson, we rejected a Fifth Amendment
claim, stating that the plaintiff had pleaded guilty and had never gone
to trial. Pearson, 349 F. App’x at 348. Our analysis was brief and
omitted discussion of Chavez. Thus, Pearson does not aid our
inquiry.
In addition, the defendants read In re Grand Jury Subpoenas
Dated Dec. 7 & 8 (Stover), 40 F.3d 1096 (10th Cir. 1994), to suggest
that a violation of the right against self-incrimination occurs only at
trial. This suggestion is based on a questionable interpretation of the
opinion. In Stover, the parties agreed that a Fifth Amendment
violation occurs when a grand jury returns an indictment based on a
compelled statement. 40 F.3d at 1100-01. Notwithstanding the
parties’ agreement on this issue, we quoted language from an earlier
opinion describing the Fifth Amendment as a trial right. See id. at
1103 (“The time for protection [of the right against self-
incrimination] will come when, if ever, the government attempts to
use [allegedly incriminating] information against the defendant at
trial.” (quoting United States v. Peister, 631 F.2d 658, 662 (10th Cir.
1980))).
Though we quoted this restrictive language, we also suggested
in dicta that the parties had correctly assumed that the Fifth
Amendment is triggered when a compelled statement is used during
11
grand jury proceedings. See id. at 1103 (“If an officer, whose
compelled statement has been considered by the grand jury,
ultimately is indicted, that officer will be able to challenge the
indictment and the government will be required to prove that its
evidence derives entirely from legitimate sources or that the grand
jury’s exposure to the officer’s statement was harmless.”). Thus,
Stover arguably suggests that the right against self-incrimination is
not simply a trial right.
* * *
These precedents supply conflicting signals on whether the
term “criminal case” extends beyond the trial itself. The dicta in
Verdugo-Urquidez suggests that the term “criminal case” refers only
to the trial. This dicta would ordinarily guide us, for Supreme Court
dicta is almost as influential as a Supreme Court holding. Indep. Inst.
v. Williams, 812 F.3d 787, 798 n.13 (10th Cir. 2016). But after
deciding Verdugo-Urquidez, the Supreme Court interpreted the term
“criminal case” in Mitchell to include sentencing proceedings. And
even later, the Supreme Court declined in Chavez to define when a
“criminal case” begins.
Like the Supreme Court, we have declined until now to
unequivocally state whether the term “criminal case” covers pretrial
proceedings as well as the trial. Precedents like Stover provide
12
conflicting signals without squarely deciding the issue. Nonetheless,
today’s case requires us to decide whether the term “criminal case”
covers at least one pretrial proceeding: a hearing to determine
probable cause.
B. The right against self-incrimination applies to use in a
probable cause hearing as well as at trial.
To decide this issue, we join the Second, Seventh, and Ninth
Circuits, concluding that the right against self-incrimination is more
than a trial right. In reaching this conclusion, we rely on
 the text of the Fifth Amendment, which we interpret in
light of the common understanding of the phrase
“criminal case,” and
 the Framers’ understanding of the right against self-
incrimination.
The Fifth Amendment provides that no person shall be
“compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V (emphasis added). The text of the Fifth
Amendment does not contain
 the term “trial,” which appears in the next two
amendments, or
 the term “criminal prosecution,” which is used in the next
amendment.
See U.S. Const. amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .”); id. amend.
13
VII (“In suits at common law . . . the right of trial by jury shall be
preserved . . . .”).
The Supreme Court discussed the distinction between the
language of the Fifth and Sixth Amendments in Counselman v.
Hitchcock, 142 U.S. 547 (1892), overruled in part on other grounds
by Kastigar v. United States, 406 U.S. 441 (1972). In Counselman,
the government argued that a witness could not invoke the Fifth
Amendment in a grand jury proceeding because a “criminal case” did
not exist. 142 U.S. at 562-63. The Supreme Court rejected this
argument. After analyzing the Fifth Amendment’s text and
underlying purpose, the Court held that the witness could plead the
Fifth Amendment during a grand jury proceeding. Id. In the course of
its analysis, the Court reasoned that the language “criminal case” is
broader than the Sixth Amendment’s phrase “criminal prosecution.”
Id.
We agree with the Counselman Court that the term “criminal
case” is broader than the term “criminal prosecution.” Indeed, on its
face, the term “criminal case” appears to encompass all of the
proceedings involved in a “criminal prosecution.”
“The Constitution was written to be understood by the voters;
its words and phrases were used in their normal and ordinary as
distinguished from technical meaning . . . .” United States v.
14
Sprague, 282 U.S. 716, 731 (1931). To determine the commonly
understood meaning of the phrase “criminal case” at the time of
ratification (1791), we examine dictionary definitions from the
Founding era. See Gregory E. Maggs, A Concise Guide to Using
Dictionaries from the Founding Era to Determine the Original
Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014);
see also William M. Carter, Jr., Race, Rights, and the Thirteenth
Amendment: Defining the Badges and Incidents of Slavery, 40 U.C.
Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous
dictionaries “obviously . . . provide some guidance to the commonly
understood meaning of a particular word at the time that word was
used in the constitutional text”).
The most authoritative dictionary of that era was Noah
Webster’s 1828 dictionary, An American Dictionary of the English
Language. See John A. Sterling, Above the Law: Evolution of
Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000)
(stating that most historians use Noah Webster’s 1828 dictionary
when trying to determine the meaning of words during adoption of
the Constitution); see also Charles Wood, Losing Control of
America’s Future—The Census, Birthright Citizenship, and Illegal
Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah
Webster’s 1828 dictionary was “the first and for many years the
15
authoritative American dictionary”); Steven G. Calabresi & Andrea
Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev.
1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as
“an incredible achievement” and as a “dominant” source since its
publication); Gregory E. Maggs, A Concise Guide to Using
Dictionaries from the Founding Era to Determine the Original
Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90
(2014) (stating that the Supreme Court often cites Noah Webster’s
1828 dictionary as evidence of the original meaning of the
Constitution, perhaps based on a belief “that the dictionary may
reflect better the ways in which Americans used and understood the
words in the Constitution”). Webster’s 1828 dictionary defines
“case” as “[a] cause or suit in court,” stating that the term “is nearly
synonymous with cause.” Noah Webster, Case, An American
Dictionary of the English Language (1st ed. 1828). And the
dictionary defines the “nearly synonymous” term “cause” as “[a] suit
or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary
broadly defines “case” as a “thing, matter, question.” N. Bailey, The
Universal Etymological English Dictionary, Case (26th ed. 1789). 3
3
The Founders recognized that a word’s meaning often changes
over time. See Caleb Nelson, Originalism and Interpretive
Conventions, 70 U. Chi. L. Rev. 519, 534 (2003) (“Americans of the
16
The Founders’ understanding of the term “case” suggests that
the Fifth Amendment encompasses more than the trial itself. See
Donald Dripps, Akhil Amar on Criminal Procedure and
Constitutional Law: “Here I Go Down that Wrong Road Again,” 74
N.C. L. Rev. 1559, 1627 (1996). 4 “If the Framers had meant to
founding generation tended to agree with [Samuel Johnson, the 18th
century’s leading lexicographer] that language change was
inevitable.”). But modern legal dictionaries define “case” much as
our Founders did. See Black’s Law Dict. 258 (Bryan A. Garner ed.,
10th ed. 2014) (defining “case” as “[a] civil or criminal proceeding,
action, suit, or controversy at law or in equity”); A Handbook of
Criminal Law Terms 84 (Bryan A. Garner ed., 2000) (defining “case”
as “[a] proceeding, action, suit, or controversy at law or in equity”);
Dict. of Legal Terms 70 (Steven H. Gifis, 4th ed. 2008) (defining
“case” as “an action, cause, suit, or controversy, at law or in
equity”); see also Martin H. Redish & Adrianna D. Kastanek,
Settlement Class Actions, the Case-or-Controversy Requirement, and
the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 565
(2006) (“[C]urrent-day legal dictionaries define ‘case’ as a
justiciable ‘action or suit,’ or an ‘argument.’” (footnotes omitted)).
4
Professor Dripps stated:
A “case” in any event is not necessarily identical to a
“prosecution.” The Sixth Amendment uses the latter term,
in dealing with the criminal trial. The Fifth Amendment,
by contrast, contains a miscellany of rights, some against
criminal and some against civil liabilities. We speak
routinely of police investigators working on a case before
they have a suspect. If we think of a “case” as a potential
“prosecution” we can square the text of the Fifth
Amendment with its history.
Donald Dripps, Akhil Amar on Criminal Procedure and
Constitutional Law: “Here I Go Down that Wrong Road Again,” 74
N.C. L. Rev. 1559, 1627 (1996) (footnotes omitted).
17
restrict the right to ‘trial,’ they could have said so.” Thomas Y.
Davies, Farther and Farther from the Original Fifth Amendment: The
Recharacterization of the Right Against Self-Incrimination as a
“Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014
(2003).
This interpretation is supported by the Supreme Court’s opinion
in Blyew v. United States, 80 U.S. 581 (1871). In Blyew, the Supreme
Court addressed the meaning of the word “cases” in Article III’s
reference, “all cases affecting ambassadors, other public minsters,
and consuls.” 80 U.S. at 594. The Blyew Court explained that “[t]he
words ‘case’ and ‘cause’ are constantly used as synonyms in statutes
and judicial decisions, each meaning a proceeding in court, a suit, or
action.” Id. at 595. Like the dictionary definitions from 1828 to now,
Blyew defines “case” broadly, suggesting that a “criminal case” is
not limited to the criminal trial.
