FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

T ERENCE B. T EKOH , Plaintiff

- Appellant

,

v.

C OUNTY OF L OS A NGELES ; D ENNIS S TANGELAND , Sergeant; C ARLOS V EGA , Deputy, Defendants

- Appellees

,

and

L OS A NGELES C OUNTY S HERIFF ’ S D EPARTMENT ; D OES , 1 TO 10
, Defendants. No. 18

- 56414

D.C. No. 2:16

- cv

- 07297

- GW

- SK

ORDER

Filed J une 3, 2021

Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges.

Order ; Concurrence by Judge Miller;

Dissent by Judge Bumatay2 T EKOH V

. C OUNTY OF L OS A NGELES

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 tr ial 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.

Concurrin g 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 gua ranteed 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.T EKOH V

. C OUNTY OF L OS A NGELES 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 un

Mirandized statement in i ts 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 t he 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 excl usion, not a § 1983 action.

COUNSEL

Paul Hoffman (argued) and John Washington, Schonbrun S eplow 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 T EKOH V

. C OUNTY OF L OS A NGELES

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 entert ained.

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 prosecu tion introduces a defendant’s un

Mirandized 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.T EKOH V

. C OUNTY OF L OS A NGELES 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 Mirand a . 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

— the y 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 ec hoed 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 T EKOH V

. C OUNTY OF L OS A NGELES

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 impea chment 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 th e 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 C ourt 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 demonstra tes, 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 o ut 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 whic h 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,”T EKOH V

. C OUNTY OF L OS A NGELES 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, th erefore, 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 he ld 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 appl y 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 M iranda “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 with in the ordinary understanding of a “right.” See id. (“‘Prophylactic’ though it may be,

. . . Miranda safeguards ‘a fundamental8 T EKOH V

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

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

The Supreme Court’s cas es 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 un

Mirandized 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 isT EKOH V

. C OUNTY OF L OS A NGELES 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
west ern 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 T EKOH V

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Incrimination Clause? Or are the warnings prophylactic rules created by judges to safeguard the peo ple’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 e ventually 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 t rial, 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 rig ht 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 actio n 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.T EKOH V

. C OUNTY OF L OS A NGELES 11

Before reaching this question, we sh ould 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 the m 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 agains t 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

- pick ed lines from a few cases

— though none (save the12 T EKOH V

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Seventh Circuit) directly hold as we do today. In doing so, we also place ourselves at direct odds with six of our fell ow 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

- Mirandi zed 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 sta tements 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 oth ers 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 witne ss 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 lawT EKOH V

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enforcement officer, as envisioned by Miranda . Rather, the Fifth Amendment enshrined the “ancient” Englis h 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 self

evident 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 Self

Incrimination Clause was “but an affirmanc e 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 T EKOH V

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The right’s focus on voluntariness remained throughout the transition from English to American common l aw. 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 t he 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 gi ve 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 refersT EKOH V

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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 o ffers 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 me asures 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 state ments 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 protecting16 T EKOH V

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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 “establis hed 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 “p rivilege 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 M iranda 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

- accusati on, 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 theT EKOH V

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Constitution but a re 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.” I d. (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 protecti ng 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 subs equent, 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 rul es 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 congressiona l 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). The18 T EKOH V

. C OUNTY OF L OS A NGELES

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 “Congre ss 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 o f 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 c onstitution al right

. Id . at 446. He observed that the majority “cannot say that, because a majority of the Court does not believe it.” Id

. I n 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

.T EKOH V

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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 prov ides 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 Constitut ion; 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 sel f

- 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 Self

Incrimination Clause protects against coerced or compelled confessions, and mand ates 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 mon ey 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 T EKOH V

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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 ‘inte rests.’” 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 determin ing 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 s ure, Dickerson announces that Miranda is a “constitutional rule.” Id. at 428. But that is a far cry from elevating it to a “constitutional right”

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promotion that the Court explicitly declined to allow. Id

. at 442. Accordingly , the best reading of Dick erson 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 offic er 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 pr ophylactic rule and was not a constitutional right. Id. at 772. The plurality explained that “a violation of the constitutional right against self

incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.” I d. 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 c onstitutional 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 t he author of that opinion himself.22 T EKOH V

. C OUNTY OF L OS A NGELES

“complementary protection” to and “ou tside 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
certa in non

- core Fifth Amendment violations occurred, like “whenever the police fail to honor Miranda .” Id . at 77 8

– 7 9
, 779 n.* (emphasis added). H e noted that “[r]ecognizing an action for damages in [such a case] not only would revolutionize Fifth

. . . Amend ment 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 Ch avez 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 Jus tice 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

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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 pl urality 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,” an d 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

.
Justi ce 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 i tself 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, 10324 T EKOH V

. C OUNTY OF L OS A NGELES

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.

Th roughout 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 od ds 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 Miran da 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.” (citati on 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 sa feguard 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

. . . . ” (simp lified) )

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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, 63 7 (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 l aw. As a result, o ur 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 un

Mirandized 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 T EKOH V

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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.