Vogt v. City of Hays

• Decision Date: 04 January 2017
• Docket Number: No. 15-3266,15-3266
• Citation: 844 F.3d 1235
• Parties: Matthew Jack Dwight VOGT, Plaintiff–Appellant, v. CITY OF HAYS, KANSAS ; City of Haysville, Kansas ; Don Scheibler; Jeff Whitfield ; Kevin Sexton; Brandon Wright, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

844 F.3d 1235

Matthew Jack Dwight VOGT, Plaintiff–Appellant,

v.CITY OF HAYS, KANSAS ; City of Haysville, Kansas ; Don Scheibler; Jeff Whitfield ; Kevin Sexton; Brandon Wright, Defendants–Appellees.

No. 15-3266

United States Court of Appeals, Tenth Circuit.

Filed January 4, 2017

Morgan L. Roach, McCauley & Roach, LLC, Kansas City, Missouri, for Plaintiff–Appellant.

David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas, David G. Seely, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, and Jeremy K. Schrag, Lewis Brisbois Bisgaard & Smith LLP, Wichita, Kansas (Alan L. Rupe, and Jessica L. Skladzien, Lewis Brisbois Bisgaard & Smith, LLP, Wichita, Kansas, with them on the brief), for Defendants–Appellees.

Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Matthew Vogt alleges a violation of the Fifth Amendment through the compulsion to incriminate himself and the use of his compelled statements in a criminal case. Based on the alleged Fifth Amendment violation, Mr. Vogt invokes 42 U.S.C. § 1983, suing (1) the City of Hays, Kansas; (2) the City of Haysville, Kansas; and (3) four police officers. The district court dismissed the complaint for failure to state a claim, reasoning that

• the right against self-incrimination is only a trial right and

• Mr. Vogt's statements were used in pretrial proceedings, but not in a trial.

We draw four conclusions:

1. The Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.

2. The individual officers are entitled to qualified immunity.

3. The City of Haysville did not compel Mr. Vogt to incriminate himself.

4. Mr. Vogt has stated a plausible claim for relief against the City of Hays.

Accordingly, we (1) affirm the dismissal of the claims against the four police officers and Haysville and (2) reverse the dismissal of the claim against the City of Hays.

I. Mr. Vogt alleges that his compelled statements were used in a criminal case.

Because this appeal is based on a dismissal for failure to state a valid claim, we credit the factual allegations in the complaint. Brown v. Montoya , 662 F.3d 1152, 1162 (10th Cir. 2011).

Mr. Vogt was employed as a police officer with the City of Hays. In late 2013, Mr. Vogt applied for a position with the City of Haysville's police department. During Haysville's hiring process, Mr. Vogt disclosed that he had kept a knife obtained in the course of his work as a Hays police officer.

Notwithstanding this disclosure, Haysville offered the job to Mr. Vogt. But his disclosure about the knife led Haysville to make the offer conditional: Mr. Vogt could obtain the job only if he reported his acquisition of the knife and returned it to the Hays police department. Two Haysville police officers said that they would follow up with Hays to ensure that Mr. Vogt complied with the condition.

Mr. Vogt satisfied the condition, reporting to the Hays police department that he had kept the knife. The Hays police chief reacted by ordering Mr. Vogt to submit a written report concerning his possession of the knife. Mr. Vogt complied, submitting a vague one-sentence report. He then provided Hays with a two-week notice of resignation, intending to accept the new job with Haysville.

In the meantime, the Hays police chief began an internal investigation into Mr. Vogt's possession of the knife. In addition, a Hays police officer required Mr. Vogt to give a more detailed statement in order to keep his job with the Hays police department. Mr. Vogt complied, and the Hays police used the additional statement to locate additional evidence.

Based on Mr. Vogt's statements and the additional evidence, the Hays police chief asked the Kansas Bureau of Investigation to start a criminal investigation. In light of this request, the Hays police department supplied Mr. Vogt's statements and additional evidence to the Kansas Bureau of Investigation. The criminal investigation led the Haysville police department to withdraw its job offer.

Mr. Vogt was ultimately charged in Kansas state court with two felony counts related to his possession of the knife. Following a probable cause hearing, the state district court determined that probable cause was lacking and dismissed the charges.

This suit followed, with Mr. Vogt alleging use of his statements (1) to start an investigation leading to the discovery of additional evidence concerning the knife, (2) to initiate a criminal investigation, (3) to bring criminal charges, and (4) to support the prosecution during the probable cause hearing. Mr. Vogt argues that these uses of his compelled statements violated his right against self-incrimination.

