FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERENCE B. TEKOH,

Plaintiff-Appellant,

v.

COUNTY OF LOS ANGELES; DENNIS 

STANGELAND, Sergeant; CARLOS 

VEGA, Deputy,

Defendants-Appellees,

and

LOS ANGELES COUNTY SHERIFF’S 

DEPARTMENT; DOES, 1 TO 10,

Defendants.

No. 18-56414

D.C. No.

2:16-cv-07297-

GW-SK

ORDER

Filed June 3, 2021

Before: Kim McLane Wardlaw, Mary H. Murguia, and

Eric D. Miller, Circuit Judges.

Order;

Concurrence by Judge Miller;

Dissent by Judge Bumatay
2 TEKOH V. COUNTY OF LOS ANGELES

SUMMARY*

Civil Rights

The panel denied a petition for panel rehearing, denied a 

petition for rehearing en banc on behalf of the court, and 

ordered that no further petitions shall be entertained.

The panel opinion 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 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 42 U.S.C. § 1983. 

Concurring in the denial of rehearing en banc, Judge 

Miller, joined by Judges Wardlaw and Murguia, stated that 

the Supreme Court’s cases—most importantly, its 

reaffirmation of Miranda in Dickerson v. United States, 530 

U.S. 428 (2000)—made clear that the right guaranteed by 

* 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

Miranda v. Arizona, 384 U.S. 436 (1966), is among the 

“rights, privileges, or immunities secured by the 

Constitution and laws,” so that 42 U.S.C. § 1983 provides a 

remedy when the prosecution introduces a defendant’s unMirandized statement in its case in chief at his criminal trial.

Dissenting from the denial of rehearing en banc, Judge 

Bumatay, joined by Judges Callahan, Ikuta, Bennett, 

R. Nelson, Bress and VanDyke, stated that given the text and 

history of the Self-Incrimination Clause and the 

overwhelming weight of Supreme Court precedent, the court 

was wrong to rule that the lack of Miranda warnings by itself 

violates the Constitution for purposes of § 1983. Rather, 

Miranda is a procedural safeguard and the remedy for its 

violation is exclusion, not a § 1983 action.

COUNSEL

Paul Hoffman (argued) and John Washington, Schonbrun 

Seplow Harris Hoffman & Zeldes 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 Purcell & Diggs APLC, Los Angeles, California, for 

Defendants-Appellees.
4 TEKOH V. COUNTY OF LOS ANGELES

ORDER

Judges Wardlaw, Murguia, and Miller have voted to 

deny the petition for rehearing en banc. The full court was 

advised of the petition for rehearing en banc. A judge 

requested a vote on whether to rehear the matter en banc. 

The matter failed to receive a majority of the votes of the 

nonrecused active judges in favor of en banc consideration. 

Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. A 

concurrence in the denial by Judge Miller and a dissent from 

the denial by Judge Bumatay are filed concurrently with this 

order. No further petitions for rehearing or rehearing en 

banc will be entertained.

Judge Collins did not participate in the consideration of 

the petition for rehearing en banc.

IT IS SO ORDERED.

MILLER, Circuit Judge, with whom WARDLAW and 

MURGUIA, Circuit Judges, join, concurring in the denial of 

rehearing en banc:

The issue here is whether the right guaranteed by 

Miranda v. Arizona, 384 U.S. 436 (1966), is among the 

“rights, privileges, or immunities secured by the 

Constitution and laws,” so that 42 U.S.C. § 1983 provides a 

remedy when the prosecution introduces a defendant’s unMirandized statement in its case in chief at his criminal trial. 

The Supreme Court’s cases—most importantly, its 

reaffirmation of Miranda in Dickerson v. United States, 

530 U.S. 428 (2000)—make clear that the answer is yes.
TEKOH V. COUNTY OF LOS ANGELES 5

Today’s dissenters invoke the history of the Fifth 

Amendment in arguing that the answer should be no. They 

also find support for their position in Supreme Court cases 

that use language that is arguably in tension with the holding 

of Dickerson. But even if we were to sit en banc, we would 

remain judges of a “[t]ribunal[] inferior to the [S]upreme 

Court.” U.S. Const. art. I, § 8, cl. 9. As such, we lack 

authority to resolve contradictions in the Supreme Court’s 

precedents. To the contrary, we have repeatedly been 

admonished that “[i]f a precedent of [the Supreme] Court has 

direct application in a case, yet appears to rest on reasons 

rejected in some other line of decisions, the Court of Appeals 

should follow the case which directly controls.” Rodriguez 

de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 

(1989); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005); State 

Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

For more than 50 years, there has been a robust debate 

about the conceptual underpinnings of Miranda. It is neither 

necessary nor appropriate for us to try to resolve that debate. 

In particular, the “text and history of the Fifth Amendment” 

(Dissent at 12) and the “long history of the common law 

right” that preceded it (Dissent at 19) are irrelevant to the 

question before us. That is not to deny that text and history 

are important to constitutional interpretation—they surely 

are. It is merely to recognize that the Supreme Court has 

already done the necessary constitutional interpretation. 

