An argument over suing police officers contains a warning about the future of Miranda rights
on Apr 25, 2022 at 3:55 pm
On Wednesday, the Supreme Court considered whether a violation of Miranda v. Arizona allows a plaintiff to sue for money damages under 42 U.S.C. § 1983. Stated thusly? The issue is deceptive, reading as a mere mundanity. Be warned: It is not. In fact, Wednesday’s oral argument revealed that Vega v. Tekoh may create a seismic shift in American constitutional criminal procedure, as the court’s resolution of the lawsuit here could take an axe to the legal and cultural oak known as Miranda warnings.
On behalf of police officer Carlos Vega, Roman Martinez argued that the decision of the U.S. Court of Appeals for the 9th Circuit (which held that Terence Tekoh could sue Vega for eliciting Tekoh’s un-Mirandized confession) must be reversed as it is inconsistent with settled precedent and sound policy. Calling the 9th Circuit’s decision an extension of Miranda into Section 1983 litigation, Martinez characterized the court’s landmark decision as a judicially crafted prophylactic Fifth Amendment “protective fence” that does not create a Section 1983 cause of action for money damages. He argued Miranda is a mere rule that, at best, provides only the “windfall” remedy of excluding the violative confession at trial or, failing that, a legal basis upon which to mount an appeal. As violation of Miranda does not result in a constitutional deprivation or harm, it fails to merit the constitutional-level remedy of money damages. Additionally, Martinez asserted that when prosecutors proffer and judges admit un-Mirandized confessions at trial, police cannot be held responsible and, therefore, civilly liable. The 9th Circuit’s conclusion to the contrary, then, is legally erroneous.
Martinez wielded the court’s pre-Dickerson v. United States cases and its more recent plurality opinion in Chavez v. Martinez like juridical swords. Justice Clarence Thomas, the author of the vaunted plurality, overmodestly disagreed with Chavez’s precedential value as, back then, he could not garner a majority vote. Thomas asked if Dickerson held that Miranda cannot be displaced by a federal statute, why is Miranda not a constitutional right, actionable under Section 1983? Martinez characterized Miranda as possessing mere “constitutional underpinnings.” Thomas asked, “what does that mean?,” which allowed Martinez to argue against the precedential value of Dickerson and in favor of the court adopting the rationale of pre-Dickerson case law and the Chavez plurality, all of which relegate Miranda warnings to prophylaxis.
Chief Justice John Roberts directed Martinez to focus on the actual language of Section 1983. If a person has a right under Miranda – secured by the Fifth Amendment – not to have unwarned confessions admitted at trial, Roberts asked, why isn’t that right secured under the Constitution? Roberts noted that “you wouldn’t have a Miranda right if it weren’t for the Constitution.” Martinez explained that “evidentiary rules” like Miranda often create remedies; however, they do not create (constitutional) rights.
Martinez’s Dickerson disdain was not lost on Justice Elena Kagan, who reminded Martinez that the Dickerson 7-2 decision “is the relevant precedent here.” Pre-Dickerson cases are not post-Dickerson cases, nor did the Chavez plurality decision garner a majority vote.
Justice Sonia Sotomayor said the quiet part out loud: “You want us to overturn the essence of Dickerson and Miranda.” Martinez’s response: “No. We have no quarrel with those cases.”
(And because the court disallows cameras, the world will never know if Martinez held his hands behind his back, with fingers assuredly crossed.)
But then Sotomayor showed a bit of her — and, perhaps, the court’s — hand when she asked Martinez, “Can you tell me why we’re here?” She was referring to the thorny question of proximate causation: Even though Vega was the one who obtained the un-Mirandizedconfession, it was the prosecutor who introduced the confession at Tekoh’s criminal trial, and it was the judge who allowed the confession into evidence. Arguably, any violation of Tekoh’s rights was proximately caused by the prosecutor and the judge, not Vega.
In his brief at the Supreme Court, Tekoh argued that Vega was indeed the proximate cause because he misrepresented the circumstances of the interrogation in his police report – thereby inducing the prosecutor to introduce the confession into evidence. But, as Sotomayor pointed out, Vega failed to make that argument in the lower courts.
Unsurprisingly, Martinez enthusiastically agreed that the court could rule for his client on that basis alone. However, his attempt to button up his argument about the lack of proximate causation seemed not to impress former prosecutor Sotomayor, who noted that prosecutors and judges often only discover the details of police-elicited confessions during a suppression hearing or trial, where facts may be introduced that implicate the officer’s truth-telling. She noted that neither the judge nor the prosecutor is the ultimate arbiter of the officer’s credibility. Martinez disagreed, noting that two trial judges determined on the evidence presented that Vega was not required to give Tekoh Miranda warnings and two juries agreed that Vega’s failure to warn Tekoh did not violate Section 1983.
Kagan circled back to the importance of respecting the court’s precedents. Undercutting a case as fundamental as Miranda, she suggested, would weaken the court’s legitimacy – a significant consideration of late for the Roberts court. Kagan urged Martinez to consider that Miranda has come to mean something extremely important in the way people understand the law and the Constitution. Almost beseechingly, Kagan called on Martinez (or, more likely, her colleagues on the bench) to recognize that overturning, undermining, or denigrating Miranda “would have a kind of unsettling effect not only on people’s understanding of the criminal justice system, but on people’s understanding of the court itself and the legitimacy of the court and the way the court operates and the way the court sticks to what it says.”