We are aided not only by Founding-era dictionary definitions
and Blyew but also by the Framers’ understanding of the phrase “in
any criminal case.” We have few contemporaneous clues of that
understanding, for “references to the privilege [against self-
incrimination] are scarce in the literature and debates surrounding
the ratification of the Constitution and the Bill of Rights.” Michael
Edmund O’Neill, The Fifth Amendment in Congress: Revisiting the
18
Privilege Against Compelled Self-Incrimination, 90 Geo. L.J. 2445,
2486 (2002). But the few existing clues suggest that the Framers
viewed the Fifth Amendment as a right in pretrial proceedings as
well as at trial.
One clue involves the changes in the Fifth Amendment from
drafting to ratification. The amendment had been drafted by James
Madison, who omitted the phrase “criminal case”:
No person shall be subject, except in cases of
impeachment, to more than one punishment or one trial
for the same offence; nor shall be compelled to be a
witness against himself; nor be deprived of life, liberty,
or property, without due process of law; nor be obliged to
relinquish his property, where it may be necessary for
public use, without just compensation.
James Madison, Remarks in Debate in the House of Representatives
(June 8, 1789) (emphasis added), reprinted in 1 Debates and
Proceedings in the Congress of the United States 448, 451-52
(Joseph Gales ed., 1834); United States Congress, Debates and
Proceedings in the Congress of the United States 451-52
(Washington, D.C. 1834). This language “applied to civil as well as
criminal proceedings and in principle to any stage of a legal inquiry,
from the moment of arrest in a criminal case, to the swearing of a
deposition in a civil one.” Leonard W. Levy, Origins of the Fifth
Amendment 423 (1968).
19
In the floor debate on whether to adopt the Bill of Rights,
Representative Laurance expressed concern that Madison’s wording
would conflict with “laws passed.” Statement of Representative John
Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in
the Congress of the United States 782, 782. To avoid this conflict,
Representative Laurance proposed to add the phrase “in any criminal
case.” Id. Representative Laurance’s language was accepted in the
House and Senate. Leonard W. Levy, Origins of the Fifth Amendment
424-26 (1968).
It is unclear which “laws” Representative Laurance was talking
about. One possibility was the proposed Judiciary Act, which would
allow the judiciary to compel production of documents in civil
cases. 5 See United States v. Hubbell, 530 U.S. 27, 53-54 n.3 (2000)
(Thomas, J., concurring). Another possibility was the Collections
Act, which allowed officials to require oaths in customs declarations.
Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas
Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 705 n.450 (1999). But whichever law was at risk,
5
When Representative Laurance proposed to add the phrase “in
any criminal case,” the Judiciary Act of 1789 had passed in the
Senate and remained pending in the House of Representatives.
Michael Edmund O’Neill, The Fifth Amendment in Congress:
Revisiting the Privilege Against Compelled Self-Incrimination, 90
Geo. L.J. 2445, 2484 (2002).
20
Representative Laurance was apparently trying to distinguish
between potential criminal liability and civil liability. See Thomas Y.
Davies, Farther and Farther from the Original Fifth Amendment: The
Recharacterization of the Right Against Self-Incrimination as a
“Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017
(2003) (“[R]egardless of which provision Laurance referred to, it is
still the case that his concern was not to limit the right to criminal
trials as such but only to preserve the distinction that the right
applied only to potential criminal liability rather than civil
liability.”).
When Representative Laurance proposed to confine the Fifth
Amendment to a “criminal case,” there was a consensus that the right
against self-incrimination was not limited to a suspect’s own trial. To
the contrary, “the historical sources show that the right against self-
accusation was understood to arise primarily in pretrial or pre-
prosecution settings rather than in the context of a person’s own
criminal trial.” Id. at 1017-18. If this right were limited to one’s own
trial, the right would have served little purpose, for criminal
defendants were then unable to testify in their own criminal cases.
See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that
when the United States was formed, “criminal defendants were
deemed incompetent as witnesses”).
21
The most natural place for concern about compelled testimony
would have been in proceedings outside of criminal trials, such as
grand jury proceedings. See David Rossman, Conditional Rules in
Criminal Procedure: Alice in Wonderland Meets the Constitution, 26
Ga. St. U.L. Rev. 417, 488 (2010).