Like it or not, Miranda was not an originalist decision. That 

is one of the reasons why Justice Scalia criticized it—in a 

phrase echoed by today’s dissenters—as “a milestone of 

judicial overreaching.” Dickerson, 530 U.S. at 465 (Scalia, 

J., dissenting); cf. Dissent at 11–12. But we are not 

dissenting Supreme Court Justices. As individuals, we are 

free to criticize Miranda, but as a court, our task is simply to 

interpret and apply it.
6 TEKOH V. COUNTY OF LOS ANGELES

It is true that the Supreme Court has described Miranda

as a “prophylactic” rule, and that the prophylactic nature of 

Miranda has been important to many of the Court’s 

decisions narrowing Miranda’s scope. For example, the 

Court has held that a statement obtained in violation of 

Miranda may be introduced for impeachment purposes, 

Oregon v. Hass, 420 U.S. 714 (1975); that there is a “public 

safety” exception to the warning requirement, New York v. 

Quarles, 467 U.S. 649 (1984); and that Miranda does not bar 

the introduction of a post-warning confession obtained as the 

fruit of an earlier un-Mirandized statement, Oregon v. 

Elstad, 470 U.S. 298 (1985). Surveying those decisions in 

his Dickerson dissent, Justice Scalia argued that “it is simply 

no longer possible for the Court to conclude . . . that a 

violation of Miranda’s rules is a violation of the 

Constitution.” 530 U.S. at 454. But as he went on to say, 

“that is what is required before the Court may disregard a 

law of Congress governing the admissibility of evidence in 

federal court”—which is precisely what the Court did. Id.

Justice Scalia’s arguments in Dickerson highlight a 

tension in the Court’s jurisprudence. As today’s dissent 

demonstrates, one can begin with the cases treating Miranda

as a prophylactic rule and reason to the conclusion that the 

doctrine must not be required by the Constitution. But if that 

were so, then Congress would be able to alter it, and 

Dickerson would have come out the other way. The 

dissenters evidently agree with Justice Scalia’s reasoning, 

and some of us, or at least one of us, find it compelling as 

well, but it is not up to this court to resolve the tension he 

identified. Instead, we must “follow the case which directly 

controls.” Rodriguez de Quijas, 490 U.S. at 484. Here, that 

case is Dickerson, which proves that Miranda announced a 

constitutional rule. We know that not just because of what 

the Court said—“Miranda announced a constitutional rule,” 
TEKOH V. COUNTY OF LOS ANGELES 7

530 U.S. at 444—but because of what it did: strike down an 

Act of Congress purporting to abolish Miranda. If Miranda

is not “secured by the Constitution,” 42 U.S.C. § 1983, then 

why is Congress not allowed to dispense with it?

If further proof were needed, we supply it every time we 

review a Miranda claim in a habeas challenge to a state 

conviction. See Withrow v. Williams, 507 U.S. 680 (1993). 

In language strikingly similar to that of section 1983, the 

habeas statute makes relief available to state prisoners only 

if they are in custody “in violation of the Constitution or laws 

or treaties of the United States.” 28 U.S.C. § 2254(a). No one 

thinks Miranda comes from a treaty, so a Miranda violation 

must be a “violation of the Constitution or laws.” The 

Miranda right, therefore, must be one of those rights 

“secured by the Constitution and laws.” 42 U.S.C. § 1983.

It will not do to say that Miranda is merely a “rule,” as 

if that were different from a “right,” “privilege,” or 

“immunity.” To be sure, the Supreme Court has held that 

section 1983 is not available to a plaintiff who complains of 

the violation of a statute that creates abstract interests but not 

“individually enforceable private rights.” Gonzaga Univ. v. 

Doe, 536 U.S. 273, 283, 290 (2002). Those cases do not 

apply here because Miranda indisputably creates individual 

legal rights that are judicially enforceable. (Any prosecutor 

who doubts this can try to introduce an un-Mirandized

confession and then watch what happens.) The Supreme 

Court observed in Withrow that Miranda “differs from” the 

Fourth Amendment exclusionary rule precisely because that 

rule, unlike Miranda, “is not a personal constitutional right.” 

507 U.S. at 691 (quoting Stone v. Powell, 428 U.S. 465, 486 

(1976)). Miranda therefore fits comfortably within the 

ordinary understanding of a “right.” See id. (“‘Prophylactic’ 

though it may be, . . . Miranda safeguards ‘a fundamental 
8 TEKOH V. COUNTY OF LOS ANGELES

trial right.’” (emphasis omitted) (quoting United States v. 

Verdugo-Urquidez, 494 U.S. 259, 264 (1990))).

The Supreme Court’s cases since Dickerson do not alter 

this analysis. Applying the rule of Marks v. United States, 

430 U.S. 188 (1977), to the fractured decisions in Chavez v. 

Martinez, 538 U.S. 760 (2003), and United States v. Patane, 

542 U.S. 630 (2004), yields no holding that unsettles 

Dickerson. While the decisions might be taken to have 

“persuasive force” (Dissent at 24) as indications of how to 

count votes and predict how the Supreme Court will 

someday rule, making such predictions is the role of 

academics and journalists, not circuit judges. Our duty is to 

follow what the Supreme Court has done, not forecast what 

it might do.

