Terence Tekoh v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERENCE B. TEKOH, No. 18-56414
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-07297-
GW-SK
COUNTY OF LOS ANGELES; DENNIS
STANGELAND, Sergeant; CARLOS
VEGA, Deputy, OPINION
Defendants-Appellees,
and
LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT; DOES, 1 TO 10,
Defendants.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted April 27, 2020
Pasadena, California
Filed January 15, 2021
Before: Kim McLane Wardlaw, Mary H. Murguia, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Wardlaw
2 TEKOH V. COUNTY OF LOS ANGELES
SUMMARY *
Civil Rights
The panel vacated the district court’s judgment on a
jury’s verdict, reversed the district court’s judgment as to
plaintiff’s requested jury instruction, and remanded for a
new trial in an action alleging, in part, that plaintiff’s Fifth
Amendment right against self-incrimination was violated
when his un-Mirandized statement was used against him at
his criminal trial.
The district court concluded that the use of the statement
alone was insufficient to demonstrate a violation of the right
against self-incrimination and, instead, instructed the jury
that the plaintiff had to show that the interrogation that
procured the statement was unconstitutionally coercive
under the totality of the circumstances, with the Miranda
violation only one factor to be considered.
The panel held that in light of the Supreme Court’s
decision in Dickerson v. United States, 530 U.S. 428 (2000),
which held that Miranda is a rule of constitutional law that
could not be overruled by congressional action, where the
un-Mirandized statement has been used against the
defendant in the prosecution’s case in chief in a prior
criminal proceeding, the defendant has been deprived of his
Fifth Amendment right against self-incrimination, and he
may assert a claim against the state official who deprived
him of that right under § 1983.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TEKOH V. COUNTY OF LOS ANGELES 3
The panel held that the district court erred interpreting
Chavez v. Martinez, 538 U.S. 760 (2003), to stand for the
proposition that a § 1983 claim can never be grounded on a
Miranda violation. The panel stated Justice Thomas’s
plurality opinion, which reasoned in dicta that damages were
unavailable for Miranda violations, did not command
support from five Justices and was based on a rationale
significantly broader than those of the concurring Justices.
Thus, contrary to the district court’s conclusion, the broad
principles in Justice Thomas’s opinion in Chavez were not
binding in this case.
The panel held that while the question of liability was
ultimately for the jury to decide, plaintiff sufficiently
demonstrated a Fifth Amendment violation caused by Los
Angeles Sheriff’s Deputy Carlos Vega under § 1983, such
that the district court erred by failing to instruct the jury on
this claim. Moreover, there was also no question that Deputy
Vega caused the introduction of the statements at plaintiff’s
criminal trial even though Vega himself was not the
prosecutor.
The panel stated that it was not holding that taking an un-
Mirandized statement always gives rise to a § 1983 action.
The panel held only that where government officials
introduce an un-Mirandized statement to prove a criminal
charge at a criminal trial against a defendant, a § 1983 claim
may lie against the officer who took the statement. By
contrast, in cases like Chavez, where the suspect was never
charged, or where police coerce a statement but do not rely
on that statement to file formal charges, the Fifth
Amendment is not implicated.
Finally, the panel could not conclude that it was more
probable than not that the jury would have reached the same
4 TEKOH V. COUNTY OF LOS ANGELES
verdict had it been properly instructed. Accordingly, the
error was not harmless. The panel thus vacated the judgment
on the jury’s verdict and remanded the case for a new trial in
which the jury must be properly instructed that the
introduction of a defendant’s un-Mirandized statement at his
criminal trial during the prosecution’s case in chief alone is
sufficient to establish a Fifth Amendment violation.
COUNSEL
Paul Hoffman (argued) and John Washington, Schonbrun
Seplow Harris & Hoffman LLP, Hermosa Beach, California;
John Burton and Matt Sahak, Law Offices of John Burton,
Pasadena, California; for Plaintiff-Appellant.
Antonio K. Kizzie (argued) and Rickey Ivie, Ivie McNeill &
Wyatt, Los Angeles, California, for Defendants-Appellees.
OPINION
WARDLAW, Circuit Judge:
We must decide whether the use of an un-Mirandized
statement against a defendant in a criminal case is alone
sufficient to support a 42 U.S.C. § 1983 action based on the
Fifth Amendment violation. The district court concluded
that the use of the statement alone was insufficient to
demonstrate a violation of the right against self-
incrimination and, instead, instructed the jury that the
plaintiff had to show that the interrogation that procured the
statement was unconstitutionally coercive under the totality
of the circumstances, with the Miranda violation only one
factor to be considered. Neither the Supreme Court nor our
TEKOH V. COUNTY OF LOS ANGELES 5
court has directly addressed this precise question. However,
in light of the Supreme Court’s decision in Dickerson v.
United States, 530 U.S. 428 (2000), which held that Miranda
is a rule of constitutional law that could not be overruled by
congressional action, we conclude that where the un-
Mirandized statement has been used against the defendant in
the prosecution’s case in chief in a prior criminal proceeding,
the defendant has been deprived of his Fifth Amendment
right against self-incrimination, and he may assert a claim
against the state official who deprived him of that right under
§ 1983.
I.
A.
Terence Tekoh was working at a Los Angeles medical
center when a patient accused him of sexual assault.
