Aguilera v. Baca

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH AGUILERA; PHILLIP 
ARELLANO; BENJAMIN BARDON;
GUSTAVO CARRILLO; HECTOR
RAMIREZ,
Plaintiffs-Appellants,
v.
LEROY BACA, individually and as
Sheriff of the County of Los
Angeles; WILLIAM STONICH,
individually and as Under Sheriff
of the Los Angeles County
Sheriff’s Department; LARRY
WALDIE, individually and as No. 05-56617
Assistant Sheriff of the Los
Angeles County Sheriff’s  D.C. No.
CV-03-06328-SVW
Department; WILLIAM MCSWEENEY,
OPINION
individually and as Commander of
the Los Angeles County Sheriff’s
Department; NEIL TYLER,
individually and as Commander of
the Los Angeles County Sheriff’s
Department; THOMAS ANGEL,
individually and as Commander of
the Los Angeles County Sheriff’s
Department; ARTHUR NG,
individually and as Captain of the
Los Angeles County Sheriff’s
Department; ALAN SMITH,
individually and as Lieutenant of

16785
16786 AGUILERA v. BACA
the Los Angeles County Sheriff’s 
Department; MARGARET WAGNER,
individually and as Lieutenant of
the Los Angeles County Sheriff’s
Department; RUSSELL KAGY,
individually and as Sergeant of the
Los Angeles County Sheriff’s
Department; BRIAN PROCTOR, 
individually and as Sergeant of the
Los Angeles County Sheriff’s
Department; LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT; COUNTY OF
LOS ANGELES, a municipal
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
July 10, 2007—Pasadena, California
Filed December 27, 2007
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Chief Judge Kozinski
16790 AGUILERA v. BACA
COUNSEL
Elizabeth J. Gibbons, Encino, California, for the plaintiffs-
appellants.
Paul B. Beach and Jin S. Choi, Glendale, California, for the
defendants-appellees.
OPINION
TALLMAN, Circuit Judge:
Plaintiffs, various Los Angeles County sheriff’s deputies,
appeal an adverse summary judgment in favor of Sheriff
Leroy Baca, the Sheriff’s Department, other supervisory offi-
cers, and internal affairs investigators. The deputies allege
that they were improperly detained at the East Los Angeles
Sheriff’s Station and later punished through involuntary shift
transfers for failing to give non-privileged statements in con-
nection with an internal criminal civil rights investigation of
their possible misconduct while on uniformed patrol duty.
The deputies alleged § 19831 violations of their own Fourth
1
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State . . . , subjects, or causes to
AGUILERA v. BACA 16791
Amendment right to be free from unreasonable seizures, their
Fifth Amendment due process right against compelled self-
incrimination, and their Fourteenth Amendment due process
rights to be free from coercive police questioning and govern-
mental conduct that shocks the conscience. We have jurisdic-
tion under 28 U.S.C. § 1291 and affirm.
I
Shortly after 1:30 a.m. on September 5, 2002, Lieutenant
Abel Moreno, the Watch Commander on duty at the East Los
Angeles Sheriff’s Station, learned that a citizen had been hos-
pitalized with injuries to his head and back due to an alleged
assault with a baton or flashlight without provocation by a
uniformed deputy. The victim, Martin Flores, had been a
bystander at the scene of a narcotics investigation when he
was allegedly assaulted. The deputies were present while a
search warrant was being executed by narcotics officers.
Sheriff’s Department supervisors immediately initiated an
internal affairs investigation into victim Flores’s complaint of
deputy misconduct. Sergeant Burke went to the hospital and
obtained a videotaped statement from complainant Flores.
Burke observed obvious physical injuries suffered by Flores.
Burke then returned to the station, conferred with his superi-
ors, and informed the deputies who had been at the scene of
the search that, at the end of their patrol shift at approximately
6:00 a.m., they should return to the station. They were
instructed not to leave work before speaking to internal affairs
investigators.
Shortly before 6 a.m., Burke and Moreno informed plaintiff
Elizabeth Aguilera that she and the other deputies were now
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
16792 AGUILERA v. BACA
the focus of an internal criminal investigation. The Los Ange-
les County Sheriff’s Department has two separate internal
investigation units: the Internal Affairs Bureau (“IAB”),
which investigates allegations of an administrative nature and
can recommend employee discipline up to and including ter-
mination; and the Internal Criminal Investigation Bureau
(“ICIB”), which only investigates allegations of a criminal
nature for presentation to prosecuting attorneys who can pur-
sue criminal charges against employees.
The deputies, each of whom had served in sworn law
enforcement positions for five to twenty years with the
Department, were familiar with Sheriff’s Department policies
and procedures regarding internal criminal investigations.
Under the Sheriff’s Department’s Manual of Policies and Pro-
cedures, officers have an affirmative duty to cooperate during
such an investigation. A failure to cooperate can subject a
deputy to administrative discipline. The Department’s policies
allowed it to require its employees to remain at work beyond
their normal shift. When this occurs, the Department compen-
sates its personnel at overtime rates. The deputies had
received training on how to manage and process persons sus-
pected of criminal activity.
While the deputies waited at the station to be interviewed,
they were told to remain in the report writing room, the base-
ment roll call briefing room, and then the COPS team office,
all of which were unlocked. While they were waiting, several
supervisors later named as defendants entered the office inter-
mittently to ask if the deputies needed anything to eat or
drink. A drinking fountain was available. No one asked the
deputies to relinquish their weapons or badges. The deputies
were allowed to talk with each other, sleep, make and receive
telephone calls, and travel to the bathroom unescorted.
The deputies were never placed under arrest, searched,
physically restrained, or otherwise touched or subjected to the
use of force. No deputy asked permission to leave the station.
AGUILERA v. BACA 16793
While waiting to be interviewed, the deputies completed over-
time slips. They later received overtime pay or were otherwise
compensated for all time spent at the station after their regular
shift had ended.
At approximately 6:30 a.m., the deputies were called to
Captain Thomas Angel’s office, the Commanding Officer of
the East Los Angeles Station. According to the deputies, Cap-
tain Angel announced, in a harsh, accusatory manner, that he
knew that one of them had used excessive force on Flores,
that the others were covering it up, and that one or more of
them could be criminally prosecuted or fired for doing so.
Captain Angel informed the deputies that the only way to
avoid criminal charges was to “come forward now,” which
they understood to mean to give an immediate and voluntary
statement to the ICIB investigators without any protection
against later use of such statements against them.
