Adrian Miranda v. City of Casa Grande

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN MIRANDA, an individual, No. 20-16905
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-04618-
JJT-JZB
CITY OF CASA GRANDE, a
municipality; RICHARD RUSH, in his
individual capacity as an Officer of OPINION
the Casa Grande Police Department,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted June 15, 2021
San Francisco, California
Filed October 19, 2021
Before: Sidney R. Thomas, Chief Judge, and Daniel A.
Bress and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bress
2 MIRANDA V. CITY OF CASA GRANDE
SUMMARY *
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of defendants in an action brought
pursuant to 42 U.S.C. § 1983 alleging that a City of Casa
Grande police officer lied during an Arizona state
administrative proceeding concerning the suspension of
plaintiff’s driver’s license.
The panel first noted that there is no express
constitutional guarantee or other federal right to a driver’s
license, so that its deprivation does not violate substantive
due process. Plaintiff’s claim therefore sounded, if at all, in
procedural due process. The panel held that plaintiff failed
to demonstrate a procedural due process violation because,
even assuming the officer testified falsely at the
administrative hearing as to whether plaintiff consented to a
blood test following his arrest for driving under the
influence, Arizona provided sufficient post-deprivation
process to plaintiff. The panel noted that, following the
discovery of the officer’s alleged unauthorized conduct,
plaintiff was granted a second administrative hearing before
a new ALJ, who ultimately voided the suspension and
reinstated plaintiff’s license. Additionally, Arizona also
allowed plaintiff to bring a state law claim, which he was
pursuing in Arizona state court. The panel held that the post-
deprivation procedures were both meaningful and sufficient
under the Due Process Clause.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MIRANDA V. CITY OF CASA GRANDE 3
COUNSEL
Joel B. Robbins (argued), Robbins & Curtin PLLC, Phoenix,
Arizona, for Plaintiff-Appellant.
Larry J. Crown (argued) and Elan S. Mizrahi, Titus
Brueckner & Levine PLC, Scottsdale, Arizona, for
Defendants-Appellees.
OPINION
BRESS, Circuit Judge:
The question in this case is whether the plaintiff can
pursue a claim under 42 U.S.C. § 1983 for a police officer
allegedly lying during an Arizona state administrative
proceeding concerning the suspension of the plaintiff’s
driver’s license. The answer, we hold, is no. Even assuming
the officer testified falsely, Arizona provided sufficient post-
deprivation process to the plaintiff. That is enough to
foreclose the plaintiff’s procedural due process theory, and
thus, his § 1983 claim.
I
A
On July 6, 2017, Adrian Miranda went out bowling with
two neighbors, his 14-year-old daughter, and his 17-year-old
son Adrian Matthew Miranda (whom the parties refer to as
Matthew). Over the course of the night, Miranda drank at
least six beers. Miranda was by that point significantly
intoxicated, so Matthew drove the group home in Miranda’s
truck. During the ride, Miranda and his son began to argue.
The argument intensified until Matthew stopped the truck in
4 MIRANDA V. CITY OF CASA GRANDE
a vehicle lane of traffic several blocks from the family’s
home. Neighbors heard the commotion and called 911.
Officers Richard Rush and John Campa of the Casa
Grande, Arizona Police Department responded to the scene.
When they arrived, the truck was still in the vehicle lane of
traffic and Miranda was now in the driver’s seat. The parties
dispute whether the truck was running, whether Miranda had
the keys, whether the truck’s alarm was going off, and
whether the emergency blinkers were flashing.
The officers ordered Miranda out of the truck, but he did
not comply. They repeated the command over a loudspeaker
for several minutes until Miranda finally exited the vehicle.
Miranda emerged with bloodshot eyes, stumbling and
swaying, smelling of alcohol, and slurring his speech.
Officer Rush’s police report described Miranda’s behavior
that evening as “extremely uncooperative” and
“belligerent.”
Officer Rush arrested Miranda for failure to comply with
law enforcement and had him brought to the Casa Grande
police station. At the station, Miranda admitted to having
consumed six beers and he performed poorly in response to
a field sobriety test. He also submitted to a portable breath
test, which revealed a blood alcohol content of 0.137%.