Justice Amy Coney Barrett, extending olive branches all around, noted “good points” made by Kagan and by the advocates on both sides. Barrett, noting that Vega was not asking for Dickerson to be overruled nor suggesting that the court’s power to institute prophylactic protections of constitutional rights be disturbed, then — suddenly and substantively — reconfigured the issue away from the power of Miranda and firmly toward the power of the court. Martinez agreed, warning that though the court has the power to create rules such as Miranda warnings, it had better be very careful in doing so because such rules are “very unusual.”
Assistant Solicitor General Vivek Suri, representing the United States, also argued that Miranda is only an evidentiary trial right, not a substantive one. Suri also agreed with Vega’s proximate causation argument, saying that police aren’t culpable for prosecutorial and judicial errors for proffering and admitting un-Mirandized confessions. Thomas asked: If an officer purposefully lies, then what? Irrelevant, per Suri’s response; the proffering prosecutor and admitting judge still supersede the officer’s wrongdoing. Kagan pondered a more extreme hypothetical in which the officer bribes both the prosecutor and judge; Suri remained unmoved.
Sotomayor asked, “Why should officers’ lies be immune from 1983 liability?” Suri responded: Because the court’s precedent holds that government witnesses enjoy absolute immunity from Section 1983 liability, even for perjured testimony. If there is a legal remedy, it would lie only in a criminal prosecution for perjury, not exposure to civil liability.
Justice Neil Gorsuch wondered whether the position taken by the United States would bleed into other constitutional rights, making them harder to protect. (Big, if true.) Suri assured the court that it shouldn’t be troubled, given that aggrieved defendants can appeal to a reviewing court under the substantive due process requirement of the 14th Amendment. Accordingly, police torturing or beating a confession out of a suspect violates a constitutional right and is actionable under Section 1983. Gorsuch did not sound completely convinced.
Barrett asked Siri to parse the rule-versus-right distinction. Siri noted that the United States is not relying on that distinction, given Dickerson. Miranda is, in the opinion of the United States and per Section 1983’s language, a constitutional right. Nevertheless, Siri argued, the failure to Mirandize should not be held civilly enforceable.
On behalf of Tekoh, Paul Hoffman attacked the per se notion that a police officer can never be held civilly liable for a Miranda violation under “the broad remedial sweep” of Section 1983 damages. Moreover, he argued, state actors, including police, can be sued if they proximately cause the violation of constitutionally-guaranteed rights, as did Vega, who not only elicited an un-Mirandized confession – itself a Fifth Amendment violation – but also lied about the circumstances surrounding Tekoh’s confession, facilitating its admission at trial. The 9th Circuit, Hoffman urged, was correct in finding Tekoh could sue Vega under Section 1983 for violating Miranda.
Immediately, the justices asked various iterations of “But what lies were told/proven below?” Thomas asked: Have there been any jury findings that Vega lied? Sotomayor and Barrett asked whether Tekoh had properly preserved the argument about Vega’s lies by raising it in the lower courts. Justice Stephen Breyer also chimed in with hypotheticals and suggestions, asking Hoffman what Tekoh argued below and why he should prevail now. Sotomayor pushed the point, noting that Tekoh’s brief conceded – unlike the pleadings in the record — that if Vega didn’t lie, there’s no liability under Section 1983; if, however, Vega did lie and thereby facilitated the confession being admitted at trial, then he is liable under Section 1983.
Hoffman attempted to walk the court through the peccadillos and procedural machinations below that affected the different and “confusing” pleading now before the court. Breyer circled back to the question of new evidence now that Vega misled the prosecutor, leading to the admission of the false confession. Hoffman cited the omission of evidence in police reports that Vega compelled Tekoh’s confession and, throughout the proceedings, gave the same false account — effectively circumventing the ability of the “circuit breakers,” i.e., the prosecutor and trial judge, to keep out the confession.
Roberts returned to the rights-versus-rule discussion. If Dickerson actually described Miranda as a constitutional right, he asked, wouldn’t Hoffman be able to point to that language? Hoffman did not presume to understand the rationale behind former Chief Justice William Rehnquist’s wording in Dickerson; however, he argued that the court has the power to decide that the violation of the constitutional rule of Miranda is a violation of the constitutional right that Miranda protects.
Hoffman then gave what can only be described as an impassioned plea on behalf of Tekoh, “who was acquitted and has absolutely no other remedy.” His life — Hoffman described — has been “destroyed” by this litigation; where is his remedy? “That’s what Section 1983 is for,” Hoffman asserted. Its statutory terms give rise to claims for monetary damages against officer misconduct. Eliminating Miranda as a cause of action would be inconsistent with Section 1983’s remedy for wronged rights, and Miranda, a constitutional rule, protects the Fifth Amendment right by defining its violation.
At times and notably, interspersed with the questioning, there was … silence. Lulls. Lots of audible spaces filled with nothing. The court’s tenor and tone seemed muted, given what was at stake. It was as if members of the court realized that, as an institution, it is approaching the Rubicon, assessing when – as opposed to whether or if – it should be crossed.
Americans, consider yourself warned.