At around 11:30 a.m. or noon, Sergeant Russell Kagy of
the ICIB, the lead criminal investigator assigned to the case,
began interviewing each deputy sheriff individually. Kagy
asked each deputy if he or she would provide a statement, and
each declined based on the advice of counsel. No deputy was
asked to waive his or her right against having any statement
used against him or her in a later criminal proceeding, and no
deputy gave either a compelled or voluntary statement at this
time. The deputies were advised by Sergeant Kagy that they
were not yet formally considered suspects, but at this time
they could not be eliminated as suspects either. After each
deputy declined to give a statement, Kagy terminated the
interview, and the deputies were told they were free to leave
the station.
None of the deputies under suspicion could initially be
cleared of wrongdoing, and they were each then reassigned
from their respective street patrol duties to station duties
pending completion of the ongoing investigation into possible
criminal violations of the civil rights of Flores. Each deputy
16794 AGUILERA v. BACA
attests that the reassignment led to personal hardship.2 Captain
Angel asked each deputy to provide a written memorandum
setting forth the specific circumstances of his or her hardship
and how it related to the reassignments, but he did not receive
any memoranda in response to his request. The deputies con-
cede that the Department could change their shifts and assign-
ments at will, and that being transferred to different shifts is
a fairly common practice within the Sheriff’s Department.
In the following two months, Sergeant Kagy conducted a
thorough investigation into the events of September 5, 2002.
Coordinating with prosecutors from the Los Angeles County
District Attorney’s Office and the United States Attorney’s
Office for the Central District of California, Kagy communi-
cated and met with approximately two dozen individuals;
reviewed Department files and audiotapes; and gathered med-
ical records, 911 communication records, and photographs. In
August 2003, Sergeant Kagy submitted the case investigation
report to the District Attorney’s Office for its consideration of
filing criminal charges.
In September 2003, the District Attorney’s Office requested
compelled statements from deputies Aguilera, Ramirez, Car-
rillo and Arellano. During the process of extracting these
compelled statements, none of the deputies were asked to
waive his or her constitutional right against having the state-
ment used against him or her in a criminal proceeding. Within
2
Certain deputies allege that their temporary positions afforded
decreased opportunity for earning overtime. However, according to the
collective bargaining agreement negotiated between the Department and
the deputies’ bargaining representative (the Association for Los Angeles
Deputy Sheriffs), deputies who are being investigated internally are not
necessarily entitled to overtime assignments substantially related to the
matters under inquiry. We read this agreement to mean that deputies being
investigated for unlawfully assaulting a member of the public may not be
entitled to overtime work assignments in the field involving unsupervised
interactions with the public in case the complaint is later sustained by the
results of the internal investigation.
AGUILERA v. BACA 16795
days of providing their compelled statements to the investiga-
tors, the four deputies were cleared by their supervisors and
restored to their pre-investigation duty assignments. Most of
the deputies were reassigned in early October 2003. Deputy
Bardon was not reassigned until December 2003 when the
District Attorney declined to file criminal charges against
him. No federal criminal charges were ever brought.
II
We review a grant of summary judgment de novo. Jones v.
Union Pacific R.R. Co., 968 F.2d 937, 940 (9th Cir. 1992). An
order granting summary judgment will only be affirmed if the
evidence, read in the light most favorable to the non-moving
party, demonstrates the absence of a genuine issue as to any
material fact, and the moving party is entitled to judgment as
a matter of law. Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.
1989).
Also subject to de novo review is the district court’s grant
of qualified immunity. Elder v. Holloway, 510 U.S. 510, 516
(1994). Under Saucier v. Katz, 533 U.S. 194, 201 (2001), we
take a two-step approach in determining whether the defen-
dant supervisors are entitled to qualified immunity. First, we
determine whether the supervisors violated the deputies’ con-
stitutional rights. See id. If we answer in the affirmative, we
proceed to determine whether that right was “clearly estab-
lished” such that “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” See
id. at 201-02. If we determine at the first step that no constitu-
tional violation occurred, the qualified immunity inquiry is at
an end. See id. at 201.
III
[1] The deputies argue that their detention at their duty sta-
tion pending questioning amounted to an impermissible sei-
zure under the Fourth Amendment. We have not, before
16796 AGUILERA v. BACA
today, had occasion to address whether and under what cir-
cumstances a law enforcement officer is seized under the
Fourth Amendment when he is ordered by his supervisor to
remain at a designated location for questioning about the offi-
cer’s possible official misconduct triggering a criminal inves-
tigation. “A seizure of the person within the meaning of the
Fourth and Fourteenth Amendments occurs when, taking into
account all of the circumstances surrounding the encounter,
the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence
and go about his business.” Kaupp v. Texas, 538 U.S. 626,
629 (2003) (internal quotation marks omitted). A seizure
occurs when an individual submits to a show of lawful author-
ity or an application of physical force by a law enforcement
agent. See California v. Hodari D., 499 U.S. 621, 626 (1991).
An encounter between an officer and an individual “will not
trigger Fourth Amendment scrutiny unless it loses its consen-
sual nature.” Florida v. Bostick, 501 U.S. 429, 434 (1991).
[2] The application of the Fourth Amendment to the
employment context presents special issues. While “police-
men, like teachers and lawyers, are not relegated to a watered-
down version of constitutional rights,” Garrity v. New Jersey,
385 U.S. 493, 500 (1967), the Constitution does not afford
public employees greater workplace rights than those enjoyed
by their private sector counterparts. When determining
whether a superior law enforcement officer “seized” a subor-
dinate, we must glean from the circumstances whether the
subordinate’s decision to heed his superior’s order to remain
at a designated location stemmed from a fear, if he tried to
leave, of physical detention, or merely adverse employment
consequences.
We are mindful that, “[o]rdinarily, when people are at work
their freedom to move about has been meaningfully restricted,
not by the actions of law enforcement officials, but by the
workers’ voluntary obligations to their employers.” INS v.
Delgado, 466 U.S. 210, 218 (1984). This is particularly so in
AGUILERA v. BACA 16797
the paramilitary environment of a police agency that is both
a law enforcer and a public employer. Police and sheriff’s
departments must frequently abide by collective bargaining
agreements that govern in great detail the terms and condi-
tions of the workplace. But society has an equally important
interest in ensuring the highest integrity by those entrusted
with discharging the duties of a peace officer.
[3] As a preliminary matter, we hold that a law enforce-
ment agency has the authority as an employer to direct its
officers to remain on duty and to answer questions from
supervisory officers as part of a criminal investigation into the
subordinates’ alleged misconduct. See Driebel v. City of Mil-
waukee, 298 F.3d 622, 638 (7th Cir. 2002); United States v.
Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (per curiam)
(finding no seizure when an on-duty civilian Air Force
employee was ordered to report for an interview with an intel-
ligence officer); United States v. Baird, 851 F.2d 376, 380-82
(D.C. Cir. 1988) (finding no seizure when an on-duty Coast
Guard officer was ordered to report for an interview with an
intelligence officer).3 A law enforcement officer is not seized
3
The dissent chastises us for our “selective reading” of Baird, Muegge,
and Driebel, because in those cases the officers were either specifically
told that their interviews were voluntary, Baird, 851 F.2d at 378, 380, 383;
Muegge, 255 F.3d at 1270, or that they were not suspected of a particular
crime, Driebel, 298 F.3d at 648. Although these statements certainly were
factors that militated in favor of a finding that the officers were not in cus-
tody, they do not, as the dissent suggests, create a bright-line rule that the
employer must unequivocally announce which “hat” (employer or law
enforcement agent) it is wearing. Indeed, the case-by-case, fact specific
inquiry has remained the same for several years and “is simply whether
there is a formal arrest or restraint on movement of the degree associated
with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983)
(internal quotation marks omitted). This is particularly so where the
employer is a law enforcement agency and the employee is a sworn peace
officer specially trained in constitutional rights attending the law of arrest.
We can presume a greater degree of sophistication on that subject by these
deputies than we would presume of the lay civil rights plaintiff encounter-
ing a police investigation for the first time. Further, the existence of a col-
lective bargaining agreement that imposes a specific duty on police
employees to cooperate in internal affairs investigations makes the context
quite different from the run-of-the-mine civil rights case.
16798 AGUILERA v. BACA
for purposes of the Fourth Amendment simply because a
supervisor orders him to remain at work after the termination
of his shift or to come into the station to submit to questioning
about the discharge of his duties as a peace officer. See Drie-
bel, 298 F.3d at 638. In the case at bar, if the deputies had
refused to wait at the station to be questioned regarding the
events of September 5, 2002, or otherwise failed to cooperate
in the criminal investigation, they could have been subject to
administrative discipline including termination. However,
while a law enforcement agency can order its employees to
cooperate in a criminal investigation as a condition of their
continued employment subject to the Constitution, it may not
seize its employees and detain them against their will without
probable cause.4 See id. at 639; Cerrone v. Brown, 246 F.3d
194, 201 (2d Cir. 2001). Nor may compelled statements be
obtained in violation of their constitutional rights against self-
incrimination without the protection afforded by Supreme
Court decisions we discuss below.
[4] The first issue, then, is whether the deputies were seized
without the existence of probable cause. Since the Fourth
Amendment does not protect against the threat of demotions
or job loss, the relevant constitutional inquiry is whether a
reasonable deputy in the position of the plaintiffs would have
feared detention if he had refused to obey the commands of
his superior officers. See United States v. Anderson, 663 F.2d
934, 939 (9th Cir. 1981). Within this context, we must distin-
guish between a department’s actions in its capacity as an
employer and its actions as the law enforcement arm of the
state. See Gardner v. Broderick, 392 U.S. 273 (1968); Gar-
rity, 385 U.S. at 493.
In identifying which circumstances are most salient to our
4
A superior law enforcement officer may briefly stop and question a
subordinate officer consistent with the holding in Terry v. Ohio, 392 U.S.
1 (1968), as any police officer may do when he has a reasonable suspicion
that criminal activity may be afoot.
AGUILERA v. BACA 16799
analysis of whether a seizure took place, we find instructive
the Seventh Circuit’s analysis in Driebel, 298 F.3d at 622.
There, our sister appellate court considered the Fourth
Amendment claims of four police officers who had been
ordered to remain on duty or to accompany detectives to
headquarters and answer questions during the course of an
internal criminal investigation of possible misconduct involv-
ing the acquisition by police officers of unregistered firearms
from nefarious sources. The court determined that two offi-
cers had been seized when detectives surveilled a pickup
point and uniformed officers arrived to retrieve the weapons
hidden in a dumpster. The court determined that two others
had not been seized but merely submitted to conditions of
their employment when ordered to return to the station for
further questioning. See id. at 641.
The Seventh Circuit emphasized the following factors as
critical to its calculus of whether a seizure had taken place:
the experience level of the subordinate officer, see id. at 647;
whether the treatment was consistent with that allowed by
department guidelines or general policy, see id. at 649 n.16;
the occurrence of physical contact or threats of physical
restraint, see id. at 646, 647, 649 & n.16; explicit refusal of
permission to depart, see id. at 649 n.16; isolation of the sub-
ordinate officer, see id. at 643, 649 n.16; permission to use the
restroom without accompaniment, see id. at 648, 649 n.16; the
subordinate officer’s being informed that he was the subject
of a criminal investigation, see id. at 643; whether the subor-
dinate officer was spoken to “in a menacing or threatening
manner,” see id. at 648, 649 n.16; whether the subordinate
officer was under constant surveillance, see id. at 646;
whether superior officers denied a request to contact an attor-
ney or union representative, see id. at 648; the subordinate
officer’s ability to retain law enforcement equipment, includ-
ing weapons and badges, see id. at 643, 648, 649 n.16; the
duration of detention, see id. at 646; and the subordinate offi-
cer’s receipt of overtime pay, see id. at 643.
16800 AGUILERA v. BACA
[5] We adopt the reasoning articulated in Driebel. Applying
these factors to the detention of the deputies in the case at bar,
we hold that they were not seized within the meaning of the
Fourth Amendment. Each deputy had at least five years of
experience and testified to his or her familiarity with the
Department’s policies and state criminal law. The deputies
were well versed through their police academy and on-the-job
training in Department procedures regarding the manner in
which individuals are placed under arrest and the Depart-
ment’s statutory and contractual authority to order officers to
remain at work on overtime. In addition, each deputy
accepted as a condition of his or her employment the official
policy that he or she must cooperate with other members of
the Department conducting an internal criminal investigation.
[6] While the deputies waited to be interviewed, the
Department did not employ standard procedures for detaining
criminal suspects at the station, such as searching them, book-
ing them, and inventorying their possessions. The deputies
must have been aware that, without probable cause, no supe-
rior officer was permitted to use force or any show of author-
ity to prevent them from departing the station if they so chose.
While the deputies obviously understood that any violation of
the order not to leave work might breach administrative rules
and could result in their discipline as employees, we do not
think that prospect is sufficient to classify this situation as a
criminal seizure.