Finally, even if everything I have said so far is wrong, it 

would not mean that this case “involves a question of 

exceptional importance” warranting rehearing en banc. Fed. 

R. App. P. 35(a)(2). The circuit split is not nearly as lopsided 

as the dissenters assert. They make it appear so only by 

counting three circuits’ worth of unpublished decisions and, 

for good measure, throwing in decisions that preceded 

Dickerson or that did not involve the introduction of unMirandized statements at trial but instead involved only the 

failure to give warnings—an issue the panel expressly 

declined to address. See Tekoh v. County of Los Angeles, 

985 F.3d 713, 724 (9th Cir. 2021) (“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.”); see 

also Chavez, 538 U.S. at 769 (plurality opinion); Elstad, 

470 U.S. at 306 n.1. As the panel explained, our decision is 
TEKOH V. COUNTY OF LOS ANGELES 9

aligned with most of the circuits that have considered the 

issue after Dickerson and Chavez. See Tekoh, 985 F.3d 

at 723. But more importantly, whatever the tally of circuits, 

everyone agrees that we are not alone (Dissent at 25–26), so 

granting rehearing en banc would not eliminate the conflict 

but at most would simply move us from one side to the other. 

Nor do the dissenters suggest that the panel’s decision, the 

product of a quirky set of facts that required us to confront 

this issue for the first time in the five decades since Miranda

was decided, threatens to bury the district courts of the 

western United States beneath an avalanche of section 1983 

Miranda litigation.

There remains only the objection that “our interpretation 

of the Self-Incrimination Clause is detached from text and 

history.” (Dissent at 26). That is a complaint about Miranda 

and Dickerson, not the decision here. Perhaps the defendants 

will find it helpful in preparing a petition for a writ of 

certiorari, but it is a poor reason to grant rehearing en banc.

BUMATAY, Circuit Judge, joined by CALLAHAN, 

IKUTA, BENNETT, R. NELSON, BRESS, and 

VANDYKE, dissenting from the denial of rehearing en 

banc:

Most Americans can likely recite the Miranda warnings 

by heart: the right to remain silent, that any statements given 

can be used against you, the right to an attorney during 

questioning, and the right to have an attorney appointed. 

Many also know that the Supreme Court announced these 

warnings in the watershed case, Miranda v. Arizona,

384 U.S. 436 (1966). But few, I venture to guess, can 

identify the origin and nature of the warnings. Is Miranda a 

right mandated by the Fifth Amendment’s Self-
10 TEKOH V. COUNTY OF LOS ANGELES

Incrimination Clause? Or are the warnings prophylactic 

rules created by judges to safeguard the people’s rights?

Terence Tekoh asks us to resolve these questions. A 

police officer questioned him about a crime committed at the 

hospital where he worked. Tekoh agreed to speak with the 

officer, but the officer never gave him the Miranda 

warnings. Tekoh eventually confessed to the crime. He was 

charged, tried, and acquitted—even after the introduction of 

his confession at trial.

Following his acquittal, Tekoh sued the officer under 

42 U.S.C. § 1983, alleging a violation of his Fifth 

Amendment right. At trial, Tekoh argued that it was enough 

for him to prevail if he proved that the officer obtained his 

confession without providing him Miranda warnings. The 

district court disagreed, instructing the jury that the officer 

violated Tekoh’s Fifth Amendment right only if the officer 

coerced Tekoh into confessing under the totality of the 

circumstances. In other words, the district court determined 

that the lack of Miranda warnings was a factor for a Fifth 

Amendment violation, but it did not violate the right in and 

of itself. The jury returned a full defense verdict, and Tekoh 

appealed.

The central issue in this case, therefore, is whether 

Miranda warnings amount to a constitutional right. The 

question is important because § 1983 only provides a cause 

of action for violating “any rights, privileges, or immunities 

secured by the Constitution and laws.” 42 U.S.C. § 1983. 

Section 1983 won’t support liability for violating anything 

less than a “right”—like prophylactic rules.
TEKOH V. COUNTY OF LOS ANGELES 11

Before reaching this question, we should have heeded 

what the Supreme Court has said about the matter. Many 

times, the Court has discussed the nature of Miranda. And 

the answer could not be clearer:

The Court has described Miranda warnings as

“prophylactic” at least 21 times and called them a 

“constitutional right” zero times.

With this background, this should have been a 

straightforward case. Under Supreme Court precedent, a 

Miranda warning is not a constitutional right, and we should 

have affirmed the judgment accordingly. But that is not 

what happened. Our court reversed, holding that Tekoh need 

only show that his confession was taken in violation of 

Miranda and later used against him in a criminal proceeding 

to prove his § 1983 claim. That is because, we said, Miranda

was indeed a “right secured by the Constitution.” Tekoh v. 

County of Los Angeles, 985 F.3d 713, 720 (9th Cir. 2021).

Rather than following the overwhelming weight of 

Supreme Court authority, we justify our decision with 

cherry-picked lines from a few cases—though none (save the 
12 TEKOH V. COUNTY OF LOS ANGELES

Seventh Circuit) directly hold as we do today. In doing so, 

we also place ourselves at direct odds with six of our fellow 

circuit courts. And so yet again, our court embarks on brazen 

judicial overreach.