According to the patient, Tekoh lifted her coversheets and
made sexual contact while transporting her within the
hospital. Hospital staff reported the allegation to the Los
Angeles Sheriff’s Department. Deputy Carlos Vega
responded to investigate.
Deputy Vega found Tekoh in the MRI section, where he
worked transporting patients to and from their MRIs and
their rooms, and the two went into a nearby, private room to
talk. Though Deputy Vega questioned Tekoh, he did not
advise him of his Miranda rights. By the end of the
questioning, Tekoh had written the following statement:
To who [sic] it may concern,
This is an honest and regrettable apology
from me about what happened a few hours
ago. It was I don’t know what suddenly
6 TEKOH V. COUNTY OF LOS ANGELES
came over me, but it was certainly the most
weakest moment I’ve ever been caught up
with in my life. I’ve never ever found myself
doing such a despicable act. and I am I don’t
think this is an excuse but I’m single and
currently don’t have a girlfriend and became
very excited after I first saw her vagina
accidently. So after dropping her off, I
decided to go further by woking [sic] and
spreading her vagina lip for a quick view and
then went back to my duty post with the
intention of masturbating, which I never did.
How Tekoh came to write this statement is hotly disputed
and was the focus of the 42 U.S.C. § 1983 claim against
Deputy Vega that gave rise to this appeal.
1. Tekoh’s Account of the Questioning
In Tekoh’s telling, when Deputy Vega first approached
him, Vega asked if there was somewhere they could speak
in private. Tekoh’s co-workers suggested the MRI “reading
room,”—a small, windowless, and soundproof room used by
doctors to read MRIs. When one of Tekoh’s co-workers
tried to accompany Tekoh into the reading room, Deputy
Vega stopped her and told her the interview was private.
Deputy Vega shut the door and stood in front of it,
blocking Tekoh’s path to the exit. He then accused Tekoh
of touching the patient’s vagina. Tekoh adamantly denied
the allegation. After about 35 to 40 minutes of questioning
during which Tekoh refused to confess, Deputy Vega told
him (falsely) that the assault had been captured on video so
he might as well admit to it. Still, Tekoh did not confess.
TEKOH V. COUNTY OF LOS ANGELES 7
Tekoh then asked to speak to a lawyer, but Deputy Vega
ignored the request. At that point, Tekoh grew frustrated and
tried to get up and leave the room. Tekoh testified:
I made one or two steps, and [Deputy Vega]
rushed at me and stepped on my toes, put his
hand on his gun and said, “Mr. Jungle Nigger
trying to be smart with me. You make any
funny move, you’re going to regret it. I’m
about to put your black ass where it belongs,
about to hand you over to deportation
services, and you and your entire family will
be rounded up and sent back to the jungle
. . . . Trust me, I have the power to do it.”
According to Tekoh, this outburst left him “shaking” and
triggered flashbacks to his experiences with police brutality
in Cameroon, where he was from.
Deputy Vega then grabbed a pen and paper, put them in
front of Tekoh, and told him to “write what the patient said
[he] did.” When Tekoh hesitated, Vega put his hand on his
gun and said he was not joking. According to Tekoh, Vega
then dictated the content of the written confession and
Tekoh, who was scared and “ready to write whatever [Vega]
wanted,” acquiesced and wrote the statement down.
2. Deputy Vega’s Account of the Questioning
Deputy Vega testified to a much different version of
events. According to Vega, when he first arrived at the MRI
section, he asked Tekoh what had happened with the patient,
and Tekoh said, “I made a mistake.” Tekoh asked if he could
“talk to [Vega] away from [his] co-workers and get a little
privacy.”
8 TEKOH V. COUNTY OF LOS ANGELES
After the two went into the MRI reading room, Vega
handed Tekoh a sheet of paper and said, “Can you write what
happened while I get my sergeant and we can ask you a
couple of questions[?]” According to Vega, Tekoh then
wrote out the confession himself without further prompting.
Another officer, Sergeant Stangeland, arrived soon after,
joining Deputy Vega in the room with Tekoh. According to
Stangeland, Tekoh indicated that he was willing to talk to the
officers. Deputy Vega then questioned Tekoh in “a very
conversational tone,” and Tekoh verbally admitted to
touching the patient’s vagina. Sergeant Stangeland testified
that Tekoh’s demeanor was “that of a man who was contrite,
who truly, you know, regretted what he had done.”
B.
Tekoh was arrested and charged in California state court
with unlawful sexual penetration in violation of California
Penal Code § 289(d). Early on in Tekoh’s first criminal trial
(before his confession was introduced), a witness for the
prosecution revealed evidence that had not been disclosed to
the defense, and, with Tekoh’s assent, a mistrial was
declared. During Tekoh’s retrial, the prosecution introduced
Tekoh’s confession as evidence of his guilt. Also during the
retrial, Dr. Iris Blandon-Gitlin, an expert on coerced
confessions, testified on Tekoh’s behalf. The jury returned a
verdict of not guilty.
C.
After his acquittal on the criminal charge, Tekoh filed
this action under 42 U.S.C. § 1983 seeking damages for
alleged violations of his constitutional rights. The case
began with several claims against multiple defendants, but
only one is at issue in this appeal: the claim that Deputy Vega
TEKOH V. COUNTY OF LOS ANGELES 9
violated Tekoh’s Fifth Amendment right against self-
incrimination.