[7] The Department did not create a coercive environment
in which to detain the deputies. The deputies were not trans-
ported to the station against their will. They were not held in
a cell, but rather in unlocked rooms with intermittent supervi-
sion. The Department did not refuse any deputy’s request to
depart (though no one asked to leave). Supervisors repeatedly
asked the deputies if they wanted food or drink and allowed
them to travel to the restroom and water fountain unaccompa-
nied. The deputies were not prevented from phoning their
attorney or union representative for legal or contractual advice
AGUILERA v. BACA 16801
and remained in possession of their Department-issued equip-
ment, including weapons and badges. The deputies were
never touched or threatened with physical restraint. They
were not isolated from one another or prohibited from speak-
ing with one another. After the deputies were questioned and
declined to provide an unprotected statement, they were
immediately allowed to leave the station. All were paid over-
time. In short, the deputies were not treated like criminal sus-
pects, and they should have known—given their training,
years on the force, and familiarity with Department proce-
dures and protocol—that, if they chose to leave the station in
defiance of their supervisors’ orders, they might have been
subject to administrative discipline but could not have been
forcibly detained absent full physical arrest.
[8] Admittedly, some factors militate toward finding that a
seizure took place. In particular, the deputies were informed
that they were under criminal investigation. In addition, Cap-
tain Angel, the highest ranking officer at the station, conveyed
in a “harsh, accusatory tone” his belief that one of the depu-
ties had assaulted Flores, he insinuated that the others were
covering it up, and he further warned that one or more of
them would go to prison and lose their jobs if they were
involved in such behavior. While the message may have been
delivered in a harsh tone of voice to convince his subordinates
that the Captain meant what he said in the hopes of piercing
the “blue shield” of silence he thought he was facing, we are
not prepared to believe that trained deputy sheriffs would
nonetheless have been confused as to their legal and contrac-
tual rights under the circumstances. We believe that a reason-
able deputy in the plaintiffs’ position would have understood
that he was ordered to report and remain at the station until
interviewed by ICIB investigators, and that he would likely
suffer criminal civil rights prosecution and administrative dis-
cipline if the evidence revealed his involvement in the assault
of Flores. However, these facts are not sufficient, in and of
themselves, to transform the deputies’ voluntary accession to
16802 AGUILERA v. BACA
their supervisors’ order to remain at work into a seizure cog-
nizable as an arrest under the Fourth Amendment.
[9] We decline to hold that the deputies were seized by
their supervisors’ orders, which were issued in accordance
with Department policies, to cooperate with a necessary inter-
nal criminal investigation. To hold otherwise would equate to
a pronouncement that a law enforcement agency cannot, even
under negotiated provisions of a labor agreement or the agen-
cy’s general policies to preserve public confidence and the
integrity of its personnel in the discharge of their public safety
responsibilities, order its employees to cooperate in an inves-
tigation of possible officer misconduct by standing by at their
duty station after the end of their watch. We do not intend to,
and will not, act as a super-personnel board to micromanage
the employment actions of law enforcement professionals.
“Law enforcement agencies are entitled to deference, within
reason, in the execution of policies and administrative prac-
tices that are designed to preserve and maintain security, con-
fidentiality, internal order, and esprit de corps among their
employees.” Driebel, 298 F.3d at 648. We affirm the district
court’s grant of summary judgment on the deputies’ Fourth
Amendment claim.
IV
The deputies contend they were deprived of their Fifth
Amendment right (made applicable to the states by the Four-
teenth Amendment) against self-incrimination. The deputies
argue that supervisors violated this right by forcing them to
choose between giving a voluntary, non-immunized statement
that could be used against them in subsequent criminal or
administrative proceedings and retaining their current job
assignments and work shifts. The deputies’ argument is
unavailing.
[10] In a series of cases involving the Fifth Amendment
rights of public employees, the Supreme Court has made clear
AGUILERA v. BACA 16803
that public employees cannot be compelled to chose between
providing unprotected incriminating testimony or losing their
jobs. See Uniformed Sanitation Men Ass’n v. Comm’r of Sani-
tation, 392 U.S. 280 (1968) (holding that the discharge of city
employees for refusing to sign waivers of immunity or for
invoking their privilege against self-incrimination violated the
Fifth Amendment); Gardner, 392 U.S. at 273 (same); Garrity,
385 U.S. at 493 (holding that the state cannot use the incrimi-
natory statement of an employee secured under threat of job
loss in a subsequent criminal proceeding); see also Lefkowitz
v. Cunningham, 431 U.S. 801, 806 (1977) (holding that the
“government cannot penalize assertion of the constitutional
privilege against compelled self-incrimination by imposing
sanctions to compel testimony which has not been immu-
nized”).
[11] The Court was careful, however, to preserve the right
of a public employer to appropriately question an employee
about matters relating to the employee’s possible misconduct
while on duty. In Gardner, the Court noted that the constitu-
tional violation arose not when a public employee was com-
pelled to answer job-related questions, but when that
employee was required to waive his privilege against self-
incrimination while answering his employer’s legitimate job-
related questions. See 392 U.S. at 278. If the officer “had
refused to answer questions specifically, directly, and nar-
rowly relating to the performance of his official duties, with-
out being required to waive his immunity with respect to the
use of his answers or the fruits thereof in a criminal prosecu-
tion of himself, the privilege against self-incrimination would
not have been a bar to his dismissal.” Id. (footnote and cita-
tion omitted); see also Uniformed Sanitation Men, 392 U.S.
at 284; Lefkowitz, 431 U.S. at 806 (“Public employees may
constitutionally be discharged for refusing to answer poten-
tially incriminating questions concerning their official duties
if they have not been required to surrender their constitutional
immunity.”); Chavez v. Martinez, 538 U.S. 760, 768-69 & n.2
(2003) (outlining the scope of public employees’ rights under
16804 AGUILERA v. BACA
the Fifth Amendment self-incrimination clause). “This lan-
guage strongly indicates that forcing a public employee to
answer potentially incriminating job-related questions does
not implicate the Fifth Amendment unless the employee is
also compelled to waive his privilege.” Wiley v. Mayor & City
Council of Baltimore, 48 F.3d 773, 777 (4th Cir. 1995).
[12] We hold that the supervisors did not violate the depu-
ties’ Fifth Amendment rights when they were questioned
about possible misconduct, given that the deputies were not
compelled to answer the investigator’s questions or to waive
their immunity from self-incrimination. Indeed, it appears that
the deputies were never even asked to waive their immunity.5
In these circumstances, it is clear that the deputies’ Fifth
Amendment right against self-incrimination was not impli-
cated by the supervisors’ conduct. See Hill v. Johnson, 160
F.3d 469, 471 (8th Cir. 1998) (holding that “[t]he Fifth
5
Our colleague in dissent maintains that there is a factual dispute as to
whether the officers were compelled to make incriminating statements. If
compelled, on the one hand, the officers automatically would be entitled
to immunity for any incriminating statements they made. Minnesota v.
