Bench Memos

Law & the Courts

Ninth Circuit Divides Over Damages Action for Miranda Violation

If you’re not much deeper than I am into the case law on the Miranda warnings, you might want to skip this post. For the remaining readers, please pardon my effort to keep things succinct.

In an order today, the Ninth Circuit, over the vigorous dissent of seven judges, denied rehearing en banc of the panel decision in Tekoh v. County of Los Angeles. In that panel decision, Judge Kim McLane Wardlaw, joined by Judge Mary Murguia and Judge Eric Miller, ruled that when prosecutors have used an un-Mirandized statement to prove a criminal charge against a defendant, that defendant may pursue a damages action under section 1983 against the officer who took the statement.

The two opinions—one concurring, one dissenting—in today’s en banc order clash in particular over Chief Justice Rehnquist’s baffling opinion in Dickerson v. United States (2000). In Dickerson, Rehnquist declined to overrule Miranda v. Arizona (1966), and held that Congress may not supersede it legislatively, even as he (artfully?) avoided declaring that the use at trial of a voluntary but un-Mirandized statement violates the Constitution. Justice Scalia wrote a withering dissent.

In today’s dissent (joined by six colleagues), Judge Patrick Bumatay argues that “Supreme Court precedent … has uniformly recognized Miranda rules as prophylactic safeguards of the Fifth Amendment right [against self-incrimination]—not a constitutional right in and of itself” and that Dickerson “did not change this understanding.” Therefore, the predicate needed for a section 1983 action—a violation of “any rights, privileges, or immunities secured by the Constitution and laws”—is missing.

In his opinion concurring in the denial of rehearing en banc, Judge Miller (joined by Judges Wardlaw and Murguia) says that Dickerson “would have come out the other way” if a violation of Miranda’s rules is not also a violation of the Constitution. He therefore reads Dickerson as necessarily meaning what Rehnquist avoided stating. Noting that the language of the federal habeas statute is “strikingly similar to that of section 1983,” Miller also argues that the fact that a Miranda claim can be pursued under the habeas statute supports the panel’s ruling that it can be pursued under section 1983.

Bumatay and Miller also disagree over whether the panel ruling creates or exacerbates a conflict among the circuits.

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