After adopting Representative Laurance’s language, the Senate
reorganized the cluster of rights that ultimately went into the Fifth
and Sixth Amendments. “In what was to be the Sixth Amendment the
Senate clustered together the procedural rights of the criminally
accused after indictment.” Leonard W. Levy, Origins of the Fifth
Amendment 427 (1968); see also Thomas Y. Davies, Farther and
Farther from the Original Fifth Amendment: The Recharacterization
of the Right Against Self-Incrimination as a “Trial Right” in Chavez
v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth
Amendment plainly deals with rights that protect ‘the accused’
during the court phase of prosecutions, including trials.”). This
grouping of Sixth Amendment rights omitted the right against self-
incrimination, which was put into the Fifth Amendment with other
rights that unambiguously extended to pretrial proceedings as well as
the trial:
That the self-incrimination clause did not fall into the
Sixth Amendment indicated that the Senate, like the
House, did not intend to follow the implication of
22
[Section 8 of the 1776 Virginia Declaration of Rights]
. . . that the right not to give evidence against oneself
applied merely to the defendant on trial. The Sixth
Amendment, referring explicitly to the accused, protected
him alone. Indeed the Sixth Amendment, with the right of
counsel added, was the equivalent of Virginia’s Section 8
and included all of its rights except that against self-
incrimination. Thus, the location of the self-incrimination
clause in the Fifth Amendment rather than the Sixth
proves that the Senate, like the House, did not intend to
restrict that clause to the criminal defendant only nor
only to his trial. The Fifth Amendment, even with the
self-incrimination clause restricted to criminal cases, still
puts its principles broadly enough to apply to witnesses
and to any phase of the proceedings.
Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see
also Thomas Y. Davies, Farther and Farther from the Original Fifth
Amendment: The Recharacterization of the Right Against Self-
Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L.
Rev. 987, 1009-13 (2003) (“[T]he right against compelled self-
accusation is in the wrong amendment to be a ‘trial right.’”); Michael
J. Zydney Mannheimer, Ripeness of Self-Incrimination Clause
Disputes, 95 J. Crim. L. & Criminology 1261, 1322 (2005) (“It
appears that the placement of the Self-Incrimination Clause in the
Fifth Amendment rather than the Sixth signifies that a ‘criminal case’
can exist before a ‘criminal prosecution[]’ commences.” (alteration
in original)).
In sum, there is nothing to suggest that the Framers were
seeking to confine the right against self-incrimination to trial. The
23
Founders apparently viewed the right more broadly, envisioning it to
apply beyond the trial itself.
The defendants argue that this interpretation of the Fifth
Amendment is impractical because pretrial proceedings are often
used to determine whether evidence is admissible at trial. We
disagree.
For this argument, the defendants contend that courts have held
in other contexts that evidence may be used in pretrial proceedings
even if the evidence would be inadmissible at trial. 6 The defendants
attempt to import this practice into the Fifth Amendment context.
This attempt avoids the question by assuming that the use of
compelled statements in pretrial proceedings is not rendered
inadmissible by the Fifth Amendment. If the Fifth Amendment
applies to pretrial proceedings, the evidence would be considered
inadmissible in pretrial proceedings as well as at trial. As a result,
the defendants’ argument does not help us decide whether the Fifth
Amendment precludes use of compelled statements in pretrial
proceedings.
6
The defendants also observe that the Fifth Amendment does not
apply to physical evidence. Appellees’ Br. at 25. But the defendants
do not tie this observation to their argument for limiting the Fifth
Amendment to a trial right.
24
* * *
Mr. Vogt alleged that his compelled statements had been used
in a probable cause hearing. As a result, we conclude that Mr. Vogt
has adequately pleaded a Fifth Amendment violation consisting of
the use of his statements in a criminal case. 7
IV. We affirm the dismissal of the claims against the individual
police officers and the City of Haysville.
Though we conclude that Mr. Vogt has adequately pleaded the
use of his compelled statements in a criminal case, we affirm the
dismissal of the (1) claims against the four police officers based on
7
The defendants argue that Mr. Vogt
is not entitled to rely upon an inference that his alleged
admissions were “admitted into evidence through witness
testimony.” Aplt. Brief, p. 31. No facts have been pled
regarding the admission of any self-incriminatory
statements into evidence or any witness testimony based
thereon, and such facts cannot be reasonably inferred,
because they are flatly inconsistent with the fact that the
charges against Vogt were dismissed. The only reasonable
inference to be drawn from the fact of dismissal is that
Vogt’s admissions (if any) were not admitted into
evidence by the court.
Appellees’ Br. at 37. We disagree. Mr. Vogt’s complaint states that
the “compelled statements and fruits thereof were used against him in
a criminal case.” Appellant’s App. at 15. At this stage, we can
reasonably infer that these statements were used to support probable
cause.
25
qualified immunity and (2) claims against the City of Haysville based
on its lack of compulsion in Mr. Vogt’s making of a self-
incriminating statement.
A. The four police officers are entitled to qualified
immunity.
We conclude that the four police officers are protected by
qualified immunity.
Qualified immunity would protect the officers from suit in the
absence of factual allegations plausibly showing the violation of a
clearly established constitutional right. Schwartz v. Booker, 702 F.3d
573, 579 (10th Cir. 2012).