Murphy, 465 U.S. 420, 434 (1984). If not under compulsion, on the other
hand, then they had the constitutional right to remain silent without fear
of punishment. Lefkowitz, 414 U.S. at 84-85. The factual dispute arises,
the dissent insists, because Captain Angel, “by including the risk of prison
as one of the consequences of not speaking . . . was clearly doing some-
thing other than giving a command to a subordinate.” Dissent at 16813.
However, as the Supreme Court emphasized in Gardner, the Constitu-
tion is offended not when an officer is compelled to answer job-related
questions, but only when the officer is required to waive his privilege
against self incrimination while answering legitimate job-related ques-
tions. 392 U.S. at 278. Although there may have been some initial coer-
cion to cooperate and answer questions, the record does not support a
triable issue of fact as to whether the tandem requirement of compelling
the officers to waive their Fifth Amendment rights was met. Wiley, 48
F.3d at 777 (reasoning that “forcing a public employee to answer poten-
tially incriminating job-related questions does not implicate the Fifth
Amendment unless the employee is also compelled to waive his privilege”)
(emphasis added). Indeed, the deputies were not asked to waive their
immunity. Nor were any statements ever used against them.
AGUILERA v. BACA 16805
Amendment is violated only by the combined risks of both
compelling the employee to answer incriminating questions
and compelling the employee to waive immunity from the use
of those answers”); Wiley, 48 F.3d 773 (holding that officers’
Fifth Amendment rights were not violated given that the offi-
cers had not been asked to waive their privilege against self-
incrimination and the questions posed to them were narrowly
job-related).6 It is of no moment that refusing to answer the
6
The dissent believes that the only constitutionally permissible rule is
one that would require public employers to expressly inform employees
that “any statements they give can’t be used against them in criminal pro-
ceedings” before taking disciplinary action against the employee for refus-
ing to speak. Dissent at 16814. This rule, it retorts, would be “easy as pie”
to administer and no legitimate argument exists against such an approach.
Dissent at 16816. Indeed, the dissent complains, by adopting “the harsh
and unfair rule of the Fifth and Eighth Circuits, [w]e permit[ ] the govern-
ment to punish police officers who refuse to make self-incriminating state-
ments, even though they may not be sure whether or not they have
immunity.” Dissent at 16814.
Despite the facial appeal of the rule that the dissent would like us to
apply with twenty-twenty hindsight, the contours of permissible public
employer conduct have been articulated by the Supreme Court. It is well
established that a police supervisor may not compel a subordinate to waive
his privilege against self- incrimination. Gardner, 392 U.S. at 278. But
this mandate does not, as the dissent suggests, require the adoption of the
dissent’s bright-line rule, adopted by the Second, Seventh, and Federal
Circuits. See Weston v. United States Dep’t. of Housing & Urban Dev.,
724 F.2d 943, 948 (Fed Cir. 1983); Confederation of Police v. Conlisk,
489 F.2d 891, 895 & n.4 (7th Cir. 1973); Uniformed Sanitation Men Ass’n
v. Comm’r of Sanitation of N.Y., 426 F.2d 619, 621, 627 (2d Cir. 1970).
No matter how appealing such a variation on Supreme Court precedent
may be, the rule is not required by Gardner. Significantly, the dissent con-
tinually glosses over critical facts. Although it notes that Miranda warn-
ings have “become part of our national culture,” Dickerson v. United
States, 530 U.S. 428, 443 (2000), this case involves deputies who are
charged with administering Miranda warnings to suspects in the course of
their official duties. These deputies had at least five years experience each,
testified to familiarity with Department policy and criminal law, and were
versed in the Department’s procedures for placing suspects under arrest.
Finally, to impose this bright-line rule, and therefore liability on the super-
visors, would be unnecessarily harsh and in contravention of basic quali-
16806 AGUILERA v. BACA
investigator’s questions could have resulted (and, in fact, did
result) in reassignment: We do not consider re-assignment
from field to desk duty as equivalent to losing one’s job under
Gardner, 392 U.S. at 273.7
[13] The deputies’ Fifth Amendment claim also fails
because the deputies were never charged with a crime, and no
incriminating use of their statements has ever been made. In
Chavez, 538 U.S. at 769 (plurality opinion),8 the Supreme
Court held that “mere coercion does not violate the text of the
Self-Incrimination Clause absent use of the compelled state-
ments in a criminal case against the witness.” Only after a
compelled incriminating statement is used in a criminal pro-
ceeding has an accused suffered the requisite constitutional
injury for purposes of a § 1983 action. See id.; United States
v. Antelope, 395 F.3d 1128, 1140-41 (9th Cir. 2005) (discuss-
ing Chavez and limiting the reach of its holding to the context
fied immunity principles. Gardner does not require, nor is it clearly
established law in our circuit, that a public employer must expressly
inform an employee that his statements regarding actions within the course
and scope of his employment cannot be used against him in a criminal
proceeding before taking administrative action against that employee. See
Saucier, 533 U.S. at 202.
7
The dissent bemoans this dicta statement because the Supreme Court
has rejected the notion that actions short of firing a public employee can-
not form the basis of a viable Fifth Amendment claim. See Rutan v.
Republican Party of Ill., 497 U.S. 62, 76 n.8 (1990) (reasoning that “even
an act as trivial as failing to hold a birthday party for a public employee
. . . when intended to punish her for exercising her [constitutional] rights,”
offends the Constitution) (internal quotation marks omitted). This point is
largely moot because we agree with the district court’s observation that
the supervisors’ actions in this case “w[ere] [not] done to punish [the dep-
uties] for asserting their constitutional rights.” Dissent at 16817.
8
Agreeing on this holding were Chief Justice Rehnquist and Justices
Thomas, O’Connor, Scalia, Souter, and Breyer. See id. at 763, 773 (Op.
of Thomas, J., joined by Rehnquist, C.J., and O’Connor and Scalia, J.J.);
id. at 777-79 (Op. of Souter, J., joined by Breyer, J.). See McKinley v. City
of Mansfield, 404 F.3d 418, 431 n.12 (6th Cir. 2005).
AGUILERA v. BACA 16807
of § 1983 actions); see also Lingler v. Fechko, 312 F.3d 237,
240 (6th Cir. 2002) (holding that a police officer’s Fifth
Amendment right was not violated because he had not been
compelled to waive his privilege against self-incrimination
and his statements were never used against him in subsequent
criminal proceedings).9 We affirm the district court’s grant of
summary judgment on this claim.
