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 D.C. No.

Angeles County Sheriff’s  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
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

16786 AGUILERA v. BACA
COUNSEL

Elizabeth J. Gibbons, Encino, California, for the plaintiffsappellants. 

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 officers, 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 connection 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, regulation, custom, or usage, of any State . . . , subjects, or causes to

16790 AGUILERA v. BACA
Amendment right to be free from unreasonable seizures, their

Fifth Amendment due process right against compelled selfincrimination, and their Fourteenth Amendment due process

rights to be free from coercive police questioning and governmental conduct that shocks the conscience. We have jurisdiction 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 hospitalized 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 superiors, 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. 

AGUILERA v. BACA 16791
the focus of an internal criminal investigation. The Los Angeles 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 termination; and the Internal Criminal Investigation Bureau

(“ICIB”), which only investigates allegations of a criminal

nature for presentation to prosecuting attorneys who can pursue 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 Procedures, 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 compensates its personnel at overtime rates. The deputies had

received training on how to manage and process persons suspected of criminal activity. 

While the deputies waited at the station to be interviewed,

they were told to remain in the report writing room, the basement 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 intermittently 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.

16792 AGUILERA v. BACA
While waiting to be interviewed, the deputies completed overtime 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, Captain 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

AGUILERA v. BACA 16793
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 concede that the Department could change their shifts and assignments 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 communicated and met with approximately two dozen individuals;

reviewed Department files and audiotapes; and gathered medical 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, Carrillo 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 statement used against him or her in a criminal proceeding. Within

2Certain 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. 

16794 AGUILERA v. BACA
days of providing their compelled statements to the investigators, 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 defendant supervisors are entitled to qualified immunity. First, we

determine whether the supervisors violated the deputies’ constitutional rights. See id. If we answer in the affirmative, we

proceed to determine whether that right was “clearly established” 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 constitutional 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 station pending questioning amounted to an impermissible seizure under the Fourth Amendment. We have not, before

AGUILERA v. BACA 16795
today, had occasion to address whether and under what circumstances 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 officer’s possible official misconduct triggering a criminal investigation. “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 authority 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 consensual 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 “policemen, like teachers and lawyers, are not relegated to a watereddown 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 subordinate, 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

16796 AGUILERA v. BACA
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 conditions 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 enforcement 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 Milwaukee, 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 intelligence 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

3The 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 custody, 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 encountering a police investigation for the first time. Further, the existence of a collective 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. 

AGUILERA v. BACA 16797
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 Driebel, 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.4See 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 selfincrimination 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 distinguish 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); Garrity, 385 U.S. at 493. 

In identifying which circumstances are most salient to our

4A 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. 

16798 AGUILERA v. BACA
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 involving the acquisition by police officers of unregistered firearms

from nefarious sources. The court determined that two officers 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 subordinate 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 subordinate 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 attorney or union representative, see id. at 648; the subordinate

officer’s ability to retain law enforcement equipment, including weapons and badges, see id. at 643, 648, 649 n.16; the

duration of detention, see id. at 646; and the subordinate officer’s receipt of overtime pay, see id. at 643. 

AGUILERA v. BACA 16799
[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 Department’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, booking them, and inventorying their possessions. The deputies

must have been aware that, without probable cause, no superior officer was permitted to use force or any show of authority 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 transported to the station against their will. They were not held in

a cell, but rather in unlocked rooms with intermittent supervision. 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 unaccompanied. The deputies were not prevented from phoning their

attorney or union representative for legal or contractual advice

16800 AGUILERA v. BACA
and remained in possession of their Department-issued equipment, including weapons and badges. The deputies were

never touched or threatened with physical restraint. They

were not isolated from one another or prohibited from speaking 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 overtime. In short, the deputies were not treated like criminal suspects, and they should have known—given their training,

years on the force, and familiarity with Department procedures 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, Captain Angel, the highest ranking officer at the station, conveyed

in a “harsh, accusatory tone” his belief that one of the deputies 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 contractual rights under the circumstances. We believe that a reasonable 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 discipline 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

AGUILERA v. BACA 16801
their supervisors’ order to remain at work into a seizure cognizable 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 internal 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 agency’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 investigation 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 practices that are designed to preserve and maintain security, confidentiality, 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 Fourteenth 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

16802 AGUILERA v. BACA
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 Sanitation, 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 incriminatory 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 immunized”). 