We apply this test to the constitutional violation: compulsion
of self-incriminating statements that were ultimately used in a
probable cause hearing. We have already decided that Mr. Vogt’s
right against self-incrimination was violated when his compelled
statements were used in a probable cause hearing in 2014. 8 For the
sake of argument, we will also assume that this right was violated in
2013 and 2014 when Mr. Vogt’s compelled statements were allegedly
used to develop investigatory leads, initiate a criminal investigation,
8
We need not decide whether uses before the probable cause
hearing would have constituted additional violations of the Fifth
Amendment.
26
and bring charges. Thus, we must decide whether Mr. Vogt’s Fifth
Amendment right was clearly established when these violations took
place. In our view, the state of the law was not clearly established
when Mr. Vogt’s compelled statements were allegedly used.
For a constitutional right to be clearly established, “there must
be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found
the law to be as [Mr. Vogt] maintains.” Price-Cornelison v. Brooks,
524 F.3d 1103, 1108 (10th Cir. 2008).
Until today, the applicability of the Fifth Amendment to
pretrial proceedings remained unsettled, for the Supreme Court had
declined to decide “the precise moment when a ‘criminal case’
commences” 9 and we had declined to decide whether the Fifth
Amendment applied to pretrial proceedings. 10 And outside our circuit,
courts had disagreed about the applicability of the Fifth Amendment
9
Chavez v. Martinez, 538 U.S. 760, 766-67 (2003) (plurality
opinion).
10
See Koch v. City of Del City, 660 F.3d 1228, 1245 (10th Cir.
2011) (avoiding this issue by concluding that when the plaintiff was
arrested, “it was not clearly established that an individual has a Fifth
Amendment right to refuse to answer an officer’s questions during a
Terry stop”); Eidson v. Owens, 515 F.3d 1139, 1149 (10th Cir. 2008)
(refraining from defining the scope of the right against self-
incrimination because the plaintiff “never incriminated herself during
a custodial interrogation”).
27
to pretrial proceedings. See Mocek v. Albuquerque, 813 F.3d 912, 929
n.9 (10th Cir. 2015) (“A circuit split will not satisfy the clearly
established prong of qualified immunity.”). Thus, when the police
officers acted, they could not have known that the Fifth Amendment
would be violated by the eventual use of the compelled statement to
develop investigatory leads, initiate a criminal investigation, bring
charges, or support the prosecution in a probable cause hearing. As a
result, the alleged constitutional violation was not clearly
established.
In similar circumstances, the Ninth Circuit Court of Appeals
took a different approach. That court interpreted the Fifth
Amendment to apply in a pretrial hearing to determine whether to
release or detain the defendant. Stoot v. City of Everett, 582 F.3d
910, 925 (9th Cir. 2009). This interpretation required the court to
determine whether a police detective enjoyed qualified immunity
after compelling a statement that was later used in a hearing to
determine release or detention. See id. at 927-28. To decide qualified
immunity, the court considered the underlying purpose of qualified
immunity, which was to prevent deterrence of reasonable officers
trying to carry out their duties. Id. at 927. This purpose led the court
to “focus on [the] officer’s duties, not on other aspects of the
constitutional violation.” Id.
28
Focusing on the officer’s duties, the court declined to permit
qualified immunity because the police detective had been on notice
that coercion of a confession could ripen into a Fifth Amendment
violation. Id. And once the police detective coerced a confession and
turned it over to the prosecutor, the detective’s role in the
constitutional violation was complete. Id. at 927-28. Thus, the Ninth
Circuit did not tarry over whether the detective would have known
which uses would violate the Fifth Amendment; he knew all along
that coercing a confession could lead to a Fifth Amendment
violation. Id. As a result, the Ninth Circuit determined that the
detective was not entitled to qualified immunity. Id.
We respectfully disagree with this approach. The Ninth Circuit
appeared to acknowledge that its test would allow police officers to
incur personal liability for contributing to a constitutional violation
that had not been clearly established. See id. at 913 (“[T]he aspects
of the pertinent law not clearly established at the time of the
confession did not affect [the detective]’s role in bringing about the
violation.”). But qualified immunity protects officers from liability
when the misconduct did not violate a clearly established right. See
pp. 26-27, above.
The four police officers allegedly compelled a statement used
before trial but not in an actual trial. Until now, the precedents had
29
not clearly determined whether these uses would have violated the
Fifth Amendment. Thus, even if the police officers could have
anticipated the eventual use in a probable cause hearing, they could
not have known that this use would violate the Fifth Amendment.
Thus, we reject the approach taken in the Ninth Circuit.
* * *
Because it was not clearly established in 2013 or 2014 that the
pretrial use of Mr. Vogt’s statements would violate the Fifth
Amendment, the four police officers are entitled to qualified
immunity.