V
[14] The deputies argue that the district court erred in con-
cluding that the supervisors’ conduct did not violate the depu-
ties’ Fourteenth Amendment substantive due process rights.
In our view, the Sheriff’s Department had a legitimate need
to determine whether an officer or officers had engaged in
criminal behavior under color of office and, until that criminal
investigation was resolved, it had a duty to protect the public
from the potential for further assaults by the unknown deputy
potentially responsible by reassigning all of those involved in
the incident to station duty. Even assuming that the deputies
were assigned to less favorable shifts and given “degrading”
employment positions, we agree with the district court that the
reassignment did not transform the questioning into a coercive
police investigation under Cooper v. Dupnik, 963 F.2d 1220(9th Cir. 1992). We also agree that a reassignment, even as
punishment for failure to make a voluntary statement, does
not “shock[ ] the conscience” or run counter to the “decencies
of civilized conduct” under Rochin v. California, 342 U.S.
165 (1952). We affirm the grant of summary judgment on
these claims.
9
The dissent makes too much of our citation to Chavez v. Martinez, 538
U.S. at 760. Plainly, 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. Here, we rely on the rule in Chavez primarily for the
proposition that since no statement was ever used against the deputies,
there is no cognizable Fifth Amendment claim.
16808 AGUILERA v. BACA
VI
[15] The district court disregarded police reports of Ser-
geant Kagy’s internal investigation, which documented the
allegations against the deputies, on the basis that they consti-
tuted inadmissible hearsay and were not sufficiently reliable
to qualify for the business records exception. See Fed. R.
Evid. 803(6). The deputies contend on appeal that they
offered the reports for the non-hearsay purpose of proving the
supervisors’ knowledge of exculpatory facts clearing the dep-
uties of the alleged misconduct on a date much earlier than
that on which their former field duties were restored. How-
ever, even if the district court erred in failing to consider the
reports, we find any error harmless since, even considering
the information in the reports, the deputies’ Fifth Amendment
and Fourteenth Amendment claims fail as a matter of law.
VII
Because we find that the supervisors did not violate the
deputies’ Fourth, Fifth, or Fourteenth Amendment rights, we
affirm the district court’s grant of summary judgment in favor
of all defendants. Since no violation of any constitutional
right occurred, we need not reach the claim against the
County under Monell v. Department of Social Services, 436
U.S. 658 (1978). It too was properly dismissed.
AFFIRMED.
KOZINSKI, Chief Judge, dissenting for the most part:
When a law enforcement agency suspects one of its
employees of criminal wrongdoing, their relationship
becomes a strained and complex one. The employer, of
course, retains all powers over the employee qua employer—
it may ask him to work overtime, complete reports, answer
AGUILERA v. BACA 16809
the questions of supervisors and generally comply with the
terms of the employment relationship. In addition, however,
the employer is also in the business of detecting and prosecut-
ing criminal activity, so the employer can—and generally has
the duty to—gather evidence that may be used to prosecute
the employee and others.
Whether the employer is wearing one hat or the other (or
both) is often unclear, which can put the employee in a pre-
carious situation by forcing him to choose between disobey-
ing an order from his employer and giving up the
constitutional privilege against self-incrimination. In such sit-
uations, the employer must not play on this ambiguity to the
disadvantage of the employee; rather, it must clarify whether
it is questioning the employee in its capacity as an employer
or as a law enforcer. Where the employer fails to do this, the
employee is entitled to act on the assumption that he is deal-
ing with a law enforcement agency, if a reasonable person in
his position would have so believed. Plaintiffs here easily
meet this standard, and so they are entitled to bring their case
before a jury; this is precisely the kind of conflict that a group
of citizens drawn from the community is in the best position
to resolve.
1. Arrest Without Probable Cause
Plaintiffs here presented a triable issue of fact on their
claim that they were arrested without probable cause because
a jury could find, on the evidence presented, that reasonable
people in plaintiffs’ position would have believed they were
placed under arrest and not merely asked to work overtime.
As the majority admits with commendable candor, there is
evidence that “militate[s] toward finding that a seizure took
place.” Maj. op. at 16801. After all, plaintiffs were told they
were under criminal investigation, and they were interviewed
by the Internal Criminal Investigation Bureau (ICIB), which
investigates only criminal allegations against employees. Id.
at 16792. Moreover, plaintiffs’ superior, Captain Angel,
16810 AGUILERA v. BACA
speaking in a “harsh, accusatory manner,” told them that he
knew one of them had used excessive force on Flores, that the
others were covering up and that one or more of them would
go to prison and lose their jobs unless they gave statements.
Id. at 16793.
The majority relies on three cases in support of its finding
that plaintiffs were not detained, but cites them only selec-
tively. Id. at 16797. United States v. Baird, 851 F.2d 376(D.C. Cir. 1988), found no seizure because the Coast Guard
officer there was told that the interview was “voluntary” and
that he “was free to go whenever he wanted to.” Id. at 378;
see id. at 380, 383. United States v. Muegge, 225 F.3d 1267(11th Cir. 2000) (per curiam), found no seizure because the
public employee “was told he was free to leave at any time
and did not have to answer any questions.” Id. at 1270. Drie-
bel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002), turned
on the fact that the police officer there “was never informed
that he was the suspect for any particular crime, nor was he
spoken to in a menacing or threatening manner.” Id. at 648.
Our case is materially different from Baird, Muegge and
Driebel. Plaintiffs weren’t told they were free to leave, and
they weren’t told they didn’t have to answer questions. Cf.
Muegge, 225 F.3d at 1270; Baird, 851 F.2d at 378. Instead,
plaintiffs were told they were suspects in a criminal investiga-
tion, and their superior spoke to them in a harsh, accusatory
tone and threatened criminal sanctions. Cf. Driebel, 298 F.3d
at 648. A seizure may be effected solely by “the use of lan-
guage or tone of voice indicating that compliance with the
officer’s request would be compelled.” Martinez v. Nygaard,
831 F.2d 822, 826 (9th Cir. 1987). Given the context, plain-
tiffs could reasonably have believed that they had to stay at
the police station on pains of arrest. At least, a reasonable jury
could so find.
I don’t share the majority’s worry that letting this case go
to trial would undermine the employer’s authority to insist
AGUILERA v. BACA 16811
that employees remain on duty past their shifts to answer
questions. See maj. op. at 16802. An employer can exercise
that right without difficulty if he makes it clear that the
employees are not under arrest and he avoids the kind of
accusations Captain Angel hurled at plaintiffs here. But where
the employer brings in criminal investigators, yells at the
employees, accuses them of crimes, threatens them with crim-
inal punishment and does not make it clear that they’re not
under arrest, a reasonable jury could find that the employees
were seized.