To be clear, this case has nothing to do with whether 

Miranda warnings are required before custodial 

interrogation—they are. Neither does it deal with whether 

un-Mirandized statements must be excluded from the 

government’s case-in-chief—Supreme Court case law says 

they should be. Nor does this case ask whether Tekoh was 

coerced into confessing—our court deemed coercion 

irrelevant. Instead, the narrow question before the court was 

whether the introduction of an un-Mirandized statement at 

trial alone constitutes the violation of a “right” secured by 

the Constitution. Our court’s answer? Yes, the lack of 

Miranda warnings violates the Fifth Amendment even if 

subsequent statements were freely and voluntarily given. In 

adopting this novel reading of Miranda, our court 

contravenes the text and history of the Fifth Amendment and 

the undeniable weight of precedent. Along the way, our 

court’s decision pushes us further than others in rewriting the 

Fifth Amendment.

For this reason, I respectfully dissent from the denial of 

rehearing en banc.

I.

A.

The Fifth Amendment’s Self-Incrimination Clause 

provides that “[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself.” U.S. Const. 

amend. V. The text of the Amendment does not provide for 

a right to receive warnings before interrogation by a law 
TEKOH V. COUNTY OF LOS ANGELES 13

enforcement officer, as envisioned by Miranda. Rather, the 

Fifth Amendment enshrined the “ancient” English common 

law right against self-incrimination known as nemo tenetur 

seipsum prodere (“no man shall be compelled to criminate 

himself”). See John H. Wigmore, Nemo Tenetur Seipsum 

Prodere, 5 Harv. L. Rev. 71, 71 (1891); Brown v. Walker, 

161 U.S. 591, 596–97 (1896). Under that maxim, “a 

confession forced from the mind by the flattery of hope, or 

by the torture of fear, comes in so questionable a shape when 

it is to be considered as the evidence of guilt, that no credit 

ought to be given to it; and therefore it is rejected.” R v.

Warickshall (1783), 168 Eng. Rep. 234, 235; 1 Leach 263, 

263–64.

What originated in the old world quickly made its way 

over the Atlantic. By the Founding, “the principle of the 

nemo tenetur maxim was simply taken for granted and so 

deeply accepted that its constitutional expression had the 

mechanical quality of a ritualistic gesture in favor of a selfevident truth needing no explanation.” Leonard W. Levy, 

Origins of the Fifth Amendment 430 (1968). Well before the 

Constitution was ratified, the right was ubiquitous: each of 

the eight states that had a separate bill of rights prohibited 

compelled self-incrimination. Id. at 412. Among the first 

proposed amendments to the federal Constitution was the 

right against self-incrimination. See id. at 422–23; see also 

Brown, 161 U.S. at 597 (noting that the maxim, “which in 

England was a mere rule of evidence, became clothed in this 

country with the impregnability of a constitutional 

enactment”). Justice Story confirmed that the SelfIncrimination Clause was “but an affirmance of a common 

law privilege.” 3 Joseph Story, Commentaries on the 

Constitution of the United States § 1782, at 660 (Boston, 

Hilliard, Gray & Co. 1833).
14 TEKOH V. COUNTY OF LOS ANGELES

The right’s focus on voluntariness remained throughout 

the transition from English to American common law. An 

early American treatise explained that “a confession, in 

order to be admissible, must be free and voluntary: that is, 

must not be extracted by any sort of threats or violence, nor 

obtained by any direct or implied promises, however slight, 

nor by the exertion of any improper influence.” 2 William 

Oldnall Russell & Charles Sprengel Greaves, A Treatise on 

Crimes and Misdemeanors 826 (5th Am. ed., 1845) 

(emphasis omitted).

Early precedent confirmed the basic common law 

understanding of the Clause—that its lodestar is 

voluntariness, not prophylaxis. According to Chief Justice 

Marshall, it was “a settled maxim of law that no man is 

bound to criminate himself,” and that if a person’s answer to 

a question might incriminate him, “it must rest with himself,

who alone can tell what it would be, to answer the question 

or not.” United States v. Burr, 25 F. Cas. 38, 39–40 (C.C.D. 

Va. 1807).

While legitimate debate may remain around its scope, as 

a matter of history, the right against self-incrimination did 

not include the right to be given particular warnings before 

custodial interrogation may begin. From the Fifth 

Amendment’s ratification to the mid-20th century, neither 

the text nor the common law right was understood to require 

law enforcement officers to give such warnings.

B.

It was not until almost 200 years after our Founding that 

the Supreme Court announced the requirement of Miranda

warnings in 1966. Miranda, 384 U.S. 436. That decision, 

however, does not suggest that Miranda warnings are part of 

the Fifth Amendment. Instead, the opinion explicitly refers 
TEKOH V. COUNTY OF LOS ANGELES 15

to the Miranda rules, not as a constitutional right, but as 

“procedural safeguards effective to secure the privilege 

against self-incrimination.” Id. at 444 (emphasis added). 

Thus, Miranda itself offers no reason to conclude that it 

announced a constitutional right.