B. Mr. Vogt did not adequately allege that Haysville had
compelled the making of a self-incriminating
statement.
As noted, Haysville conditioned its job offer to Mr. Vogt: he
would get the job only if he told the Hays police department that he
had taken the knife. According to Mr. Vogt, this condition compelled
him to make self-incriminating statements to the City of Hays;
Haysville responds that the condition on the job offer was not
coercive. We agree with Haysville, concluding that the condition on
the job offer did not compel Mr. Vogt to make a self-incriminating
statement. Thus, we affirm the dismissal of the claim against
Haysville.
30
The issue stems from the Supreme Court’s opinion in Garrity v.
New Jersey, 385 U.S. 493 (1967). There the Court held that public
employers cannot require their employees to waive the right against
self-incrimination as a condition of continued employment. 385 U.S.
at 497-98, 500. In that case, police officers under investigation faced
discharge if they refused to answer incriminating questions without
immunity from criminal prosecution. Id. at 494, 497. In the Court’s
view, the officers faced a Hobson’s choice amounting to compulsion:
they had to decide between avoiding self-incrimination and losing
their jobs. Id. at 497-98, 500. Because the incriminating answers had
been compelled, they could not be used against the officers in a
subsequent criminal proceeding. Id.
Garrity has been applied outside of the conventional
employment relationship. See, e.g., Lefkowitz v. Turley, 414 U.S. 70,
82-83 (1973) (extending Garrity to public contractors); Spevack v.
Klein, 385 U.S. 511, 514, 516 (1967) (applying the Fifth Amendment
to potential disbarment). Thus, the Fifth Amendment may be
triggered even by the threatened loss of an unsalaried position. For
example, in Lefkowitz v. Cunningham, the Supreme Court invalidated
a state law requiring officers of political parties to either waive their
right against self-incrimination or suffer automatic termination from
office and a five-year disqualification from public office. 431 U.S.
31
801, 802-04 (1977). Though the political officers were unpaid, the
Court held that the law had presented “grave consequences” because
“party offices carry substantial prestige and political influence.” Id.
at 807. The Court also noted the law’s potential economic
consequences, for the claimant would suffer from the loss of
professional standing and the possibility of holding future public
offices. Id. In addition, the Court pointed out that the law was
coercive because it impinged on an individual’s right to participate in
private, voluntary political associations—a key facet of the freedom
guaranteed by the First Amendment. Id. at 807-08.
32
In each of these cases, individuals were threatened with the
loss of some benefit or the infringement of an important right that
they already enjoyed. These individuals already had a job,
government contract, or right that was being threatened upon
exercise of the right against self-incrimination. Our circumstances
are different. Mr. Vogt was never an employee of Haysville, and his
conditional job offer did not threaten the loss of livelihood or an
existing job.
If Mr. Vogt had not wanted to incriminate himself, he could
have declined the job offer and continued working for Hays. With
that alternative freely available, Mr. Vogt was under no compulsion
to comply with Haysville’s condition to its job offer.
Mr. Vogt argues that Haysville threatened his ongoing
employment relationship with Hays by promising to verify his future
disclosure to Hays. According to Mr. Vogt, this threat created an
additional measure of compulsion. But the complaint does not
suggest that Haysville would contact the City of Hays even if Mr.
Vogt had declined the employment offer. In fact, the complaint
alleges that the City of Haysville promised to “follow-up with Hays
to ensure that [Mr. Vogt] had complied with this condition of
employment.” Appellant’s App. at 14 (emphasis added).
33
Because the complaint characterizes the disclosure requirement
as a condition of the job offer, the only reasonable inference is that
Haysville would not verify anything if Mr. Vogt were to decline the
job offer. Thus, Haysville’s promise to follow up with Hays did not
compel Mr. Vogt to make a self-incriminating statement.
* * *
We conclude that the conditional job offer was not coercive.
On this basis, we affirm the dismissal of the claim against Haysville.
V. Mr. Vogt has stated a valid claim against the City of Hays.
Hays urges three additional grounds for dismissal: (1) Mr. Vogt
has not adequately pleaded causation; (2) Hays cannot incur liability
because no one with final policymaking authority violated the
Constitution; and (3) violation of the Fifth Amendment cannot serve
as the basis for a § 1983 claim. 11 We reject these arguments.
A. Mr. Vogt has adequately pleaded causation.
11
Hays also argues that (1) witnesses in criminal proceedings
enjoy absolute immunity from civil liability arising out of their
testimony and (2) individuals testifying at trial do not act under color
of law. But Mr. Vogt does not allege that the defendants acted
unlawfully by testifying during the probable cause hearing. Rather,
Mr. Vogt alleges that Hays unconstitutionally compelled him to
incriminate himself. Though the use of those statements in the
probable cause hearing would complete the alleged Fifth Amendment
violation, the act of testifying does not serve as the basis of Mr.