[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 constitutional violation arose not when a public employee was compelled to answer job-related questions, but when that

employee was required to waive his privilege against selfincrimination while answering his employer’s legitimate jobrelated questions. See 392 U.S. at 278. If the officer “had

refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the

use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege against self-incrimination would

not have been a bar to his dismissal.” Id. (footnote and citation 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 potentially 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

AGUILERA v. BACA 16803
the Fifth Amendment self-incrimination clause). “This language 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 deputies’ 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 implicated by the supervisors’ conduct. See Hill v. Johnson, 160

F.3d 469, 471 (8th Cir. 1998) (holding that “[t]he Fifth

5Our 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 something other than giving a command to a subordinate.” Dissent at 16813.

However, as the Supreme Court emphasized in Gardner, the Constitution 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 questions. 392 U.S. at 278. Although there may have been some initial coercion 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 potentially 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. 

16804 AGUILERA v. BACA
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 officers had not been asked to waive their privilege against selfincrimination and the questions posed to them were narrowly

job-related).6 It is of no moment that refusing to answer the

6The 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 proceedings” before taking disciplinary action against the employee for refusing 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 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.” 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 continually glosses over critical facts. Although it notes that Miranda warnings 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 supervisors, would be unnecessarily harsh and in contravention of basic qualiAGUILERA v. BACA 16805
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 statements in a criminal case against the witness.” Only after a

compelled incriminating statement is used in a criminal proceeding 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) (discussing 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. 

7The dissent bemoans this dicta statement because the Supreme Court

has rejected the notion that actions short of firing a public employee cannot 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 deputies] for asserting their constitutional rights.” Dissent at 16817. 

8Agreeing 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). 

16806 AGUILERA v. BACA
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 concluding that the supervisors’ conduct did not violate the deputies’ 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. 

9The 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. 

AGUILERA v. BACA 16807
VI

[15] The district court disregarded police reports of Sergeant Kagy’s internal investigation, which documented the

allegations against the deputies, on the basis that they constituted 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 deputies of the alleged misconduct on a date much earlier than

that on which their former field duties were restored. However, 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

16808 AGUILERA v. BACA
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 prosecuting 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 precarious situation by forcing him to choose between disobeying an order from his employer and giving up the

constitutional privilege against self-incrimination. In such situations, 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 dealing 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,

AGUILERA v. BACA 16809
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 selectively. 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. Driebel 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 investigation, 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 language 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, plaintiffs 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

16810 AGUILERA v. BACA
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 criminal 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 officers 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

AGUILERA v. BACA 16811
about a year—until defendants explicitly ordered them to provide 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 reasonably 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 officers 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

16812 AGUILERA v. BACA
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 Captain 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 criminal investigations related to their official duties. See Minnesota 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

AGUILERA v. BACA 16813
didn’t have immunity, thus making it unconstitutional for

defendants to punish them for refusing to make selfincriminating 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 Weston 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 self1State 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). 

16814 AGUILERA v. BACA
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 Murphy 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 justification for forcing the employee to guess whether or not

he’s been given an order and, hence, whether he has immunity. 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 public 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., dissenting); 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

AGUILERA v. BACA 16815
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 situations, 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 someone 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 judgment). The majority tries to import the Chavez rule—a Fifth

Amendment violation can only occur when a selfincriminating 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 employees . . . to induce them to waive their immunity.” Id. at 768

n.2 (plurality opinion). So, under Chavez, the Fifth Amendment 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. 

16816 AGUILERA v. BACA
d. Fourth, contrary to Supreme Court precedent, the majority would only find unconstitutional retaliation for actions

taken against public employees that are the “equivalent to losing 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 employee’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 prestigious 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 [constitutional] rights,” violates the Constitution. Id. at 76 n.8 (internal

quotation marks omitted). 

Defendants are not entitled to qualified immunity on plaintiffs’ Fifth Amendment claims, because it was “clearly established,” 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 Independence, 445 U.S. 622, 650 (1980), so plaintiffs should likewise 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 therefore 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

2Because I would hold that plaintiffs could establish a Fifth Amendment

violation, the district court’s exclusion of Sergeant Kagy’s ICIB report

AGUILERA v. BACA 16817
* * *

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 purpose 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). 

16818 AGUILERA v. BACA