Before the first trial in this case, Tekoh asked the district
court to instruct the jury that it should find in his favor on
the Fifth Amendment claim if it determined that Deputy
Vega obtained statements from him in violation of Miranda
that were used in the criminal case against him. And because
the only issue in dispute on this theory was whether Tekoh
was “in custody” during the questioning in the MRI reading
room such that Miranda warnings were required, Tekoh
submitted a proposed jury instruction that would have
informed jurors of factors to consider on that point. See
Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)
(“Miranda warnings are required only where there has been
such a restriction on a person’s freedom as to render him ‘in
custody.’”).
The district court refused to instruct the jury on Tekoh’s
theory, reasoning that the Supreme Court’s plurality
decision in Chavez v. Martinez, 538 U.S. 760 (2003), held
that Miranda was a mere “prophylactic rule,” rather than a
“constitutional requirement,” and that a § 1983 plaintiff like
Tekoh “[could not] use a prophylactic rule to create a
constitutional right.” Instead, the district court instructed the
jury to evaluate Tekoh’s claim that Deputy Vega had
coerced a confession as if it were a Fourteenth Amendment
claim based on fabrication of evidence. 1 So instructed, the
jury returned a verdict in favor of Deputy Vega.
1
This instruction required Tekoh to prove that, at a minimum,
“[Deputy] Vega used techniques that were so coercive and abusive that
he knew, or was deliberately indifferent, that those techniques would
yield false information that was used to criminally charge and prosecute
Plaintiff.”
10 TEKOH V. COUNTY OF LOS ANGELES
After the trial, however, the district court concluded that
it had erred by instructing the jury to evaluate Tekoh’s claim
as if it were brought under the Fourteenth Amendment
instead of as a violation of the Fifth Amendment. See Hall
v. City of Los Angeles, 697 F.3d 1059, 1068–69 (9th Cir.
2012) (holding that a coerced confession claim must be
brought under the Fifth Amendment, not as a Fourteenth
Amendment fabrication-of-evidence claim). It therefore
ordered a new trial on the coerced confession claim.
The jury instructions were again contested. Ultimately,
the district court gave the jury the following instruction on
coerced confessions:
You must consider the objective totality of all
the surrounding circumstances. Whether a
confession is improperly coerced or
compelled depends on the details of the
interrogation.
Factors to consider include, but are not
limited to:
(1) The location where the questioning
took place (for example at a police station
or on a public street), and whether the
location was chosen by the person or the
officer;
(2) Was the person free to go or was the
person under arrest or physically
restrained;
(3) Was the length of the questioning
oppressive;
TEKOH V. COUNTY OF LOS ANGELES 11
(4) What Plaintiff was told at the
beginning of the encounter and
throughout its duration;
(5) The manner in which the person was
questioned—for example: was any actual
force or infliction of pain used on the
person; was the person (or anyone near or
dear to him or her) threatened either
physically or psychologically; was the
officer’s gun drawn; did the officer
continually shout at the suspect for an
extended period; etc.
(6) If the warnings under the Miranda
decision (as described below) were
required at the time, whether the police
advised the person being questioned of
his or her right to remain silent and to
have a counsel present during the
custodial interrogation; and
(7) Any other factors that a reasonable
person would find coercive under the
circumstances.
Again, the jury returned a verdict in favor of Deputy Vega. 2
Tekoh timely appeals.
2
In both civil trials, the district court also excluded testimony from
Tekoh’s coerced confessions expert, Dr. Blandon-Gitlin, who had
testified on Tekoh’s behalf at his second criminal trial, which resulted in
an acquittal.
12 TEKOH V. COUNTY OF LOS ANGELES
II.
We have jurisdiction under 28 U.S.C. § 1291. 3 We
review de novo the district court’s rejection of Tekoh’s
proposed jury instruction on his Miranda theory on the
ground that it was not a correct statement of the law. 4 Smith
v. City & Cnty. of Honolulu, 887 F.3d 944, 951 (9th Cir.
2018) (“We review a district court’s formulation of civil jury
instructions for an abuse of discretion, but we consider de
novo whether the challenged instruction correctly states the
law.” (citation omitted)).
3
Deputy Vega briefly argues that we lack jurisdiction to review the
district court’s refusal to instruct the jury on the Miranda theory because
Tekoh did not list the orders rejecting his proposed Miranda instruction
in his notice of appeal. But the district court’s pretrial orders regarding
the jury instructions merged into the final judgment, so by appealing the
judgment, Tekoh “implicitly brought all of the district court’s
subordinate orders within the jurisdiction of our court.” Hall, 697 F.3d
at 1070.
4
Deputy Vega’s argument that Tekoh failed to preserve his
challenge to the jury instruction lacks merit. The propriety of Tekoh’s
requested jury instruction was extensively litigated in both trials. The
district court made clear on several occasions that it understood Tekoh’s
argument but was not going to change its mind on giving the instruction.
In fact, the court specifically told Tekoh that he had preserved his
objection to the refusal to give the instruction. This was more than
enough to preserve the issue for appeal. United States ex rel. Reed v.
Callahan, 884 F.2d 1180, 1184 (9th Cir. 1989) (holding that additional
objections to the jury instructions are not required “when it is obvious
that in the process of settling the jury instructions the court was made
fully aware of the objections of the party and the reasons therefor and
further objection would be unavailing”).