Vogt’s claims.
34
Hays argues that it did not cause a violation of the Fifth
Amendment. Rather, Hays submits that it merely gave Mr. Vogt’s
compelled statements to the Kansas Bureau of Investigation, pointing
out that Hays did not make the decision to pursue criminal charges or
to use the statements in pretrial proceedings.
Section 1983 imposes liability on a state actor who “causes to
be subjected . . . any citizen . . . to the deprivation of any rights.” 42
U.S.C. § 1983. This language must be read against the backdrop of
tort law, which makes individuals responsible for the natural
consequence of their actions. Martinez v. Carson, 697 F.3d 1252,
1255 (10th Cir. 2012). Thus, causation exists if Hays initiated
actions that it knew or reasonably should have known would cause
others to deprive Mr. Vogt of his right against self-incrimination. Id.
Accordingly, Hays could incur liability even if it had been someone
else who used the compelled statements in a criminal case.
Mr. Vogt alleges in the complaint that Hays compelled self-
incriminating statements, then initiated a criminal investigation that
ended with use of the incriminating statements in a probable cause
hearing. The complaint states that
35
 Mr. Vogt reported information to Hays concerning the
knife,
 the Hays police chief conditioned Mr. Vogt’s continued
employment as a Hays police officer on his documenting
the facts related to possession of the knife,
 Mr. Vogt wrote a vague one-sentence report, and
 a Hays police officer elicited further details about Mr.
Vogt’s possession of the knife.
The complaint adds that the Hays police chief then requested a
criminal investigation of Mr. Vogt and furnished incriminating
statements to investigators, which led to use of the incriminating
statements in a probable cause hearing.
Taking these allegations as true, we conclude that Mr. Vogt
adequately pleaded that Hays had started a chain of events that
resulted in violation of the Fifth Amendment. See Stoot v. Everett,
582 F.3d 910, 926-27 (9th Cir. 2009) (concluding that a police
officer, who allegedly coerced statements, may incur liability under
§ 1983 for violation of the Fifth Amendment when a prosecutor used
those statements in a criminal case); McKinley v. Mansfield, 404 F.3d
418, 436-39 (6th Cir. 2005) (holding that police officers can incur
§ 1983 liability for allegedly coercing a suspect to make self-
incriminating statements even though it was another person, the
prosecutor, who used the statements in a criminal case).
36
B. Mr. Vogt adequately pleaded that the Fifth
Amendment violation had been committed by someone
with final policymaking authority for the City of Hays.
Hays argues that it cannot incur liability for actions by the
Hays police chief because he was not a final policymaker for the
city. We disagree.
Cities cannot incur liability under § 1983 on a respondeat
superior theory, but can be liable if a final policymaker takes
unconstitutional action. See Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 691 (1978); Dill v. City of Edmond, 155
F.3d 1193, 1211 (10th Cir. 1998). “Whether an individual is a final
policymaker for purposes of § 1983 liability ‘is a legal issue to be
determined by the court based on state and local law.’” Dill, 155
F.3d at 1210 (quoting Randle v. City of Aurora, 69 F.3d 441, 447
(10th Cir. 1995)). Mr. Vogt pleaded facts indicating that the Hays
police chief was a final policymaker on the requirements for police
employees.
This inquiry turns on whether the Hays police chief had
authority to establish official policy on discipline of employees
within the police department. See id. at 1211 (stating that whether
the municipal police chief at the time of the alleged violation was “a
final policymaker turns on whether he had the authority to establish
official city policy on employee transfers and discipline within the
37
police department”). To make this determination, we consider
whether the police chief’s decisions were constrained by general
policies enacted by others, whether the decisions were reviewable by
others, and whether the decisions were within the police chief’s
authority. Randle, 69 F.3d at 448.
The complaint alleges that the Hays police chief had final
policymaking authority for the police department. There is nothing in
the complaint to suggest that his decisions were subject to further
review up the chain-of-command.
Hays argues that final policymaking authority rested with the
City Manager and City Commission rather than the Police Chief. For
this argument, Hays points to municipal ordinances stating that the
city commission must hire a city manager, who appoints the police
chief and administers city business. But the city ordinances do not
specify who bears ultimate responsibility for discipline of police
officers like Mr. Vogt.
We addressed a similar situation in Dill v. City of Edmond, 155
F.3d 1193 (10th Cir. 1998). That case involved a due process
violation from a change in a police officer’s position from detective
to patrol officer. 155 F.3d at 1210. There the municipal charter
designated the city manager as the municipality’s administrative
head, who had authority to appoint and remove the police chief and
38
to hire and fire employees. Id. at 1211. Notwithstanding the city
manager’s powers, we concluded that the police chief was a final
policymaker for disciplinary transfers of police officers. We had four
reasons for this conclusion:
1. The city ordinances had not directly stated who was
authorized to determine the policy on transfers and
discipline.
