Tekoh v. Cnty. of L. A.
| Decision Date | 03 June 2021 |
| Docket Number | No. 18-56414,18-56414 |
| Citation | 997 F.3d 1260 (Mem) |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges.
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.
The issue here is whether the right guaranteed by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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 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, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) —make clear that the answer is yes.
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 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, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ; accord Tenet v. Doe , 544 U.S. 1, 10–11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) ; State Oil Co. v. Khan , 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (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 1265–66) and the "long history of the common law right" that preceded it (Dissent at 1269) 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, 120 S.Ct. 2326 (Scalia, J., dissenting); cf. Dissent at 1264–66. 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.
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, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) ; that there is a "public safety" exception to the warning requirement, New York v. Quarles , 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (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, 105 S.Ct. 1285, 84 L.Ed.2d 222 (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, 120 S.Ct. 2326. 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, 109 S.Ct. 1917. 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," 530 U.S. at 444, 120 S.Ct. 2326 —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, 113 S.Ct. 1745, 123 L.Ed.2d 407 (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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (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, 113 S.Ct. 1745 (quoting Stone v. Powell , 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ). Miranda therefore fits comfortably within the ordinary understanding of a "right." See id. .
The Supreme Court's cases since Dickerson do not alter this analysis. Applying the rule of Marks v. United States , 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), to the fractured decisions in Chavez v. Martinez , 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), and United States v. Patane , 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004), yields no holding that unsettles Dickerson . While the decisions might be taken to have "persuasive force" (Dissent at 1271–72) 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...
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Vega v. Tekoh
...was denied, but Judge Bumatay, joined by six other judges, filed a dissent from the denial of rehearing. Tekoh v. County of Los Angeles , 997 F.3d 1260, 1261, 1264–1272 (C.A.9 2021). We then granted certiorari. 595 U. S. ––––, 142 S.Ct. 858, 211 L.Ed.2d 533 (2022). II Section 1983 provides ......
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