If plaintiffs were arrested, the seizure was unconstitutional
because the police had no probable cause. Dunaway v. New
York, 442 U.S. 200, 216 (1979). Flores never identified the
officer who hit him. Instead, he claimed to have been hit by
a male deputy who was possibly Hispanic, but all of the offi-
cers in the area were Hispanic and all but one were male. That
one member of a group may have committed a crime doesn’t
establish probable cause to arrest everyone in that group.
United States v. Brown, 951 F.2d 999, 1003 (9th Cir. 1991).
Nor were defendants entitled to qualified immunity because
the law on unconstitutional seizures was “clearly established”
at the time of the incident. Saucier v. Katz, 533 U.S. 194, 202
(2001). No reasonable officer would have believed that he
could arrest plaintiffs based on the evidence available. If a
jury determines that plaintiffs were in fact arrested when they
were detained at the police station, they would be entitled to
damages—if only nominal ones—for the harm they suffered
as a result of the unlawful arrest. I would therefore reverse the
district court’s grant of summary judgment for defendants on
plaintiffs’ Fourth Amendment claims and remand for trial on
the issue.
2. Retaliation
Plaintiffs claim that defendants retaliated against them for
failing to provide statements about the Flores incident for
16812 AGUILERA v. BACA
about a year—until defendants explicitly ordered them to pro-
vide such statements. According to plaintiffs, only at that
point could they be sure that their statements could not be
used against them in criminal proceedings and so they reason-
ably remained silent to preserve their constitutional privilege
against self-incrimination. If defendants had really wanted
those statements, they could easily have ordered plaintiffs to
provide them at any time following the incident, and thereby
have removed all doubt as to whether the statements could be
used to prosecute plaintiffs. Instead, defendants played cat
and mouse with plaintiffs for 12 months, forcing plaintiffs to
guess whether any statements they gave could be used to
prosecute them. In other words, defendants put economic
pressure on plaintiffs to give up their Fifth Amendment rights
—or so a jury could reasonably find on this record. I would
therefore remand on this issue as well, and allow it to go to
trial.
My disagreement with the majority proceeds along four
lines:
a. First, I believe there is genuine doubt as to whether
plaintiffs were under compulsion to give a statement, and thus
whether any statements they gave could have been used to
prosecute them. Certainly, there was no express order. The
closest we have is Captain Angel’s statement on the morning
following the incident, where he spoke to plaintiffs in a harsh,
accusatory manner and told them that they could go to prison
or lose their jobs if they did not give statements. But it’s not
clear that this was an order; it might have been a prediction
or a threat. Or, Captain Angel might have been using a variant
of the Prisoner’s Dilemma by suggesting that each of the offi-
cers try to save his own skin by pointing the finger at one or
more of the others.
Significantly, Captain Angel mentioned that plaintiffs
could go to prison if they did not make statements; disobeying
an employer’s order can result only in job discipline, never
AGUILERA v. BACA 16813
criminal punishment. By including the risk of prison as one
of the consequences of not speaking, Captain Angel was
clearly doing something other than giving a command to a
subordinate. Had some of the plaintiffs given statements, and
had they been used against them in criminal proceedings, the
prosecution would doubtless have claimed that plaintiffs
waived their privilege against self-incrimination because Cap-
tain Angel’s statement was not a command. I can’t say for
sure that such an argument would have failed.
Whether a person faces compulsion is a question of fact,
see United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976),
and plaintiffs have raised a genuine dispute as to whether they
were under compulsion to give statements. A jury might well
look at the situation—including the fact that defendants could
have removed all doubt on the subject by giving plaintiffs a
direct order—and conclude that plaintiffs were not under
compulsion.
This factual dispute is material because, whether plaintiffs
faced government compulsion determines whether they had
immunity, which in turn determines whether they could be
punished for refusing to make self-incriminating statements.
Public employees automatically have immunity when they are
compelled to make self-incriminating statements during crim-
inal investigations related to their official duties. See Minne-
sota v. Murphy, 465 U.S. 420, 434 (1984); Uniformed
Sanitation Men Ass’n v. Comm’r of Sanitation of N.Y., 392
U.S. 280, 284 (1968); Gardner v. Broderick, 392 U.S. 273,
278 (1968); Garrity v. New Jersey, 385 U.S. 493, 500 (1967).
When a public employee is ordered to speak, his statements
can’t be used against him in a criminal proceeding, and he can
therefore be subjected to adverse employment consequences
for refusing to speak. See Gardner, 392 U.S. at 276, 278. But
if plaintiffs weren’t compelled to make self-incriminating
statements, they didn’t automatically have immunity. And, if
they had no immunity, they were constitutionally entitled to
remain silent. Reasonable jurors could find that plaintiffs
16814 AGUILERA v. BACA
didn’t have immunity, thus making it unconstitutional for
defendants to punish them for refusing to make self-
incriminating statements. See Lefkowitz v. Turley, 414 U.S.
70, 84-85 (1973); Uniformed Sanitation Men, 392 U.S. at
283; Gardner, 392 U.S. at 276, 278.
b. Second, I would hold that if the government doesn’t
expressly inform public employees that any statements they
give can’t be used against them in criminal proceedings, it
may not punish them for refusing to speak. This strikes me as
the only constitutionally permissible rule. It is also the only
just rule, and police officers are entitled to be treated justly
and with dignity, no less than anyone else. The majority,
instead, adopts the harsh and unfair rule of the Fifth and
Eighth Circuits by permitting the government to punish police
officers who refuse to make self-incriminating statements,
even though they may not be sure whether or not they have
immunity. See Hill v. Johnson, 160 F.3d 469, 471 (8th Cir.
1998); Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th Cir.
1982).
The Second, Seventh and Federal Circuits have the better
approach: The government must tell public employees that
they have immunity before it can constitutionally punish them
for refusing to make self-incriminating statements. See Wes-
ton v. U.S. Dep’t of Hous. & Urban Dev., 724 F.2d 943, 948
(Fed. Cir. 1983); Confederation of Police v. Conlisk, 489 F.2d
891, 895 & n.4 (7th Cir. 1973); Uniformed Sanitation Men
Ass’n v. Comm’r of Sanitation of N.Y., 426 F.2d 619, 621,
627 (2d Cir. 1970) (Friendly, J.).1 It’s common knowledge
that the Fifth Amendment protects the privilege against self-
1
State courts—including California where these events took place—
have also adopted this position. See, e.g., Eshelman v. Blubaum, 114 Ariz.
