Perhaps no other Supreme Court rule is as “embedded in . . . our national culture”1 as the eponymous warnings of Miranda v. Arizona.2 Despite Miranda’s “pathmarking” prominence,3 its warnings remain difficult to classify. Some categorize Miranda as a “prophylactic rule,” meaning that it safeguards constitutional rights but “can be violated without violating the Constitution itself.”4 Others categorize it as a “constitutional rule,” required by the Constitution and therefore resistant to congressional supersession.5 And still others object to this dichotomy outright.6 The “word games”7 of understanding how to classify Miranda are far from trivial: these taxonomic difficulties have resulted in disputes over whether 42 U.S.C. § 1983 provides a cause of action for violations of Miranda rights.8 Recently, in Tekoh v. County of Los Angeles,9 the Ninth Circuit denied a petition for rehearing en banc,10 leaving intact the panel’s holding that using an un-Mirandized statement at trial gives rise to § 1983 liability.11 Though the Ninth Circuit correctly denied en banc rehearing, the dissent’s demotion of Miranda warnings from “constitutionalize[d]” to “prophylactic”12 is unjustified and risks restricting constitutional remedies at the Supreme Court and beyond.
On March 19, 2014, Terence B. Tekoh, a certified nurse assistant, attended to Sylvia Lemus at the Los Angeles County + USC Medical Center.13 Lemus told other hospital employees that during this time, Tekoh sexually assaulted her.14 After one employee contacted the police, Deputy Carlos Vega of the Los Angeles Sheriff’s Department (LASD) arrived and interviewed Tekoh.15 Vega did not read Tekoh his Miranda rights.16 During the interview, Tekoh wrote a note admitting to touching Lemus’s genitals.17 According to Vega, Tekoh said that he had “made a mistake” and penned the confession when asked to describe what happened.18 Tekoh, however, alleged that Vega accused him of the assault and instructed him to write the confession, placing his hand on his gun when Tekoh hesitated.19 Tekoh further alleged that Vega falsely claimed the assault had been captured on video, ignored his request for counsel, and used racial slurs.20 Vega arrested Tekoh for unlawful sexual penetration and the case went to trial, where Tekoh was acquitted.21
Tekoh subsequently filed a complaint under 42 U.S.C. § 1983 in the Central District of California against Vega, Vega’s supervising officer, the LASD, and the County of Los Angeles.22 Tekoh claimed, among other things, that the defendants had violated his Fifth Amendment right against self-incrimination by failing to give him Miranda warnings.23 Tekoh’s proposed instruction would have allowed the jury to find Vega liable per se under § 1983 if it found, by a preponder-ance of the evidence, that he obtained Tekoh’s confession in violation of Miranda.24 After the court denied Tekoh’s proposed instruction, the jury returned a verdict in favor of the defendants.25 Tekoh filed a motion for a new trial, arguing that the court erred by denying his proposed Miranda jury instruction.26
The district court rejected Tekoh’s motion in relevant part.27 In his decision, Judge Wu concluded that the Supreme Court’s holdings “strongly suggest[] that § 1983 liability will not attach to a technical violation of Miranda.”28 Judge Wu referred to the Chavez v. Martinez29 plurality, which concluded that violating Miranda does not, in itself, “violate [the defendant’s] constitutional rights and cannot be grounds for a § 1983 action,”30 and the United States v. Patane31 plurality, which similarly remarked “a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule.”32 Conversely, according to Judge Wu, Tekoh failed to cite any authority supporting an instruction of per se § 1983 liability for violating Miranda.33 Judge Wu thus concluded that refusing Tekoh’s per se jury instruction was not error, but granted the new trial motion on other grounds.34 After the jury again returned a verdict in favor of the defendants, Tekoh appealed the district court’s Miranda ruling.35