TEKOH V. COUNTY OF LOS ANGELES 13
III.
Under 42 U.S.C. § 1983, a plaintiff may bring suit for
damages against a state official who deprives him of “any
rights, privileges, or immunities secured by the
Constitution.” Whether the district court should have given
Tekoh’s proposed Miranda instruction turns on whether the
introduction of Tekoh’s un-Mirandized statement at his
criminal trial constituted a violation of Tekoh’s Fifth
Amendment rights.
A.
The Fifth Amendment provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. In Miranda v.
Arizona, the Supreme Court implemented this guarantee by
setting forth “concrete constitutional guidelines” for officers
to follow when conducting custodial interrogations.
384 U.S. 436, 441–42 (1966); see Chavez, 538 U.S. at 790(Kennedy, J., concurring) (explaining that Miranda
warnings were “adopted to reduce the risk of a coerced
confession and to implement the Self-Incrimination
Clause”). Under Miranda, before an individual in custody
is interrogated, he must be advised “that he has a right to
remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.”
384 U.S. at 444. Thereafter, the officer may proceed with
questioning only if the subject of the interrogation agrees to
waive these rights. Id. at 444–45; see Berghuis v.
Thompkins, 560 U.S. 370, 382–85 (2010).
Miranda marked a significant shift in how courts
evaluate the admissibility of confessions. Before Miranda,
“voluntariness vel non was the touchstone of admissibility.”
14 TEKOH V. COUNTY OF LOS ANGELES
Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J.,
concurring). In determining whether a confession could be
admitted in criminal proceedings, courts looked to “the
totality of all the surrounding circumstances” to determine
“whether [the] defendant’s will was overborne.”
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). After
Miranda, however, an officer’s failure to provide the
requisite Miranda warnings or to obtain a valid waiver of the
suspect’s Miranda rights is generally enough, on its own, to
“require[] exclusion of any statements obtained.” 5 Missouri
v. Seibert, 542 U.S. 600, 608 (2004).
In the decades following Miranda, there was significant
debate about the extent to which Miranda warnings were
constitutionally required. On the one hand, the Miranda
opinion itself appeared to contemplate that statements taken
from a defendant who was in custody but had not been given
Miranda warnings were inherently compelled, and thus
obtained in violation of the Fifth Amendment. See Miranda,
384 U.S. at 458 (“Unless adequate protective devices are
employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can
truly be the product of his free choice.”); see also Dickerson,
530 U.S. at 447 (Scalia, J., dissenting) (acknowledging that
the “fairest reading” of Miranda is that the use of un-
Mirandized statements at trial “violates the Constitution”).
And Miranda involved proceedings in state courts, over
5
Miranda supplemented, rather than replaced, the traditional
voluntariness test. Dickerson, 530 U.S. at 444. Accordingly, a suspect
seeking to suppress a confession may show either that it was obtained in
violation of Miranda or that it was involuntarily given. Id. But see
Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (“[C]ases in which
a defendant can make a colorable argument that a self-incriminating
statement was ‘compelled’ despite the fact that the law enforcement
authorities adhered to the dictates of Miranda are rare.”).
TEKOH V. COUNTY OF LOS ANGELES 15
which the Supreme Court lacks plenary supervisory control.
See Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal
courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of
constitutional dimension.”).
On the other hand, the Miranda decision left open the
possibility that the specific warnings set out in the opinion
might not be necessary if the states or Congress devised
other adequate means of protecting against “the inherent
compulsions of the interrogation process.” 384 U.S. at 467.
And more significantly, in several decisions, the Court
described Miranda warnings as mere “prophylactic rules” or
“procedural safeguards” that were “not themselves rights
protected by the Constitution.” New York v. Quarles,
467 U.S. 649, 653–55 (1984); Michigan v. Tucker, 417 U.S.
433, 444 (1974); see also Oregon v. Elstad, 470 U.S. 298,
306 (1985) (“The Miranda exclusionary rule . . . sweeps
more broadly than the Fifth Amendment itself.”).
The issue came to a head in Dickerson v. United States.
Dickerson concerned a federal statute, enacted in the wake
of the Court’s Miranda decision, that provided that
confessions were admissible as long as they were voluntarily
made, regardless of whether Miranda warnings had been
provided. 530 U.S. at 432; 18 U.S.C. § 3501. Whether the
rule set forth in the statute was constitutionally permissible
“turn[ed] on whether the Miranda Court [had] announced a
constitutional rule”; if it had, Congress could not override
that rule by statute. Dickerson, 530 U.S. at 437. The Court
acknowledged that language in Quarles, Tucker, and other
post-Miranda decisions could be read to support the view
that Miranda warnings were not constitutionally required.
Id. at 437–38. But the Dickerson Court ultimately concluded
that Miranda was “a constitutional decision” that Congress
16 TEKOH V. COUNTY OF LOS ANGELES
could not overrule. Id. at 438–39; see also id. at 440 & n.5
(describing Miranda as “constitutionally based” and as
having “constitutional underpinnings”). Accordingly, the
Dickerson Court invalidated § 3501. Id. at 443–44.