In Miranda, the Supreme Court began by raising 

concerns with the police tactics used to obtain confessions 

from those in custody. Id. at 445–55. Recounting the 

various psychological measures employed, the Court was 

alarmed that police regularly “persuade, trick, or cajole 

[those in custody] out of exercising [their] constitutional 

rights.” Id. at 455. The Court decried the “interrogation 

environment . . . created for no purpose other than to 

subjugate the individual to the will of his examiner.” Id. 

at 457. To counter these tactics, the Court warned that 

“adequate protective devices” are necessary to counter “the 

compulsion inherent in custodial surroundings” and to 

ensure that statements made in custody are “truly” the 

product of “free choice.” Id. at 458.

The Court thus adopted the requirement of the Miranda

warnings as “proper safeguards” to “combat the[] 

[inherently compelling] pressures” of custodial interrogation 

and to “permit a full opportunity to exercise the privilege 

against self-incrimination.” Id. at 467. The Court was 

concerned that, without such warnings, the accused would 

be “compel[led] . . . to speak where he would not otherwise 

do so freely.” Id.

Importantly, the Court did not state that the Miranda

warnings were anything more than prophylactic. It even 

refused to say that “the Constitution necessarily requires 

adherence to any particular” pre-interrogation procedures. 

Id. Instead, the Court was open to federal and state 

governments devising “potential alternatives for protecting 
16 TEKOH V. COUNTY OF LOS ANGELES

the privilege” outside of Miranda warnings. Id. Indeed, the 

Court clarified that its “decision in no way creates a 

constitutional straitjacket.” Id. Nothing in Miranda itself, 

therefore, can be said to constitutionalize its eponymous 

warnings.

This understanding of Miranda as prophylactic 

continued in the decades that followed. For example, in

Michigan v. Tucker, 417 U.S. 433 (1974), the Court 

described the Miranda warnings as merely a “supplement” 

to constitutional doctrine, not doctrine itself. Id. at 443. The 

Court noted that Miranda “established a set of specific 

protective guidelines” that would “help police officers 

conduct interrogations without facing a continued risk that 

valuable evidence would be lost.” Id. And it distinguished

between police conduct that deprives a person of their 

“privilege against compulsory self-incrimination” and police 

conduct that failed to provide “the full measure of procedural 

safeguards associated with that right.” Id. at 444. So, even 

though the suspect in Tucker did not receive the entire 

complement of Miranda warnings, the Court refused to 

exclude his statements since his interrogation was not 

coercive. Id. at 445, 452.

The Court emphasized this same understanding of 

Miranda in New York v. Quarles, 467 U.S. 649 (1984). In 

that case, an officer asked a suspect where he disposed of a 

firearm before formally placing the suspect under arrest and 

before administering Miranda warnings. Id. at 652. Holding 

the suspect’s answer admissible, the Court explained that 

“absent some officially coerced self-accusation, the Fifth 

Amendment privilege is not violated by even the most 

damning admissions.” Id. at 654 (simplified); see id. at 659. 

The Court then reaffirmed that Miranda’s prophylactic 

warnings are “not themselves rights protected by the 
TEKOH V. COUNTY OF LOS ANGELES 17

Constitution but are instead measures to insure that the right 

against compulsory self-incrimination is protected.” Id.

at 654 (simplified). Rather than being a constitutional right, 

Miranda warnings provide mere “practical reinforcement 

for the Fifth Amendment right.” Id. (simplified). With no 

coercion in the case, the Court created the “public safety” 

exception to Miranda warnings. Id. at 655–56. It explained 

that in some situations, “a threat to the public safety 

outweighs the need for the prophylactic rule protecting the 

Fifth Amendment’s privilege against self-incrimination.” 

Id. at 657.

A few years later in Oregon v. Elstad, 470 U.S. 298 

(1985), the Court held that, without coercion, an initial 

failure to administer Miranda warnings did not taint a 

suspect’s subsequent, Mirandized admission. Id. at 312–14. 

As before, the Court reiterated that the Miranda rule “serves 

the Fifth Amendment,” but “sweeps more broadly than the 

Fifth Amendment itself.” Id. at 306. “It may be triggered 

even in the absence of a Fifth Amendment violation,” 

because the Amendment itself is concerned only with 

compelled testimony. Id. at 306–07. As a result, the Court 

explained, “Miranda’s preventive medicine provides a 

remedy even to the defendant who has suffered no 

identifiable constitutional harm.” Id. at 307.

Supreme Court precedent, then, has uniformly 

recognized Miranda rules as prophylactic safeguards of the 

Fifth Amendment right—not a constitutional right in and of 

itself. And contrary to this court’s holding, Dickerson v. 

United States, 530 U.S. 428 (2000), did not change that 

analysis. That case involved a congressional enactment to 

effectively overrule Miranda. Id. at 436 (noting that 18 

U.S.C. § 3501 made “voluntariness” the “touchstone of 

admissibility” without regard for Miranda warnings). The 
18 TEKOH V. COUNTY OF LOS ANGELES

question in Dickerson was whether Congress could 

supersede Miranda. Id. at 437. In answering “no,” the Court 

held that Congress could not legislatively override a 

“constitutional rule,” id. at 441, and described Miranda as a 

“constitutional decision” with “constitutional 

underpinnings,” id. at 438, 440 n.5. Because “Congress may 

not legislatively supersede [the Court’s] decisions 

interpreting and applying the Constitution,” the Court struck 

down the law as unconstitutional. Id. at 437, 444.