Miranda was placed under arrest for driving under the
influence (DUI).
Under Arizona’s “implied consent” law, “[a] person who
operates a motor vehicle in this state gives consent . . . to a
test or tests of the person’s blood,” if arrested on suspicion
of a DUI. A.R.S. § 28-1321(A). This applies if “the person
was driving or in actual physical control of a motor vehicle
while under the influence of intoxicating liquor or drugs.”
Id.
MIRANDA V. CITY OF CASA GRANDE 5
Once arrested, the violator “shall be requested” to submit
to a blood test, and, if he refuses, he “shall be informed that
[his] license or permit to drive will be suspended or denied
for twelve months, . . . unless the violator expressly agrees
to submit to and successfully completes the test or tests.” Id.
§ 28-1321(B). “A failure to expressly agree to the test or
successfully complete the test is deemed a refusal.” Id. At
that point, officers generally need a search warrant before
they can continue with the blood test. Id. § 28-1321(D)(1).
Officer Rush read to Miranda from a standardized
Arizona Department of Transportation “implied consent
affidavit” designed to confirm whether an individual is
consenting to required tests. The first paragraph of the
affidavit asks, “Will you consent to a test or tests of your
blood, breath, urine or other bodily substance for the purpose
of determining your alcohol concentration or drug content?”
Officer Rush read this question verbatim and Miranda
responded, “No, I will not.”
Following the next prompt on the form, Officer Rush
then advised Miranda: “If you do not expressly agree to
testing or do not successfully complete the tests, your
Arizona driving privileges will be suspended for
12 months. . . . Will you consent to the tests?” Miranda
refused again. Officer Rush then read Miranda one last
warning from the form affidavit: “You are not entitled to
further delay before taking the tests. Any additional delay
will be considered a refusal to submit to the tests. Will you
consent to the tests?” For the third time, Miranda refused.
Miranda then asked to make a phone call. The officers,
unsure if Miranda was requesting a lawyer, allowed him to
use a phone. But instead of calling a lawyer, Miranda called
his superior at the United States Customs & Border Patrol
(CBP), where Miranda worked as a CBP Officer. Miranda
6 MIRANDA V. CITY OF CASA GRANDE
told his supervisor that he was intoxicated at the police
station and needed to be picked up. After the call, Miranda
fell asleep.
Meanwhile, Officers Rush and Campa had begun
preparing a search warrant for Miranda’s blood draw.
During this time, another officer, Officer McKinney, was
sitting with Miranda. Video recordings from inside the
police station recorded the following exchanges. While they
were in the room together, Miranda stated to McKinney,
“Can you let them know I’m doing the blood work?” Officer
McKinney then found Officer Rush, who had not yet secured
the search warrant. McKinney said to Rush, “He says he’s
doing bloodwork.” Rush asked, “He said he’s doing
bloodwork?” McKinney replied, “Yes.” Rush responded,
“Oh, no shit.” “Yep,” said McKinney.
After this exchange, Officer Rush still obtained a
telephonic search warrant from a judge on the Casa Grande
Justice Court. Rush returned to the room and told Miranda:
“So, you refused the blood draw, so your license is
suspended for one year from this day forward.” Eventually,
with the assistance of a phlebotomist (and after some
resistance from Miranda), Miranda’s blood draw was
completed. The test revealed a blood alcohol concentration
above the legal limit for driving or physically controlling a
motor vehicle in Arizona.
Miranda was charged with a DUI and various other
crimes. CBP limited Miranda’s duties for a time, both
because of Miranda engaging in “conduct unbecoming an
officer and misuse of his position” and because Miranda,
now lacking a valid driver’s license, no longer met a
condition of employment. Among other things, CBP
suspended Miranda’s enforcement authority, ordered him to
turn in his firearm and badge, and limited his building access
MIRANDA V. CITY OF CASA GRANDE 7
“only to those areas necessary to perform administrative
duties.” Miranda’s pay was reduced, and he allegedly
suffered anxiety, shame, and humiliation.