The Ninth Circuit reversed.36 Writing for the unanimous panel, Judge Wardlaw37 identified the key question as whether Miranda rights are among the “rights, privileges, or immunities secured by the Constitution” under § 1983.38 Judge Wardlaw explained that the Chavez plurality did not “stand for the broader proposition that a § 1983 claim can never be grounded on a Miranda violation.”39 She prefaced that “[w]hen no single rationale commands a majority of the Court, only the specific result is binding on lower federal courts.”40 And since, unlike in Chavez, Tekoh’s un-Mirandized statement was admitted (rather than excluded) in his criminal proceedings, Chavez was inapplicable.41 Judge Wardlaw further asserted that the Patane plurality did not apply either, since the narrowest of the fractured opinions — Justice Kennedy’s concurrence — did not discuss Miranda’s constitutional status.42 Judge Wardlaw thus concluded that only Dickerson v. United States,43 which “made clear that the right of a criminal defendant against having an un-Mirandized statement introduced in the prosecution’s case in chief is indeed a right secured by the Constitution,” provided binding precedent.44
The Ninth Circuit denied a petition for rehearing en banc.45 Judge Bumatay dissented.46 Quite literally charting the Supreme Court’s description of Miranda warnings as “prophylactic” rather than a “constitutional right,”47 Judge Bumatay asserted that the panel’s decision constituted a “rewriting [of] the Fifth Amendment.”48 From early English common law to the Fifth Amendment’s ratification, the historical “lodestar” of the Fifth Amendment’s Self-Incrimination Clause, to Judge Bumatay, was “voluntariness, not prophylaxis.”49 Judge Bumatay viewed the Miranda decision as “refus[ing] to say that ‘the Constitution necessarily requires adherence to any particular’ pre-interrogation procedures,” and thus “[n]othing in Miranda itself . . . can be said to constitutionalize its eponymous warnings.”50 And Dickerson’s holding, to Judge Bumatay, was inapposite, since it branded Miranda as a “constitutional rule” but not a “constitutional right” as required for § 1983 liability.51 Judge Bumatay further pointed to Justice Souter’s Chavez concurrence, which “questioned the need for civil liability when certain non-core Fifth Amendment violations occurred.”52 Judge Bumatay therefore concluded that the panel decision was detached from text, history, and precedent and should have been reconsidered.53
Judge Miller concurred in the denial.54 He emphasized that the Ninth Circuit “lack[ed] authority to resolve contradictions in the Supreme Court’s precedents.”55 As such, Judge Miller concluded that the en banc dissent’s discussion of the text, history, and common law development of the Fifth Amendment was irrelevant.56 Noting that Dickerson prevented Congress from replacing Miranda rights, Judge Miller asked: “If Miranda is not ‘secured by the Constitution,’ then why is Congress not allowed to dispense with it?”57 Finally, Judge Miller noted that since “[t]he circuit split is not nearly as lopsided as the dissenters assert,”58 a rehearing would not resolve the conflict and thus did not “involve[] a question of exceptional importance” required to grant rehearing en banc.59 The Supreme Court granted certiorari.60
By denying the petition to rehear the case en banc, the Ninth Circuit correctly held that § 1983 applied to the use of an un-Mirandized statement at trial. Yet the dissent’s insistence that Miranda rights are prophylactic — that a Miranda violation does not necessarily re-sult in a constitutional violation — undermines Miranda. Neither the Constitution nor Supreme Court precedent compels the dissent’s language of prophylaxis. Nevertheless, this interpretation threatens not only § 1983 claims based on Miranda violations, but also any other constitutional remedies deemed “prophylactic” if other jurists — especially a majority of the Supreme Court — follow suit.
Though the dissent presumed that prophylactic rules are “less than a ‘right’” for § 1983 purposes,61 neither constitutional text nor Supreme Court precedent requires this interpretation. The Constitution does not distinguish between “prophylactic” and “constitutional” rules.62 Judges and academics initially invented this dichotomy to distinguish “Marbury-shielded” interpretation from “congressionally reversible” implementation.63 Yet Dickerson belied this dichotomy by declaring 18 U.S.C. § 3501 unconstitutional in defense of the “prophylactic” Miranda rights.64 Thus, while the dissent criticized the court for “contraven[ing]” and “rewriting” the Fifth Amendment,65 its severance of prophylactic rules from constitutional rights is itself a judicial creation.