Nowhere in the opinion, however, did the Court say that 

the introduction at trial of an un-Mirandized, yet voluntary, 

confession violates the Fifth Amendment by itself. In other 

words, it never described Miranda as a constitutional 

“right,” but called it something different—a “constitutional 

rule.” Critically, the Court recognized just this: the dissent 

invited the Dickerson majority to “hold that the Miranda

warnings are required by the Constitution” to avoid “judicial 

overreach[].” Id. at 442.1

 But the majority expressly 

declined that invitation and simply denied that it was 

overreaching, responding, “we need not go further than 

Miranda to decide this case.” Id. The Court thus 

acknowledged that holding that the Constitution itself 

1 In dissent, Justice Scalia accused the majority of exercising “an 

immense and frightening antidemocratic power” by striking down an Act 

of Congress for violating a “constitutional rule.” Dickerson, 530 U.S. 

at 445–46 (Scalia, J., dissenting). Justice Scalia invited the majority to 

take the opinion “out of the realm of power-judging and into the 

mainstream of legal reasoning” by simply declaring that Miranda was in 

fact a constitutional right. Id. at 446. He observed that the majority 

“cannot say that, because a majority of the Court does not believe it.” Id. 

In his view, since the Court can only nullify statutes in contravention of 

the Constitution, the Dickerson majority acted “in plain violation of the 

Constitution.” Id.
TEKOH V. COUNTY OF LOS ANGELES 19

required pre-interrogation warnings would go further than 

Miranda, and it refused to do so.

C.

Given the text and history of the Self-Incrimination 

Clause and the overwhelming weight of Supreme Court 

precedent, our court was wrong to rule that the lack of 

Miranda warnings by itself violates the Constitution for 

purposes of § 1983. That section provides a civil action 

against state officials who cause a “deprivation of any rights, 

privileges, or immunities secured by the Constitution and 

laws.” 42 U.S.C. § 1983. Miranda warnings are neither 

“rights, privileges, [n]or immunities” under the Constitution; 

so a violation of Miranda alone cannot sustain money 

damages under § 1983.

To begin, the text of the Fifth Amendment in no way 

leads to our court’s contrary reading—it says nothing about 

a pre-interrogation right to be advised of the right against 

self-incrimination. The long history of the common law 

right likewise provides no support for a fundamental right to

be warned. Instead, the text and history show that the SelfIncrimination Clause protects against coerced or compelled 

confessions, and mandates that any statement used against 

an accused at trial be freely and voluntarily given.

And by the plain terms of the Miranda decision and at 

least 21 other Supreme Court cases interpreting it,2 the 

absence of its warnings cannot sustain a claim for money 

damages. These cases all describe the Miranda warnings as 

“prophylactic,” Quarles, 467 U.S. at 654, “procedural 

safeguards,” Miranda, 384 U.S. at 444, or “protective 

2 See chart, supra.
20 TEKOH V. COUNTY OF LOS ANGELES

guidelines,” Tucker, 417 U.S. at 443. Not one of them 

describes Miranda warnings as a “constitutional right.”

This distinction is important because § 1983 only affords 

a cause of action for “the violation of a federal right, not 

merely a violation of federal law.” Blessing v. Freestone, 

520 U.S. 329, 340 (1997); see also Carey v. Piphus, 435 U.S. 

247, 254 (1978) (explaining that the “basic purpose of a 

§ 1983” claim is “to compensate persons for injuries caused 

by the deprivation of constitutional rights”). The Court has 

been clear that “rights” are to be interpreted strictly in the 

§ 1983 context; they don’t include “broader or vaguer 

‘benefits’ or ‘interests.’” Gonzaga Univ. v. Doe, 536 U.S. 

273, 283 (2002). They certainly don’t include “judicially 

created prophylactic rules.” Chavez v. Martinez, 538 U.S. 

760, 780 (2003) (Scalia, J., concurring in part in the 

judgment).

So the central question for the jury on Tekoh’s claim was 

whether the confession admitted at trial was improperly 

coerced, not merely whether Miranda was violated. Of 

course, as the district court recognized, whether Miranda

warnings were given is a factor—but only a factor—in 

determining the voluntariness of Tekoh’s confession under 

the totality of the circumstances.

Dickerson did not change this understanding. In that 

case, the Court expressly affirmed that it was not going 

beyond Miranda. 530 U.S. at 442 (“[W]e need not go further 

than Miranda to decide this case.”). Indeed, Dickerson

quotes Tucker’s language, without qualification, that 

Miranda’s procedural safeguards are “not themselves rights 

protected by the Constitution.” Id. at 438 (quoting Tucker,

417 U.S. at 444). To be sure, Dickerson announces that 

Miranda is a “constitutional rule.” Id. at 428. But that is a 

far cry from elevating it to a “constitutional right”—a 
TEKOH V. COUNTY OF LOS ANGELES 21

promotion that the Court explicitly declined to allow. Id. 

at 442. Accordingly, the best reading of Dickerson is that it 

does not undermine the long line of cases characterizing 

Miranda as a prophylactic rule and not a “constitutional 

right.”