Miranda later pleaded guilty to disorderly conduct and
failure to comply with law enforcement in exchange for
dismissal of the DUI. His other charges were also ultimately
dismissed.
B
Arizona law afforded Miranda the opportunity to contest
his driver’s license suspension in a hearing before a state
administrative law judge (ALJ) in the Arizona Department
of Transportation. See A.R.S. §§ 28-1321(G)–(K); Ariz.
Admin. Code § 17-1-502; see generally Tornabene v.
Bonine ex rel. Arizona Highway Dep’t, 54 P.3d 355, 360–61
(Ariz. Ct. App. 2002). A timely request for a hearing stays
the driver’s license suspension until the hearing is held.
A.R.S. § 28-1321(J).
Miranda sought such a hearing, which took place on
September 12, 2017. Miranda, represented by counsel,
testified that he had no memory of the evening. Miranda at
this point did not know he had expressed a willingness to
allow a blood draw, nor was he aware of the conversation
between Officers McKinney and Rush. At the hearing,
Miranda’s son, daughter, and stepson testified on his behalf.
Officer Rush also testified. The ALJ asked Rush, “At any
point before the service of the warrant did the petitioner
change his mind and tell you that he would take the test?”
Rush responded, “No, ma’am.”
The ALJ found Rush “sufficiently credible” in his
testimony. The ALJ also found that Miranda declined to
submit to the blood test and that he did not change his mind
8 MIRANDA V. CITY OF CASA GRANDE
before service of the warrant. The ALJ suspended Miranda’s
license for twelve months, effective October 12, 2017.
Some time later, CBP obtained the Casa Grande Police
Department surveillance videos, seemingly as part of
assessing Miranda’s employee discipline for the night in
question. Miranda was at that point made aware of the
videos. After seeing that he had expressed to McKinney his
willingness to undergo a blood draw, Miranda sought a
second administrative hearing. This hearing took place on
July 12, 2018, before a different ALJ. Counsel once again
represented Miranda at the second hearing.
Officer Rush testified again, too. When questioned
about the videotaped exchange with Officer McKinney,
Rush said, “[i]t’s not a recant” because Miranda “didn’t
expressly agree to do the test.” Rush “d[idn’t] know what
. . . Miranda meant when he said, ‘He would do the
bloodwork.’” Rush elaborated: “[T]hat means nothing to
me. He is not expressively saying that he will take the blood
test. I’ve done tons of DUI’s—this is what I do. . . . [H]e
adamantly denied and said that he did not want to take the
test over and over again.”
The second ALJ also determined that Miranda had
initially refused to consent to the blood test. But this time,
the ALJ found that Officer McKinney’s statements were “a
clear advisement” that Miranda had recanted his refusal
before Officer Rush obtained the search warrant. Although
the ALJ did not determine that Rush had testified falsely
during the first administrative hearing, she found that
Miranda had in the end voluntarily submitted to the blood
draw. The second ALJ thus voided Miranda’s license
suspension.
MIRANDA V. CITY OF CASA GRANDE 9
C
In July 2018, Miranda sued the City of Casa Grande and
Officer Rush in Arizona state court. In addition to raising
several state law claims, Miranda’s complaint alleged a
42 U.S.C. § 1983 count against Rush. The § 1983 claim was
titled “Violation of Fourteenth Amendment Rights;
Wrongful Initiation of Civil Proceedings.” Miranda alleged
that Rush “knew that [Miranda] had consented to the blood
test,” yet still “initiated and pursued” the license suspension.
Miranda also alleged that Rush “lied under oath” to the ALJ,
and that Rush’s “false testimony at the administrative
hearing also caused a deprivation of [Miranda’s] right to
procedural due process under the Fourteenth Amendment.”
The defendants removed the case to federal court. Later,
they filed a motion for summary judgment on all claims. The
district court granted summary judgment on the § 1983
claim, concluding that Miranda had not shown an underlying
constitutional violation. The court then remanded the
remaining state law claims to state court. On appeal,
Miranda argues that Officer Rush’s “deliberately false
testimony” violated due process because it led to the
temporary suspension of his driver’s license.