In fact, prophylactic rules are commonly accepted as constitutionally required in several other areas of constitutional law. In the First Amendment context, for example, Professor David Strauss notes that the “unquestioned” presumption that content-based restrictions are unconstitutional is a prophylactic rule, since it “forbids some restrictions on speech that . . . do not offend against the central values of the First Amendment.”66 One example Strauss cites is a city banning pro-life — but not labor — picketing near hospitals based on an objective likelihood of violence rather than subjective disapproval.67 Applying the Tekoh dissent’s logic would find this regulation to violate no constitutional right, despite firm consensus stating otherwise, since the core constitutional right of protection from government hostility to speech remains unviolated.68 Professor Susan Klein likewise demonstrates accepted prophylaxis in Fourth Amendment jurisprudence with the per se warrant requirement, which states a rebuttable presumption that “searches conducted without a judicial warrant are per se unreasonable.”69 Overprotection results when reasonable, but warrantless, searches are found to violate the Fourth Amendment, yet this rule remains a staple in the Supreme Court’s search-and-seizure analysis.70 Under the dissent’s logic, however, violating these mainstream constitutional rules would not result in § 1983 liability, despite the Supreme Court holding otherwise.71 The Court’s prophylactic rulemaking for other constitutional provisions thus eases the supposed “tension in the Court’s jurisprudence” regarding constitutional prophylaxis.72
In reaching its conclusion that Miranda is a prophylactic rule but not a constitutional right, the dissent misinterpreted the Dickerson majority while overinterpreting the Supreme Court’s pluralities and concurrences. The dissent first described how Dickerson announced Miranda as only a “constitutional rule,” not a “constitutional right” as required by § 1983, and then pointed to Chavez and Patane as confirming the prophylactic understanding of Miranda.73 It erred at both steps. First, the dissent created a distinction without a difference between a rule creating a right and the right itself for § 1983 enforcement purposes, thus playing the “word games” that Justice Scalia denounced.74 Second, it aggrandized Chavez and Patane by misapplying the rule in Marks v. United States,75 which requires lower courts to follow the Court’s pluralities “on the narrowest grounds” of the concurring Justices.76 In his Chavez concurrence, Justice Souter noted that “[t]he question whether the absence of Miranda warnings may be a basis for a § 1983 action under any circumstance [was] not before the Court.”77 Likewise, as Judge Wardlaw argued, Justice Kennedy’s concurrence in Patane omitted any relevant discussion of Miranda.78 None of the “narrowest grounds” from Chavez and Patane could therefore include limiting Miranda on the basis of prophylaxis. The dissent thus erroneously narrowed the Supreme Court’s earlier majority opinions by exaggerating its later plurality and concurring opinions.
Though the dissent did not carry the day, its error nevertheless risks limiting constitutional remedies. Dissents from denials of rehearing en banc have become more prevalent in the Supreme Court’s docket and have been described as “judicial petitions for certiorari.”79 In his recently granted petition for certiorari, Vega cites “the seven-judge dissent” over ten times.80 Thus, the stage is amply set for the Supreme Court to consider — and perhaps adopt in majority fashion — the dissent’s position. More immediately, a Ninth Circuit panel reckoned with Miranda’s prophylactic nature just three months after Tekoh in Chavez v. Robinson.81 In her majority opinion, Judge Ikuta, a fellow Tekoh dissenter, reasserted that Miranda rights are prophylactic and concluded that one “may use the privilege only defensively as a shield, and may not wield it as a sword in an action for damages.”82 The dissent’s logic could chill constitutional remedies even outside of the § 1983 context as well. In addition to Strauss and Klein’s examples, habeas corpus rights that hinge on Miranda violations, as Judge Miller discussed,83 could also be deemed prophylactic and thus unprotected by the Constitution, given the parallel statutory text between § 1983 and the federal habeas statutes.84 Though found only in dissent, the prophylactic language of Tekoh may limit remedies at the Supreme Court, the Ninth Circuit, and beyond.
As Justice Kennedy stated in his Chavez concurrence, “[i]t damages the law, and the vocabulary with which we impart our legal tradition from one generation to the next, to downgrade our understanding of what the Fifth Amendment requires.”85 The Tekoh dissent, though nonbinding, leaves constitutional remedies vulnerable to such damage. The dissent’s vocabulary of prophylaxis, while supported by a plurality of Justices in Chavez and Patane, is unmoored from the Constitution and threatens not only § 1983 liability for Fifth Amendment claims, but also any other “prophylactic” remedies affiliated with the Constitution. “Words, words, words” though they may be,86 the dissent’s taxonomy limits the remedies available for constitutional violations, chipping away at the foundation of Miranda and Dickerson.