The Court confirmed this understanding in Chavez. In 

that case, a plaintiff brought a § 1983 action against an 

officer for questioning him without Miranda warnings—

much like this case except that his admissions were never 

used against him in criminal proceedings. 538 U.S. at 764–

65 (plurality opinion). A plurality of four Justices reiterated 

that Miranda remained a prophylactic rule and was not a 

constitutional right. Id. at 772. The plurality explained that 

“a violation of the constitutional right against selfincrimination occurs only if one has been compelled to be a 

witness against himself in a criminal case.” Id. at 770 

(emphasis omitted). But “[r]ules designed to safeguard a 

constitutional right . . . do not extend the scope of the 

constitutional right itself.” Id. at 772. As a result, 

“violations of judicially crafted prophylactic rules do not 

violate the constitutional rights of any person.” Id. Because 

Miranda is not a constitutional right, the plurality concluded 

that the failure to provide Miranda warnings “cannot be 

grounds for a § 1983 action.” Id.3

Justice Souter, joined by Justice Breyer, likewise 

concurred in denying relief under § 1983 for violating 

Miranda. See id. at 777 (Souter, J., concurring in the 

judgment). He agreed that Miranda warnings are solely a 

3 Notably, Chief Justice Rehnquist, the author of Dickerson, joined 

Justice Thomas’s plurality opinion in full. 538 U.S. at 763 n.*. So, our 

court’s use of Dickerson to announce a sea-change in Miranda

jurisprudence would be lost on the author of that opinion himself.
22 TEKOH V. COUNTY OF LOS ANGELES

“complementary protection” to and “outside the core” of the 

Fifth Amendment. Id. at 777–78. While noting that the 

“absence of Miranda warnings” as “a basis for a § 1983 

action under any circumstance” was not before the Court, 

Justice Souter questioned the need for civil liability when 

certain non-core Fifth Amendment violations occurred, like 

“whenever the police fail to honor Miranda.” Id. at 778–79,

779 n.* (emphasis added). He noted that “[r]ecognizing an 

action for damages in [such a case] not only would 

revolutionize Fifth . . . Amendment law,” but would have to 

be justified as “necessary in aid of the basic guarantee.” Id. 

at 779. But there was “no reason to believe” an extension of 

§ 1983 to Miranda was necessary, because existing 

measures such as “excluding testimonial admissions” had 

been sufficient. Id. While there was “no failure of efficacy 

infecting . . . Fifth Amendment law” requiring an extension 

of § 1983, Justice Souter departed from the plurality and 

suggested that the particular “outrageous conduct” by the 

police in Chavez could give rise to a separate § 1983 claim 

under substantive due process (a separate claim Tekoh did 

not raise). Id.

Chavez thus removes any doubt over whether Tekoh can 

bring a § 1983 action for violating Miranda. After Chavez, 

“it is now clear that there is no cause of action for money 

damages for violations of Miranda.” Erwin Chemerinsky, 

Federal Jurisdiction § 8.9, at 631–32 (8th ed. 2021); see also 

Renda v. King, 347 F.3d 550, 558 (3d Cir. 2003) (“[S]ix 

Justices (Chief Justice Rehnquist, together with Justices 

Thomas, O’Connor, Scalia, Souter, and Breyer) agreed that 

mere custodial interrogation absent Miranda warnings is not 

a basis for a § 1983 claim.”).

The year after Chavez, the Court again reinforced the 

“prophylactic” nature of Miranda post-Dickerson. See
TEKOH V. COUNTY OF LOS ANGELES 23

United States v. Patane, 542 U.S. 630, 636, 639 (2004) 

(plurality opinion). At issue was whether physical evidence 

obtained as the fruit of an unwarned, but voluntary, 

statement was admissible. Id. at 633–34. A plurality of three 

Justices explained that “a mere failure to give Miranda

warnings does not, by itself, violate a suspect’s 

constitutional rights.” Id. at 641. According to the plurality, 

this was “evident in many of [the Court’s] pre-Dickerson

cases,” and the Court has “adhered to this view since 

Dickerson.” Id. The plurality noted that “Dickerson’s 

characterization of Miranda as a constitutional rule does not 

lessen the need to maintain the closest possible fit between 

the Self-Incrimination Clause and any judge-made rule 

designed to protect it.” Id. at 643. And admitting evidence 

that is the fruit of a Miranda violation without more 

“presents no risk that a defendant’s coerced statements . . .

will be used against him at a criminal trial.” Id.

Justice Kennedy, joined by Justice O’Connor, concurred 

and agreed with the majority that Dickerson “did not 

undermine” the Court’s precedents like Elstad and Quarles. 

Id. at 644–45 (Kennedy, J., concurring in the judgment). 

Justice Kennedy only differed from the plurality in 

concluding that it was unnecessary to characterize the 

statements at issue as taken in violation of Miranda. Id. 

at 645.