2. Trial testimony had indicated that the transfer was based
on a policy adopted by the police chief.
3. The city manager had testified that he did not involve
himself with transfers.
4. The decision to transfer the plaintiff had fallen within the
authority of the police chief.
Id.
We took a similar approach in Flanagan v. Munger, 890 F.2d
1557 (10th Cir. 1989). There too the issue was whether the municipal
police chief had final policymaking authority for disciplinary
decisions within the police department. 890 F.2d at 1568. In that
case, the municipality admitted that the police chief had final
authority to issue reprimands for its officers—an admission that we
described as effectively disposing of the municipal liability issue. Id.
Notwithstanding this admission, we analyzed the municipality’s
argument that the police chief lacked final policymaking authority
under the municipal code. The municipality pointed out that
39
 the city manager had to manage and supervise all matters
related to the police department, its officers, and
employees,
 the city manager could set aside any action taken by the
police chief and “supersede any department head in the
functions of his position,” and
 “[t]he rules of the Civil Service Commission ...
govern[ed] disciplinary matters relative to uniformed
personnel [e.g., review by City Council] except as
otherwise provided by charter or ordinance.”
Id. (quoting the city’s municipal code) (alterations in original).
We acknowledged that the police chief’s decisions were subject
to review by the city manager and city council. Id. Nonetheless, we
held that the police chief had final policymaking authority for
disciplinary decisions within the police department. Id. at 1568-69.
We had two reasons. First, the municipal code empowered the
police chief to directly manage and supervise the force and made him
“responsible for the discipline, good order and proper conduct of the
Department, [and] the enforcement of all laws, ordinances and
regulations pertaining thereto.” Id. (quoting the city’s municipal
code) (alteration in original). Second, the municipal code did not
create a mandatory or formal review of the police chief’s action. Id.
at 1569. Thus, we concluded that “for all intents and purposes the
[police chief’s] discipline decisions [were] final” and that “any
meaningful administrative review [was] illusory.” Id. at 1569. This
40
conclusion led us to hold that the police chief had final policymaking
authority even under the municipal code. Id.
Under Dill and Flanagan, we conclude that Mr. Vogt has
adequately pleaded final policymaking authority on the part of the
Hays police chief. As in Dill and Flanagan, the city has pointed to
general supervisory responsibilities of the city manager. But there is
nothing in the municipal ordinances suggesting that the city manager
plays a meaningful role in disciplinary decisions within the police
department. The absence of such provisions is fatal at this stage,
where we must view all of the allegations and draw all reasonable
inferences in favor of Mr. Vogt. See Dias v. City and Cty. of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009). As a result, we conclude that
Mr. Vogt has adequately pleaded final policymaking authority on the
part of the Hays police chief.
C. Violation of the Fifth Amendment can serve as the
basis for liability under § 1983.
In a single sentence, Hays contends that “Chavez held there is
no claim for civil liability under the Fifth Amendment and that
claims related to securing compelled/coerced statements required
egregious government action under a substantive due process
analysis.” Appellees’ Br. at 20. Hays does not explain or support this
41
sentence, and it is incorrect. Chavez did not make such a holding.
Thus, Hays’s single sentence does not support the dismissal.
VI. Disposition
We affirm the dismissal of the claims against the City of
Haysville and the four police officers. We reverse the dismissal of
the claim against the City of Hays and remand for further
proceedings consistent with this opinion.
42
15-3266 – Vogt v. City of Hays, et al.
HARTZ, Circuit Judge, concurring:
I join Judge Bacharach’s opinion for the panel. I write separately to emphasize the
limits of what we are saying. We have addressed only issues raised by the parties. Some
of the questions we have not answered are: (1) Even though the Fifth Amendment
privilege against self-incrimination can be violated by use of the defendant’s statements
at a probable-cause hearing, can there be a violation when such use does not cause a
criminal sanction to be imposed on the defendant (such as when, as here, the court does
not find probable cause)? (2) When a person voluntarily discloses information to a
government agency, does he or she thereby waive any Fifth Amendment objection to
disclosing that same information to another government agency? (3) Under what
circumstances can an employee who has given notice of resignation claim that a request
for incriminatory information was coercive? And, most significantly, (4) In light of post-
Garrity developments in Fifth Amendment doctrine, if a public employee believes that he
or she is being coerced by the employer into making self-incriminatory statements, must
the employee invoke the privilege against self-incrimination by refusing to provide
information, or can the employee still, as in Garrity, provide the information and then
demand immunity from use of the information? See Peter Westen, Answer Self-
Incriminating Questions or Be Fired, 37 Am. J. Crim. L. 97 (2010).