II
We review de novo a district court’s order granting
summary judgment, examining the evidence in the light
most favorable to Miranda, the non-moving party. Badgley
v. United States, 957 F.3d 969, 974 (9th Cir. 2020). We may
affirm the district court on any ground supported in the
record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d
1116, 1121 (9th Cir. 2008).
10 MIRANDA V. CITY OF CASA GRANDE
To prevail under § 1983, Miranda must at minimum
prove the violation of a federal or constitutional right. See
Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th
Cir. 2006). There is, of course, no express constitutional
guarantee or other federal right to a driver’s license. And
while Miranda disclaimed reliance on a substantive due
process theory in the district court, we have also previously
held that “a driver’s license is not a fundamental right,” so
that its deprivation does not violate substantive due process.
Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018); see
also Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999)
(“Miller provides no precedent supporting his contention
that, absent a lack of due process, denial of a driver’s license
is tantamount to denial of a constitutional right.”).
Miranda’s claim thus sounds, if at all, in procedural due
process. But we hold that Miranda has not demonstrated a
procedural due process violation here.
A
A procedural due process claim has two elements: “(1) a
deprivation of a constitutionally protected liberty or property
interest, and (2) a denial of adequate procedural protections.”
Franceschi, 887 F.3d at 935 (quoting Hufford v. McEnaney,
249 F.3d 1142, 1150 (9th Cir. 2001)). It has long been
understood that “the Due Process Clause applies to the
deprivation of a driver’s license by the State.” Dixon v.
Love, 431 U.S. 105, 112 (1977). Arizona thus may not
deprive Miranda of his driver’s license “without [the] due
process required by the Fourteenth Amendment.”
Franceschi, 887 F.3d at 935 (citing Bell v. Burson, 402 U.S.
535, 539 (1971)).
But to say that the deprivation of a driver’s license can
implicate procedural due process protections does not
MIRANDA V. CITY OF CASA GRANDE 11
resolve the level of protection that must be afforded. The
touchstone of procedural due process is notice and an
opportunity to be heard. Dusenbery v. United States,
534 U.S. 161, 167 (2002). Yet “[d]ue process is a flexible
concept that varies with the particular situation.” Yagman v.
Garcetti, 852 F.3d 859, 863 (9th Cir. 2017) (quoting
Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015)).
Therefore, what the Due Process Clause “requires in any
given case is a function of context.” Franceschi, 887 F.3d
at 935 (quoting Brewster v. Bd. of Educ., 149 F.3d 971, 983
(9th Cir. 1998)).
In Dixon v. Love, for instance, the Supreme Court held
that in the case of a driver with repeated convictions for
traffic offenses, a state could suspend a driver’s license
without any pre-revocation hearing at all, as long as post-
revocation procedures were available. 431 U.S. at 112–15;
see also Franceschi, 887 F.3d at 935–36 (rejecting a
procedural due process challenge to California’s scheme
suspending driver’s licenses of certain delinquent
taxpayers); Aiona v. Judiciary of Haw., 17 F.3d 1244, 1249–
50 & n.9 (9th Cir. 1994) (rejecting a procedural due process
objection to Hawaii’s driver’s license revocation scheme).
The immediate problem Miranda encounters with any
procedural due process claim is that he received considerable
process. At the police station, Officer Rush read to him from
a standardized form designed to confirm that he was not
expressly consenting to a blood draw (and to minimize error
in that determination). Although many § 1983 litigants
justifiably complain about police failing to obtain a warrant,
here Rush secured a warrant for a blood draw through a
judge on the Casa Grande Justice Court. While Miranda
protests that this warrant was unnecessary because he had
consented to the blood draw, Rush points out that nothing
prevented him from seeking a warrant regardless, and there
12 MIRANDA V. CITY OF CASA GRANDE
can be little doubt that the warrant was supported by
probable cause.
Once Rush determined that Miranda failed expressly to
consent to a blood draw and that his license should therefore
be suspended, Arizona law afforded Miranda an opportunity
to challenge that suspension before a state ALJ. See A.R.S.
§§ 28-1321(F)–(K); Ariz. Admin. Code § 17-1-502.
Miranda took full advantage of this process, with the
assistance of counsel and witnesses. And he raises no due
process challenge to Arizona’s procedures themselves.