Contrary to the panel’s holding, then, Chavez and Patane

add to the overwhelming precedent that a Miranda violation 

itself does not violate a constitutional right.4 Rather than 

4 Those two cases are not alone in calling Miranda prophylactic after 

Dickerson. See Montejo v. Louisiana, 556 U.S. 778, 794 (2009) 

(describing Miranda as “prophylactic protection of the right against 

compelled self-incrimination”); Maryland v. Shatzer, 559 U.S. 98, 103 
24 TEKOH V. COUNTY OF LOS ANGELES

find every which way to distinguish or limit these cases, see 

Tekoh, 985 F.3d at 720–23, our court should have accepted 

their persuasive force and rejected Tekoh’s theory of § 1983 

liability.

Throughout its history, the Fifth Amendment’s 

watchword has been “voluntariness.” Our court’s decision 

substitutes that word with “warnings.” That is simply 

incorrect, as a matter of text, history, and precedent.

D.

The court’s decision today puts us at odds with six other 

circuit courts. The Second, Fifth, Sixth, Eighth, Tenth, and 

Eleventh Circuits hold, as I would, that Miranda is a 

procedural safeguard and the remedy for its violation is 

exclusion, not a § 1983 action. See Dalessio v. City of 

Bristol, 763 F. App’x 126, 127 (2d Cir. 2019) (unpublished) 

(“Dalessio cannot state a Fifth Amendment claim because 

‘the failure to give Miranda warnings does not create 

liability under § 1983.’” (quoting Neighbour v. Covert, 

68 F.3d 1508, 1510 (2d Cir. 1995)) (per curiam)); Foster v. 

Carroll County, 502 F. App’x 356, 358 (5th Cir. 2012) 

(unpublished) (“Violations of the prophylactic Miranda

procedures do not amount to violations of the Constitution 

(2010) (“In [Miranda], the Court adopted a set of prophylactic measures 

to protect a suspect’s Fifth Amendment right from the ‘inherently 

compelling pressures’ of custodial interrogation.” (citation omitted)); 

Florida v. Powell, 559 U.S. 50, 59 (2010) (describing Miranda warnings 

as “procedural safeguards” (simplified)); J.D.B. v. North Carolina, 

564 U.S. 261, 269 (2011) (describing Miranda warnings as “a set of 

prophylactic measures designed to safeguard the constitutional 

guarantee against self-incrimination”); Howes v. Fields, 565 U.S. 499, 

507 (2012) (“Miranda adopted a set of prophylactic measures designed 

to ward off the inherently compelling pressures of custodial interrogation

. . . .” (simplified)).
TEKOH V. COUNTY OF LOS ANGELES 25

itself and, as such, fail to raise a cause of action under 

§ 1983.”); McKinley v. City of Mansfield, 404 F.3d 418, 432 

n.13 (6th Cir. 2005) (“McKinley also argues that Fortney’s 

failure to read him the Miranda warnings at the outset of the 

second interview is actionable under § 1983. On the 

contrary, a § 1983 action on that basis is squarely foreclosed 

by the Supreme Court’s decision two terms ago in Chavez.”); 

Hannon v. Sanner, 441 F.3d 635, 637 (8th Cir. 2006) 

(affirming that “Miranda procedural safeguards are not 

themselves rights protected by the Constitution,” even after 

Dickerson (simplified)); Marshall v. Columbia Lea Reg’l 

Hosp., 345 F.3d 1157, 1165 n.6 (10th Cir. 2003) (explaining 

that “violations of Miranda rights do not subject police 

officers to liability under § 1983” (citing Bennett v. Passic, 

545 F.2d 1260, 1263 (10th Cir. 1976))); Lloyd v. Marshall, 

525 F. App’x 889, 892 (11th Cir. 2013) (unpublished) 

(“[F]ailing to follow Miranda procedures . . . does not 

violate any substantive Fifth Amendment right such that a 

cause of action for money damages under § 1983 is created.” 

(quoting Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 

1999))). Even post-Dickerson, these cases remain the law. 

As a result, our court’s expansive reading of that case is 

wrong.

Contrary to the panel’s position, it appears that the only

out-of-circuit support for the panel’s decision comes from 

the Seventh Circuit. See Sornberger v. City of Knoxville, 

434 F.3d 1006, 1026–27 (7th Cir. 2006). In that case, the 

court permitted a § 1983 claim based on the use of unMirandized statements in probable cause and bail hearings. 

Id. at 1027. Even though the court found the police 

interrogation coercive, it also seemed to allow a stand-alone 

§ 1983 claim for the absence of Miranda warnings. Id.
26 TEKOH V. COUNTY OF LOS ANGELES

In short, our court is out of step with Supreme Court 

precedent and the vast majority of circuit courts around the 

country.

II.

Our decision here sets us apart from others in elevating

Miranda warnings to the level of a constitutional right. By 

seizing on a few lines from a single case, we willfully ignore 

the mountain of Supreme Court precedent to the contrary. 

Worse yet, our interpretation of the Self-Incrimination 

Clause is detached from text and history. Given the clear 

weight of authority against us, we should not have been so 

bold.

I respectfully dissent.