Dickerson strongly supports Tekoh’s argument that a
plaintiff may bring a § 1983 claim predicated on a Miranda
violation when the un-Mirandized statement is used against
him in criminal proceedings. Section 1983 permits suits for
damages to vindicate “rights, privileges, or immunities
secured by the Constitution.” Because Dickerson made clear
that the right of a criminal defendant against having an un-
Mirandized statement introduced in the prosecution’s case in
chief is indeed a right secured by the Constitution, we
conclude that Tekoh has a claim that his Fifth Amendment
right against self-incrimination was violated.
B.
This clear view of the constitutional nature of Miranda
warnings was later muddied by United States v. Patane,
542 U.S. 630 (2004), and Chavez v. Martinez, 538 U.S. 760(2003). In Patane, the Court held, in a fractured decision,
that the Constitution did not require suppression of physical
evidence found as a result of an interrogation that violated
Miranda—i.e., the “physical fruits” of a Miranda violation.
542 U.S. at 633–34. Writing for the four-Justice plurality,
Justice Thomas described the Miranda rule as “sweep[ing]
beyond the actual protections of the Self-Incrimination
Clause.” Id. at 639. He further concluded that a
constitutional violation based on a failure to give Miranda
warnings could not occur, if at all, until the unwarned
statements were admitted at trial, at which point the
exclusion of the statements themselves would be a
“complete and sufficient remedy” for the violation. Id. at
641–42 (quoting Chavez, 538 U.S. at 790 (Kennedy, J.,
TEKOH V. COUNTY OF LOS ANGELES 17
concurring)). However, Justice Kennedy, joined by Justice
O’Connor, concurred in the judgment on narrower grounds,
holding only that the suppression of physical evidence was
not required by the Fifth Amendment because it “does not
run the risk of admitting into trial an accused’s coerced
incriminating statements against himself.” Id. at 645
(Kennedy, J., concurring). Neither justice joined the
plurality’s broader discussion of Miranda as sweeping
beyond the protection of the Fifth Amendment.
Previously, in Chavez, the Supreme Court had
confronted the question of whether a plaintiff could sue
under § 1983 for an officer’s failure to give Miranda
warnings when the plaintiff was not charged with a crime,
and, therefore, his un-Mirandized statements were never
used against him in criminal proceedings. See 538 U.S. at764–65 (plurality opinion). In a fractured decision
consisting of six separate opinions, none of which garnered
a majority on anything but the judgment, the Court held that
such claims are not viable.
Specifically, Justice Thomas’s plurality opinion in
Chavez concluded that a “criminal case” requires, at the very
least, “the initiation of legal proceedings,” and that because
no proceedings had been brought against the plaintiff, he had
not suffered a Fifth Amendment violation. 538 U.S. at 766.
Having reached this conclusion, which alone was enough to
resolve the case, the plurality nevertheless continued on to
discuss Miranda. Citing Elstad, Tucker and other pre-
Dickerson cases, the plurality characterized the requirement
of Miranda warnings as a “prophylactic rule[] designed to
safeguard the core constitutional right protected by the Self-
Incrimination Clause,” id. at 770, repeating the points made
by Justice Scalia, whose dissent in Dickerson was joined by
Justice Thomas. 530 U.S. at 447 (Scalia, J., dissenting). The
18 TEKOH V. COUNTY OF LOS ANGELES
Chavez plurality explained that violations of “judicially
crafted prophylactic rules do not violate the constitutional
rights of any person” and therefore “cannot be grounds for a
§ 1983 action.” 538 U.S. at 772.
The specific holding in Chavez does not govern Tekoh’s
case because unlike the plaintiff in Chavez, Tekoh’s un-
Mirandized statements were used against him in criminal
proceedings. But the district court read Chavez to stand for
the broader proposition that a § 1983 claim can never be
grounded on a Miranda violation. In adopting this reading
of Chavez, the district court treated Justice Thomas’s
plurality opinion of four Justices as supplying the controlling
precedent here.
The district court went astray by doing so. In United
States v. Davis, 825 F.3d 1014 (9th Cir. 2016), our court,
sitting en banc, examined the question of what rule our court
was bound to apply when construing fractured Supreme
Court decisions. Addressing the guidelines laid out in Marks
v. United States, 430 U.S. 188, 193 (1977), we held that a
fractured Supreme Court decision “only bind[s] the federal
courts of appeal when a majority of the Justices agree upon
a single underlying rationale and one opinion can reasonably
be described as a logical subset of the other. When no single
rationale commands a majority of the Court, only the
specific result is binding on lower federal courts.” Davis,
825 F.3d at 1021–22. In sum, we concluded that “Marks
instructs us to consider the opinions only of ‘those Members
who concurred in the judgments on the narrowest grounds’
when deriving a rule from a fractured Supreme Court
decision.” Id. at 1024 (quoting Marks, 430 U.S. at 193).
Applying Davis to Patane is straightforward. Even
though Justice Thomas’s plurality opinion spoke broadly
about the relationship between Miranda and the Fifth
TEKOH V. COUNTY OF LOS ANGELES 19
Amendment, Justice Kennedy’s concurring opinion was
both necessary to the judgment and narrowly focused on the
distinction between physical evidence and un-Mirandized
statements. Patane, 52 U.S. at 633–45. Critically, Justice
Kennedy’s opinion did not echo the plurality’s broader
discussion of Miranda, and it thus controls. Davis, 825 F.3d
at 1021–22.