Instead, Miranda’s contention is that Officer Rush
testified falsely at the first ALJ hearing about whether
Miranda had recanted his refusal to submit to the blood
draw, and that this alleged lie standing alone formed a
procedural due process violation when it led to his license
being temporarily suspended. Miranda is incorrect.
In Parratt v. Taylor, 451 U.S. 527 (1981), overruled on
other grounds by Daniels v. Williams, 474 U.S. 327 (1986),
the Supreme Court explained that meaningful post-
deprivation remedies will suffice when the deprivation was
the “result of a random and unauthorized act by a state
employee.” Id. at 541. When there is a “necessity of quick
action by the State or the impracticality of providing any
meaningful predeprivation process,” “postdeprivation
remedies made available by the State can satisfy the Due
Process Clause.” Id. at 538–39. A state employee acting in
an unauthorized manner fits that situation, the Supreme
Court held, because “[i]n such a case, the loss is not a result
of some established state procedure and the State cannot
predict precisely when the loss will occur.” Id. at 541.
Parratt involved a state employee’s allegedly negligent
conduct. In Hudson v. Palmer, 468 U.S. 517 (1984), the
MIRANDA V. CITY OF CASA GRANDE 13
Supreme Court extended Parratt’s logic to an official’s
intentional misconduct. In Hudson, an inmate alleged that
prison guards had maliciously destroyed his personal
belongings, depriving him of property without due process.
Id. at 530–32. The Supreme Court explained that “[t]he
underlying rationale of Parratt is that when deprivations of
property are effected through random and unauthorized
conduct of a state employee, predeprivation procedures are
simply ‘impracticable’ since the state cannot know when
such deprivations will occur.” Id. at 533. That reasoning,
Hudson held, applied with even more force to intentional
deprivations:
The state can no more anticipate and control
in advance the random and unauthorized
intentional conduct of its employees than it
can anticipate similar negligent conduct.
Arguably, intentional acts are even more
difficult to anticipate because one bent on
intentionally depriving a person of his
property might well take affirmative steps to
avoid signalling his intent. If negligent
deprivations of property do not violate the
Due Process Clause because predeprivation
process is impracticable, it follows that
intentional deprivations do not violate that
Clause provided, of course, that adequate
state post-deprivation remedies are available.
Id. 1
The Supreme Court later overruled the portion of Parratt that
1
allowed an official’s merely negligent conduct to serve as the basis for a
claimed constitutional violation. See Daniels, 474 U.S. at 331
14 MIRANDA V. CITY OF CASA GRANDE
We think Hudson provides the proper fit here. Officer
Rush, to be sure, strongly resists Miranda’s allegation that
he lied in the first ALJ hearing, with Rush maintaining that
his perception of the chaotic events was reasonable. But
assuming without deciding that Rush did lie, that conduct
can only be described as “unauthorized” under Hudson. Id.Miranda himself argues in his briefing that “Rush abused the
authority of his position and undermined the safeguards
owed to Miranda,” suggesting Rush did so to “punish
plaintiff for working for the ‘Feds.’” That is akin to the
“unauthorized personal vendetta” at issue in Hudson.
Zinermon v. Burch, 494 U.S. 113, 130 (1990). As in
Hudson, Rush (by Miranda’s allegations) was “bent upon
effecting the substantive deprivation and would have done
so despite any and all predeprivation safeguards.” Id. at 137.
Indeed, the conclusion that Rush’s conduct was
unauthorized is, if anything, stronger here than in Hudson
itself because Rush engaged in alleged wrongdoing
notwithstanding the fact that Arizona had put in place
various pre-deprivation safeguards for driver’s license
suspensions—procedures whose adequacy Miranda does not
challenge here. Whereas Hudson involved no pre-
deprivation process at all, see 468 U.S. at 519–20, Rush’s
alleged misconduct took place within a defined state process
that included a neutral arbiter and various other protections
traditionally designed to secure the truth (availability of
counsel, cross-examination, witnesses under oath, etc.).