II. Standard of Review

We engage in de novo review of the district court's dismissal. Mocek v. City of Albuquerque , 813 F.3d 912, 921 (10th Cir. 2015). To survive the motion to dismiss, Mr. Vogt had to plead enough facts to create a facially plausible claim. Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012). The claim is facially plausible if Mr. Vogt pleaded enough factual content to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. The Meaning of a "Criminal Case" Under the Fifth Amendment

The Fifth Amendment¹ protects individuals against compulsion to incriminate themselves "in any criminal case." U.S. Const. amend. V. This amendment prohibits compulsion of law enforcement officers to make self-incriminating statements in the course of employment. Garrity v. New Jersey , 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). As a law enforcement officer, Mr. Vogt enjoyed protection under the Fifth Amendment against use of his compelled statements in a criminal case.

The district court held that Mr. Vogt had not stated a valid claim under the Fifth Amendment because the incriminating statements were never used at trial. We disagree, concluding that the phrase "criminal case" includes probable cause hearings.

A. Our precedents provide conflicting signals on whether the term "criminal case" includes pretrial proceedings as well as the trial.

The U.S. Supreme Court has not conclusively defined the scope of a "criminal case" under the Fifth Amendment. In dicta, the Supreme Court suggested in a 1990 opinion, United States v. Verdugo – Urquidez , that the right against self-incrimination is only a trial right. 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990).

But the Supreme Court later appeared to retreat from that dicta. In Mitchell v. United States , for instance, the Court held that the right against self-incrimination extends to sentencing hearings. 526 U.S. 314, 320-21, 327, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). The Court reasoned that "[t]o maintain that sentencing proceedings are not part of ‘any criminal case’ is contrary to the law and to common sense." Id. at 327, 119 S.Ct. 1307.

Even more recently, the Court again addressed the scope of the Fifth Amendment in Chavez v. Martinez , 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). In Chavez , the plaintiff sued a police officer under § 1983, alleging coercion of self-incriminating statements in violation of the Fifth Amendment. 538 U.S. at 764–65, 123 S.Ct. 1994. Writing for himself and two other justices, Justice Thomas concluded that (1) the plaintiff had failed to state a valid claim because he had not been charged with a crime and (2) the plaintiff's statements had not been used in a criminal case. Id. at 766, 123 S.Ct. 1994.

Though the Court did not produce a majority opinion on the Fifth Amendment issue, Justice Thomas's plurality opinion explained that "mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness." Id. at 769, 123 S.Ct. 1994. Justice Thomas added that "[a] ‘criminal case’ at the very least requires the initiation of legal proceedings." Id. at 766, 123 S.Ct. 1994. Two other justices agreed with the outcome, reasoning that the Fifth Amendment's text "focuses on courtroom use of a criminal defendant's compelled, self-incriminating testimony." Id. at 777, 123 S.Ct. 1994 (Souter, J., concurring in the judgment) (emphasis added).

The Chavez Court did not decide "the precise moment when a ‘criminal case’ commences." Id. at 766–67, 123 S.Ct. 1994. Justice Thomas cited Verdugo – Urquidez , but apparently did not read it to limit the Fifth Amendment to use at trial. See id. at 767, 123 S.Ct. 1994.

Three other justices stated that a violation of the Self-Incrimination Clause is complete the moment a confession is compelled. Id. at 795, 123 S.Ct. 1994 (Kennedy, J., concurring in part and dissenting in part). Thus, even in light of Verdugo – Urquidez , these three justices concluded that the Fifth Amendment extended beyond use of a compelled statement at trial. Id. at 792, 123 S.Ct. 1994.

Following Chavez , a circuit split developed over the definition of a "criminal case" under the Fifth Amendment. The Third, Fourth, and Fifth Circuits have stated that the Fifth Amendment is only a trial right.² See Renda v. King , 347 F.3d 550, 552 (3d Cir. 2003) ("[A] plaintiff may not base a § 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff's answers were used against her at trial."); Burrell v. Virginia , 395 F.3d 508, 514 (4th Cir. 2005) ("[The plaintiff] does not allege any trial action that violated his Fifth Amendment rights; thus, ipso facto , his claim fails on the [Chavez ] plurality's reasoning."); Murray v. Earle , 405 F.3d 278, 285 (5th Cir. 2005) ("The Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial, even though pre-trial conduct by law enforcement officials may ultimately impair that right.").

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