While applying Davis to Chavez is less straightforward,
we conclude that none of the six opinions provides a binding
rationale. See Stoot v. City of Everett, 582 F.3d 910, 923 (9th
Cir. 2009). Justice Thomas’s plurality opinion, which
reasoned in dicta that damages were unavailable for Miranda
violations, did not command support from five Justices and
was based on a rationale significantly broader than those of
the concurring Justices. See Marks, 430 U.S. at 193. Thus,
contrary to the district court’s conclusion, the broad
principles in Justice Thomas’s opinion are not binding here.
None of the other opinions in Chavez articulates a
principle directly applicable to the facts presented here.
Justice Kennedy’s opinion was a dissent on the Fifth
Amendment claim because he would have affirmed, while
the plurality opinion reversed. 538 U.S. at 799. 6 And while
Justice Kennedy’s concurring opinion suggests that
exclusion “is a complete and sufficient remedy” for Miranda
violations, it assumes that the exclusion of “unwarned
statements” is available as a remedy. 538 U.S. at 790(Kennedy, J., concurring). Justice Kennedy’s opinion thus
6
In Davis, we left open the question whether we can consider
dissents in applying Marks. 825 F.3d at 1025; see also id. at 1028–30
(Christen, J., concurring) (five judges concurring in the view that Marks,
on its face, limits review to “the opinions of ‘those Members [of the
Court] who concurred in the judgments’” (quoting Marks, 430 U.S.
at 193)).
20 TEKOH V. COUNTY OF LOS ANGELES
does not speak to Tekoh’s plight, where exclusion is not
available as a remedy because the un-Mirandized statements
were already used against him in his criminal trial.
Exclusion, here, is neither complete nor sufficient.
On the other hand, Justice Souter’s concurring opinion,
joined by Justice Breyer, expressly noted that “[t]he question
whether the absence of Miranda warnings may be a basis for
a § 1983 action under any circumstance is not before the
Court.” Id. at 779 n.* (Souter, J., concurring).
“When, [as in Chavez], no ‘common denominator of the
Court’s reasoning’ exists, we are bound only by [and only
apply] the ‘specific result.’” Davis, 825 F.3d at 1028. Here,
the “specific result” from Chavez does not and cannot apply
to Tekoh’s particular circumstances because his un-
Mirandized statement was admitted in his criminal trial,
obviating exclusion as a remedy. Under our holding in
Davis, Justice Thomas’s plurality in Chavez therefore cannot
control. Thus, we are left with Dickerson for guidance,
which, as previously discussed, leads us to conclude that the
use of an un-Mirandized statement against a defendant in a
criminal proceeding violates the Fifth Amendment and may
support a § 1983 claim. 7
Our own decisions post-Patane and Chavez further
support this conclusion. In Stoot, we held that plaintiffs
could bring a § 1983 claim based on an officer’s extraction
of a coerced confession that was “relied upon to file formal
charges against the declarant, to determine judicially that the
prosecution may proceed, and to determine pretrial custody
7
Chavez clearly stands for the proposition that merely taking a
statement without Miranda warnings is insufficient to give rise to a
§ 1983 claim. Chavez, 538 U.S. at 767.
TEKOH V. COUNTY OF LOS ANGELES 21
status.” 582 F.3d at 925. Although we did not consider the
specific Miranda question presented here, we examined the
various opinions in Chavez and interpreted them in a manner
consistent with our interpretation here. See id. at 922–24;
see also Crowe v. Cty. of San Diego, 608 F.3d 406, 429–31
(9th Cir. 2010). And in Jackson v. Barnes, 749 F.3d 755,
762, 767 (2014), we held that a plaintiff could bring a § 1983
suit against an officer for obtaining an un-Mirandized
statement that was later used against him at his criminal trial,
as well as against a police department for failing to supervise
officers who routinely fail to give Miranda warnings.
Several of our sister circuits have also distinguished
Chavez, agreeing that the use of statements obtained in
violation of the Fifth Amendment against a defendant at his
criminal trial may give rise to a § 1983 claim. See
Sornberger v. City of Knoxville, 434 F.3d 1006, 1023–27
(7th Cir. 2006); Burrell v. Virginia, 395 F.3d 508, 513–14
(4th Cir. 2005) (holding that the plaintiff’s failure to “allege
any trial action that violated his Fifth Amendment rights”
barred recovery under § 1983) (emphasis added); Murray v.
Earle, 405 F.3d 278, 285 & n.11 (5th Cir. 2005); id. at 289–
90 (holding that the use of an “involuntary statement”
against a criminal defendant at trial could give rise to a
§ 1983 action); Renda v. King, 347 F.3d 550, 552, 557–59
(3d Cir. 2003) (recognizing that Chavez “leaves open the
issue of when a statement is used at a criminal proceeding”).
We therefore also reject the Eighth Circuit’s approach in
Hannon v. Sanner, in which the court interpreted Dickerson
together with Chavez to hold that a Miranda violation cannot
form the basis of a § 1983 claim because “the Miranda
procedural safeguards are ‘not themselves rights protected
by the Constitution.’” 441 F.3d 635, 636–38 (8th Cir. 2006)
(quoting Tucker, 417 U.S. at 444). In Hannon, the court
22 TEKOH V. COUNTY OF LOS ANGELES
described Dickerson as “maintaining the status quo of the
Miranda doctrine,” such that it remained bound by pre-
Dickerson circuit precedent that treated Miranda as a
prophylactic rule that swept more broadly than the Fifth
Amendment. Id. at 636–37 (citing Warren v. City of Lincoln,
864 F.2d 1436, 1442 (8th Cir. 1989) (en banc) and Brock v.
Logan Cty. Sheriff’s Dep’t, 3 F.3d 1215, 1217 (8th Cir.