Rush was not even the final decisionmaker here; the ALJ
(“Historically, this guarantee of due process has been applied to
deliberate decisions of government officials . . . .”). But nothing in
Daniels disturbed Parratt’s determination that a State could remedy the
unauthorized action of a government official through adequate post-
deprivation processes.
MIRANDA V. CITY OF CASA GRANDE 15
was. Nor does Miranda suggest additional procedures, much
less reasonable ones, that would reliably prevent dishonest
testimony. (To the extent Miranda claims a related
procedural due process violation arising from Officer Rush’s
allegedly misleading phone call seeking a warrant, that too
was “unauthorized,” and the same analysis above applies.)
In short, Miranda provides no basis to conclude that
Rush’s alleged intentional misconduct was authorized, much
less that it was predictable or reasonably avoidable. Cf.
Zinermon, 494 U.S. at 136–39 (requiring pre-deprivation
process when the alleged wrongdoing was “foreseeable,”
when it might have “averted” the deprivation, and when the
defendants under state law had “authority to effect the very
deprivation complained of here”). For unauthorized
deprivations like this one, “the state’s action is not complete
until and unless it provides or refuses to provide a suitable
postdeprivation remedy.” Hudson, 468 U.S. at 533. To
determine whether Miranda has made out a procedural due
process claim, the proper inquiry thus turns on the
procedures the State afforded Miranda after his initial license
suspension.
There can be no serious question that those post-
deprivation procedures were both meaningful and sufficient
under the Due Process Clause. When Miranda discovered
the station house videos, he was granted a second
administrative hearing. At this hearing, he had the
opportunity to present new evidence and arguments before a
new ALJ, who ultimately voided the suspension and
reinstated Miranda’s license. “A violation of procedural
rights requires only a procedural correction, not the
reinstatement of a substantive right . . . .” Raditch v. United
States, 929 F.2d 478, 481 (9th Cir. 1991). Here, however,
Miranda received both.
16 MIRANDA V. CITY OF CASA GRANDE
On top of this, Arizona also allows Miranda to bring state
law claims, which he is presently pursuing against Rush and
the City of Casa Grande in Arizona state court. See, e.g.,
Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (per
curiam) (concluding that state tort law provided an adequate
post-deprivation remedy for an unauthorized property loss);
King v. Massarweh, 782 F.2d 825, 827 (9th Cir. 1986)
(concluding that when officers “did not act in accordance
with established state procedures but instead acted in
violation of police procedures promulgated by the San
Francisco Police Department,” their conduct was
unauthorized and plaintiffs were “relegated to the post-
deprivation remedies available through the civil tort law
process for their due process claims”).
Whether or not Miranda proves successful in state court,
the availability of potential state tort remedies supports our
view that Arizona has provided Miranda with adequate post-
deprivation process. Miranda protests that punitive damages
are not available through his state law claims. But that
Miranda “might not be able to recover under these remedies
the full amount which he might receive in a § 1983 action is
not . . . determinative of the adequacy of the state remedies.”
Hudson, 468 U.S. at 535.
Because Arizona has provided Miranda with sufficient
post-deprivation mechanisms, Miranda cannot demonstrate
a procedural due process violation and has “received all the
process that was due.” Raditch, 929 F.2d at 480. Accepting
Miranda’s contrary position, meanwhile, would be both
inconsistent with governing precedent and potentially
dramatic in its implications, threatening to turn nearly every
mishap or misdeed in a state administrative process into a
federal constitutional violation. The Supreme Court has
long cautioned that we should not make “the Fourteenth
Amendment a font of tort law to be superimposed upon
MIRANDA V. CITY OF CASA GRANDE 17
whatever systems may already be administered by the
States.” Daniels, 474 U.S. at 332 (quoting Paul v. Davis,
424 U.S. 693, 701 (1976)). In the case of a deprivation
resulting from a flawed state proceeding of the type at issue
here, what matters under the Due Process Clause is not
merely the initial deprivation itself but whether the State has
set up adequate procedural protections surrounding it. Here,
we conclude that Arizona’s post-deprivation processes are
sufficient. Miranda’s § 1983 claim thus fails. 2
B
Against the weight of this reasoning, Miranda maintains
that two of our cases require a different conclusion. He
points specifically to Devereaux v. Abbey, 263 F.3d 1070(9th Cir. 2001) (en banc), and Costanich v. Dep’t of Soc. &
Health Servs., 627 F.3d 1101 (9th Cir. 2010). But these
cases involve substantive due process rights, and present
other important differences as well. Neither case supports
Miranda’s assertion that Officer Rush’s alleged misconduct
creates a due process violation regardless of the post-
deprivation remedies available under Arizona law.