376, 378-79 (Ct. App. 1977); Lybarger v. City of L.A., 40 Cal. 3d 822, 829
(1985); Gandy v. State ex rel. Div. of Investigation & Narcotics, 96 Nev.
281, 284 (1980); City of Warrensville Heights v. Jennings, 58 Ohio St. 3d
206, 209-10 (1991).
AGUILERA v. BACA 16815
incrimination, as this is explained in the Miranda warning
which has “become part of our national culture.” Dickerson
v. United States, 530 U.S. 428, 443 (2000). A public
employee under criminal investigation should be able to rely
on the privilege against self-incrimination, as plaintiffs did
here, until he is told in clear terms that the statements can’t
be used to prosecute him.
We treat immunity as a substitute for the Fifth Amendment
privilege against self-incrimination because immunity “leaves
the witness and the [government] in substantially the same
position as if the witness had claimed his privilege.” Kastigar
v. United States, 406 U.S. 441, 458-59 (1972) (quoting Mur-
phy v. Waterfront Comm’n, 378 U.S. 52, 79 (1964)). Usually,
the government needs to affirmatively grant immunity, see id.
at 459, which concurrently informs the witness that he has
immunity. The same is not true where the immunity kicks in
automatically, such as when a government employee is
ordered to give a statement during the course of a criminal
investigation. The employee may, first of all, have doubts as
to whether or not he has been ordered to give the statement.
This case amply demonstrates this ambiguity and there are
numerous other fact patterns where it would not be clear
whether the employee has been ordered to speak. I see no jus-
tification for forcing the employee to guess whether or not
he’s been given an order and, hence, whether he has immu-
nity. See pp. 16812-14 supra.
But even when it is clear that the employee has been given
an order, the employee may not know that this gives him
automatic immunity. Automatic immunity only leaves a pub-
lic employee “in substantially the same position as if the
[employee] had claimed his privilege,” Kastigar, 406 U.S. at
458-59, when the employee knows without a doubt that he has
immunity. See Hill, 160 F.3d at 472-73 (Heaney, J., dissent-
ing); Kalkines v. United States, 473 F.2d 1391, 1395 (Ct. Cl.
1973). After all, “[t]he logic underlying Gardner is that an
officer under investigation is not required to speculate as to
16816 AGUILERA v. BACA
what his constitutional rights are.” Lybarger v. City of L.A.,
40 Cal. 3d 822, 834 (1985) (Bird, C.J., concurring). A person
who doesn’t know he has immunity, like the plaintiffs here,
see maj. op. at 16793, would justifiably believe that “any
statement he [makes] may be used . . . against him.” Miranda
v. Arizona, 384 U.S. 436, 444 (1966).
We can’t expect public employees who are pressured to
give a statement to know that they have immunity. I, for
example, had no idea, even though I have been a government
employee involved in law-related activities for almost three
decades. The employer is in complete control of these situa-
tions, and it would be easy as pie for supervisors to inform
employees that they have been ordered to speak and therefore
have immunity. I can see no legitimate argument against this
simple and easily administered rule, which would avoid the
kind of mess we have here.
c. Third, the majority’s reliance on Chavez v. Martinez, 538
U.S. 760 (2003), see maj. op. at 16806-07, is misplaced
because Chavez only applies where a party actually makes
self-incriminating statements. In Chavez, the Supreme Court
held that there is no Fifth Amendment violation when some-
one makes a self incriminating statement but that statement is
never used against him. Chavez, 538 U.S. at 769 (plurality
opinion); id. at 777-79 (Souter, J., concurring in the judg-
ment). The majority tries to import the Chavez rule—a Fifth
Amendment violation can only occur when a self-
incriminating statement is used against someone—into cases,
like this one, where there are no self-incriminating statements.
But Chavez itself rejected this. The Court there explicitly
stated that the government couldn’t “penalize public employ-
ees . . . to induce them to waive their immunity.” Id. at 768
n.2 (plurality opinion). So, under Chavez, the Fifth Amend-
ment would be violated if a public employee were fired for
refusing to make self-incriminating statements, even though
no self-incriminating statement could ever have been used
against the employee.
AGUILERA v. BACA 16817
d. Fourth, contrary to Supreme Court precedent, the major-
ity would only find unconstitutional retaliation for actions
taken against public employees that are the “equivalent to los-
ing one’s job.” Maj. op. at 16806. The Court has rejected the
argument that “only those employment decisions that are the
substantial equivalent of a dismissal violate a public employ-
ee’s [constitutional rights].” Rutan v. Republican Party of Ill.,
497 U.S. 62, 75 (1990) (internal quotation marks omitted).
Here, plaintiffs allege that they were reassigned to less presti-
gious desk jobs and that they were denied promotions because
they refused to make self-incriminating statements. If this was
done to punish them for asserting their constitutional rights,
it would be unconstitutional, as “even an act of retaliation as
trivial as failing to hold a birthday party for a public employee
. . . when intended to punish her for exercising her [constitu-
tional] rights,” violates the Constitution. Id. at 76 n.8 (internal
quotation marks omitted).
Defendants are not entitled to qualified immunity on plain-
tiffs’ Fifth Amendment claims, because it was “clearly estab-
lished,” Saucier, 533 U.S. at 202, that plaintiffs couldn’t be
retaliated against for refusing to make self-incriminating
statements if they didn’t have immunity. See Murphy, 465
U.S. at 429, 436 n.7; Gardner, 392 U.S. at 276, 278. Plaintiffs
could thus also proceed with their conspiracy claims against
the individual defendants. Additionally, municipalities aren’t
protected by qualified immunity, see Owen v. City of Inde-
pendence, 445 U.S. 622, 650 (1980), so plaintiffs should like-
wise be entitled to proceed with their Monell v. Department
of Social Services of New York, 436 U.S. 658 (1978), claims
against the County and Sheriff’s Department. I would there-
fore reverse the district court’s grant of summary judgment
for defendants on plaintiffs’ retaliation claims and remand for
trial on these issues as well.2
2
Because I would hold that plaintiffs could establish a Fifth Amendment
violation, the district court’s exclusion of Sergeant Kagy’s ICIB report
16818 AGUILERA v. BACA
* * *
I dissent from Parts III, IV, VI and VII. I join Part V
because defendants didn’t violate plaintiffs’ substantive due
process rights.
wasn’t harmless error. Rather, the district court abused its discretion in
excluding the report because plaintiffs offered it for the non-hearsay pur-
pose of proving the police department knew that plaintiffs hadn’t harmed
Flores months before plaintiffs were returned to their pre-investigatory
duty assignments. See Standard Oil Co. of Cal. v. Moore, 251 F.2d 188,
217 n.36 (9th Cir. 1958).