1993) (per curiam)). In light of Dickerson’s express holding,
however, this cannot be correct. In Dickerson, the Supreme
Court in no way maintained the status quo; in fact, it
affirmatively backed away from previous decisions like
Quarles and Tucker that had described Miranda warnings as
merely prophylactic and “not themselves rights protected by
the Constitution,” the very cases Hannon relied upon.
530 U.S. at 437–39 (quoting Tucker, 417 U.S. at 444).
Finding Hannon unpersuasive, we conclude that the use of
an un-Mirandized statement against a defendant in a criminal
proceeding violates the Fifth Amendment and may support
a § 1983 claim.
C.
To hold Deputy Vega liable under § 1983 for violating
Tekoh’s Fifth Amendment rights, Tekoh must also prove
that his un-Mirandized statements were used against him and
that Deputy Vega caused the violation of his right against
self-incrimination. While the question of liability is
ultimately for the jury to decide, we conclude that Tekoh
sufficiently demonstrated a Fifth Amendment violation
caused by Deputy Vega under § 1983, such that the district
court erred by failing to instruct the jury on this claim. 8
8
A district court errs “when it rejects proposed jury instructions that
are properly supported by the law and the evidence.” Clem v. Lomeli,
TEKOH V. COUNTY OF LOS ANGELES 23
Here, there is no question that Tekoh’s statement was
used against him. The statement was introduced into
evidence in the failed state criminal prosecution of him. See
Stoot, 582 F.3d at 914–16; see also Sornberger, 434 F.3d
at 1026–27 (holding that where “a suspect’s criminal
prosecution was . . . commenced because of her allegedly
un-warned confession, the ‘criminal case’ contemplated by
the Self-Incrimination Clause has begun”). 9
There is also no question that Deputy Vega “caused” the
introduction of the statements at Tekoh’s criminal trial even
though Vega himself was not the prosecutor. In Stoot, we
held that a plaintiff may assert a Fifth Amendment violation
against the officer who interrogated him and then included
the coerced statements in the police report. 582 F.3d at 926.
We explained that “government officials, like other
defendants, are generally responsible for the ‘natural’ or
‘reasonably foreseeable’ consequences of their actions.” Id.(quoting Higazy v. Templeton, 505 F.3d 161, 175 (2d Cir.
2007)). Joining other circuits, we held that, absent unusual
circumstances, such as evidence that the officer “attempted
to prevent the use of the allegedly incriminating statements
. . . or that he never turned the statements over to the
prosecutor in the first place,” id. at 926 (quoting McKinley
v. City of Mansfield, 404 F.3d 418, 439 (6th Cir. 2005)), a
police officer who elicits incriminating statements from a
criminal suspect can reasonably foresee that the statements
566 F.3d 1177, 1181 (9th Cir. 2009) (citing Dang v. Cross, 422 F.3d 800,
804–05 (9th Cir. 2005)).
9
Because we do not address the circumstances present in
Sornberger, where an un-Mirandized statement was used against the
defendant in the commencement of her criminal prosecution but where
charges were dropped prior to trial, we do not decide whether such facts
could give rise to a claim for damages under § 1983. Id.
24 TEKOH V. COUNTY OF LOS ANGELES
will be used against the suspect in a criminal case, id. (citing
Higazy, 505 F.3d at 177); see also id. at 927 (“[O]rdinarily,
‘in actions brought under § 1983 for alleged violations of
[the Fifth Amendment], it is the person who wrongfully
coerces or otherwise induces the involuntary statement who
causes the violation of the [Fifth Amendment] privilege.’”
(quoting McKinley, 404 F.3d at 439)).
Similarly, here, although it was the prosecutors who used
Tekoh’s statements at his criminal trial, it was Deputy Vega
who interrogated Tekoh, prepared the incident report, and
personally signed the probable cause declaration. In those
documents, Vega stated that Tekoh was a suspect, that he
arrested Tekoh for the charge of “Sexual Penetration by
Foreign Object,” and that Tekoh’s incriminating statements
were the basis for the report and the probable cause
determination. As a result, a jury could infer that the
subsequent introduction of the statements in Tekoh’s
criminal trial was the reasonably foreseeable consequence of
Deputy Vega’s conduct. See Stoot, 582 F.3d at 926 (“[A]
jury could infer that the subsequent uses of the statements to
file criminal charges against [the suspect] and to set
conditions for his release at arraignment were reasonably
foreseeable consequences of [the interrogating officer’s]
conduct.”).
We do not hold that taking an un-Mirandized statement
always gives rise to a § 1983 action. We hold only that
where government officials introduce an un-Mirandized
statement to prove a criminal charge at a criminal trial
against a defendant, a § 1983 claim may lie against the
officer who took the statement. 10 By contrast, in cases like
10
This holding is not inconsistent with our prior holding in Fortson
v. L.A. City Atty’s Office, 852 F.3d 1190, 1192, 1194–95 (9th Cir. 2017).