In Devereaux, a foster parent brought a § 1983 claim
alleging that police had used improper interrogation
techniques against his foster children, leading to false
criminal charges for child abuse. 263 F.3d at 1076–80. We
identified in that case “a clearly established constitutional
due process right not to be subjected to criminal charges on
2
We thus have no occasion to address whether Rush would be
entitled to any form of official immunity under § 1983, an issue that the
district court did not reach.
18 MIRANDA V. CITY OF CASA GRANDE
the basis of false evidence that was deliberately fabricated
by the government.” Id. at 1074–75.
That holding does not govern here. Unlike Devereaux,
Miranda’s alleged deprivation does not arise from a criminal
proceeding. And the considerations that apply to a potential
deprivation of liberty do not automatically carry over to the
temporary suspension of a driver’s license. In addition, and
although Devereaux did not clearly identify the source of the
constitutional right it identified, we have later described it as
grounded in substantive due process. See Hall v. City of Los
Angeles, 697 F.3d 1059, 1068–69 (9th Cir. 2012); see also
Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir.
2013) (same). As we have explained above, Miranda’s
claim sounds, if at all, in procedural due process. The
considerations that bear on a claim founded in a substantive
due process right do not invariably translate over to the
procedural due process context, given the different interests
at stake.
Finally, to support the claim Devereaux allowed, the
plaintiff
must, at a minimum, point to evidence that
supports at least one of the following two
propositions: (1) Defendants continued their
investigation of Devereaux despite the fact
that they knew or should have known that he
was innocent; or (2) Defendants used
investigative techniques that were so
coercive and abusive that they knew or
should have known that those techniques
would yield false information.
Devereaux, 263 F.3d at 1076. Even giving Miranda’s view
of the facts its widest berth, this case does not meet or
MIRANDA V. CITY OF CASA GRANDE 19
approximate either of Devereaux’s requirements, whether in
kind or in severity.
Costanich also does not aid Miranda. In that case, a
foster parent brought a § 1983 claim against a social worker
for falsifying evidence, which led to the plaintiff losing her
foster care license and custody of her foster children.
627 F.3d at 1110. The plaintiff alleged that the social worker
had purposefully misquoted interviewees and falsely
reported witness contacts. Id. at 1111–12. Relying on
Devereaux, we held that “deliberately fabricating evidence
in civil child abuse proceedings violates the Due Process
clause of the Fourteenth Amendment when a liberty or
property interest is at stake.” Id. at 1108; see also id. at 1111,
1114–15.
But our holding in Costanich was limited to the
plaintiff’s substantive due process claim, effectively based
on a right to raise foster children. See id. at 1110 (framing
the issue as a “substantive due process claim” based on
plaintiff’s alleged deprivation of her “property and liberty
interests in her foster care license and in the care of E. and
B. as their dependency guardian”). We also did not decide
if such a substantive due process right was in fact viable. We
instead assumed that the right existed because the defendants
did not dispute it and had waived any argument otherwise.
Id. at 1110, 1114 n.13, 1116 n.15; see also Hardwick v.
County of Orange, 844 F.3d 1112, 1120 (9th Cir. 2017)
(discussing the waiver in Costanich).
When it came to the Costanich plaintiff’s procedural due
process claim, however, we had little difficulty rejecting it:
the plaintiff had already “benefitted from multiple layers of
administrative and state court review and, therefore, cannot
allege that she is a victim of ‘lack of process.’” 627 F.3d
20 MIRANDA V. CITY OF CASA GRANDE
at 1117. It is that same basic logic that we apply here in
rejecting Miranda’s procedural due process theory.
* * *
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.