TEKOH V. COUNTY OF LOS ANGELES 25
Chavez, where the suspect was never charged, or where
police coerce a statement but do not rely on that statement to
file formal charges, the Fifth Amendment is not implicated.
See Stoot, 582 F.3d at 925 n.15 (citing Chavez, 538 U.S.
at 778–79).
D.
Therefore, the district court erred by giving the coerced
confession instruction, rather than instructing on the
Miranda violation alone. 11 The giving of solely the coerced
confession instruction was not harmless. “[W]e ‘presume
prejudice where civil trial error is concerned.’” Clem v.
Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (quoting Dang
v. Cross, 422 F.3d 800, 811 (9th Cir. 2005)). Deputy Vega
bears the burden of demonstrating “that it is more probable
than not that the jury would have reached the same verdict
had it been properly instructed.” Id. Deputy Vega has not
met that burden.
First, to establish a Miranda violation, Tekoh need only
demonstrate that he was “in custody” when he was
In Fortson, we cited Chavez for the proposition that “failure to give
Miranda warnings does not create liability in a civil rights action.” Id.at 1194–95. This reliance on Chavez, however, is limited to Chavez’s
binding result that a mere failure to read Miranda warnings does not give
rise to a claim under § 1983. See id. at 1192 (explaining that Fortson’s
Miranda claim was based on the defendants’ failure to read him his
Miranda warnings, but nothing more). The plaintiff’s situation in
Fortson, like in Chavez, is distinguishable from Tekoh’s claim because
there was no indication that the Fortson plaintiff’s un-Mirandized
statements were used against him in a subsequent criminal case.
11
Of course, if the jury believes Deputy Vega’s version of events, it
could conclude that Tekoh was not “in custody,” and thus Miranda
warnings were not required, in which case Deputy Vega would prevail.
26 TEKOH V. COUNTY OF LOS ANGELES
questioned by Deputy Vega without Miranda warnings.
Miranda, 384 U.S. at 445. The district court instead required
Tekoh to prove “that the confession or statement was
improperly coerced and not voluntary” and that Vega “acted
intentionally in obtaining that coerced confession or
statement,”—a more difficult showing that effectively added
two elements to Tekoh’s claim. We have previously
recognized that when a court improperly requires an extra
element for a plaintiff’s burden of proof, the error is unlikely
to be harmless. Clem, 566 F.3d at 1182 (quoting Caballero
v. City of Concord, 956 F.2d 204, 207 (9th Cir. 1992)).
Second, we cannot presume that the jury would have
found that Tekoh was not in custody if it had been properly
instructed on Tekoh’s Miranda claim. As Deputy Vega
concedes, whether Tekoh was in custody involved a disputed
question of fact that turned on “credibility determinations
that an appellate court is in no position to make.” Caballero,
956 F.2d at 207; see also id. (“In reviewing a civil jury
instruction for harmless error, the prevailing party is not
entitled to have disputed factual questions resolved in his
favor[.]”).
Furthermore, we simply do not—and cannot—know
what the jury found as to the question of custody. The
district court erroneously instructed the jury to assess
whether Tekoh was coerced under a totality-of-the-
circumstances test, under which the Miranda violation was
one of seven factors. Thus, it was entirely possible for the
jury to find that Tekoh was in custody for Miranda violation
purposes, but still ultimately conclude that Deputy Vega’s
questioning did not rise to the level of coercion—a
significantly higher standard. See, e.g., Pollard v. Galaza,
290 F.3d 1030, 1035 (9th Cir. 2002) (holding that the
detective’s questioning of the defendant violated Miranda
TEKOH V. COUNTY OF LOS ANGELES 27
but “did not amount to coercion or compulsion”); Carpenter
v. Chappell, No. C 00-3706 MMC, 2013 WL 4605362,
at *15–16 (N.D. Cal. Aug. 26, 2013) (same); United States
v. Betters, 229 F. Supp. 2d 1103, 1108 (D. Or. 2002) (same).
Indeed, Deputy Vega’s testimony supported Tekoh’s claim
that he was not free to leave during the interrogation.
Therefore, we cannot conclude “that it is more probable
than not that the jury would have reached the same verdict
had it been properly instructed.” Clem, 566 F.3d at 1182(citation omitted). Because we do not believe that Deputy
Vega has made such a showing, the error was not harmless.
We thus vacate the judgment on the jury’s verdict and
remand the case for a new trial, in which the jury must be
properly instructed that the introduction of a defendant’s un-
Mirandized statement at his criminal trial during the
prosecution’s case in chief alone is sufficient to establish a
Fifth Amendment violation.
IV.
Because we remand for a new trial, we need not reach
the question of whether the district court abused its
discretion by excluding the testimony of Tekoh’s coerced
confession expert, Dr. Blandon-Gitlin. On remand, we leave
it to the district court to consider whether the expert should
be permitted to testify given the questions that remain.
V.
We vacate the judgment on the jury’s verdict, reverse the
district court’s judgment as to Tekoh’s requested jury
instruction, and remand the case for a new trial, in which the
jury must be properly instructed that the introduction of a
defendant’s un-Mirandized statement at his criminal trial
during the prosecution’s case in chief is alone sufficient to
28 TEKOH V. COUNTY OF LOS ANGELES
establish a Fifth Amendment violation and give rise to a
§ 1983 claim for damages. The parties shall bear their own
costs of appeal.
VACATED; REVERSED AND REMANDED