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Criminal Procedure

Vega v. Tekoh

Miranda v. Arizona1×1. 384 U.S. 436 (1966). is perhaps the best-known criminal justice decision in American history,2×2. See Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda has become . . . part of our national culture.”); Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1000 (2001) (calling Miranda “arguably the most well-known legal decision . . . in American history”). bringing the privilege against self-incrimination “to the informal proceedings in the interrogation room”3×3. Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . . , 99 Mich. L. Rev. 879, 880 n.3 (2001). and establishing the set of eponymous warnings deemed necessary to “dispel the compelling pressure of custodial interrogation.”4×4. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 436 (1987). Miranda spawned vigorous academic debate over both its effectiveness5×5. Compare, e.g., Stephen J. Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500 (1996), with Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055 (1998). and legitimacy,6×6. Compare, e.g., Schulhofer, supra note 4, and Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109 (1998), with Joseph D. Grano, Miranda’s Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U. Chi. L. Rev. 174 (1988), and David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190 (1988). with vocal critics calling for the decision to be overturned.7×7. E.g., Dickerson, 530 U.S. at 461–65 (Scalia, J., dissenting) (“[W]e cannot allow to remain on the books even a celebrated decision . . . stand[ing] for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States.” Id. at 465.). Nonetheless, when the Supreme Court last explicitly considered overruling Miranda two decades ago in Dickerson v. United States,8×8. 530 U.S. 428 (2000). it rightly concluded that “the principles of stare decisis weigh heavily against overruling it.”9×9. Id. at 443. Last Term, in Vega v. Tekoh,10×10. 142 S. Ct. 2095 (2022). the Supreme Court held that the admission of a criminal defendant’s un-Mirandized statement at trial does not constitute “the deprivation of [a] right[] . . . secured by the Constitution” and thus does not allow the defendant to state a claim under 42 U.S.C. § 1983.11×11. Id. at 2106, 2108 (alteration and omission in original) (quoting 42 U.S.C. § 1983). While the Court claimed to accept Dickerson on its own terms that Miranda provided a constitutionally based right,12×12. Id. at 2106 & n.5. it nonetheless held that Miranda did not establish a right “secured” by the Constitution within the meaning of § 1983.13×13. See id. at 2106. This subversion of Dickerson could be the first step to overcoming principles of stare decisis and augurs a future in which the Court may overrule Miranda.

On March 19, 2014, Terence Tekoh was accused by a patient of sexual assault while working as a certified nurse assistant at a medical center in Los Angeles.14×14. Tekoh v. County of Los Angeles, No. CV 16-7297, 2017 WL 5957727, at *1–3 (C.D. Cal. May 25, 2017); Tekoh v. County of Los Angeles, 270 F. Supp. 3d 1163, 1170–71 (C.D. Cal. 2017). Hospital staff reported the allegation to the Los Angeles Sheriff’s Department,15×15. Tekoh, 2017 WL 5957727, at *3. and Deputy Carlos Vega responded.16×16. Tekoh, 270 F. Supp. 3d at 1171. In a private room, Vega questioned Tekoh about the incident without advising Tekoh of his rights under Miranda.17×17. Id. at 1172–73; Tekoh, 2017 WL 5957727, at *3. By the end of the questioning, Tekoh had produced a statement admitting to and apologizing for inappropriately touching the patient’s genitals.18×18. Tekoh, 270 F. Supp. 3d at 1173. However, the parties offered diverging accounts of how the statement came to be: Vega claimed that Tekoh immediately admitted to making “a mistake” and that Tekoh wrote the statement upon simply being asked to write what happened, all prior to any questioning.19×19. Id. at 1172. Meanwhile, Tekoh alleged that Vega questioned Tekoh for more than half an hour while Tekoh repeatedly refused to confess, denied Tekoh’s request for a lawyer, and ultimately dictated the written confession to Tekoh.20×20. Tekoh v. County of Los Angeles, 985 F.3d 713, 715–16 (9th Cir. 2021). Tekoh asserted that during the encounter Vega “shut the door and stood in front of it” and later threatened Tekoh by placing his hand on his gun and claiming that he would deport Tekoh “back to the jungle.” Id.

Tekoh was charged in California state court with unlawful sexual penetration.21×21. Id. at 716; see Cal. Penal Code § 289(d) (2013). Although the prosecution introduced Tekoh’s un-Mirandized confession at trial, Tekoh was acquitted.22×22. Tekoh, 985 F.3d at 716. Tekoh subsequently filed an action in the Central District of California under § 1983 against Vega and several other defendants,23×23. Complaint for Damages for Violations of Civil Rights Under Color of State Law ¶¶ 1, 4–7, Tekoh, 270 F. Supp. 3d 1163 (No. CV 16-7297) [hereinafter Complaint]; First Amended Complaint for Damages for Violations of Civil Rights Under Color of State Law ¶¶ 1, 4–6, Tekoh, 270 F. Supp. 3d 1163 (No. CV 16-7297) [hereinafter First Amended Complaint]. Tekoh initially named the County of Los Angeles, the Los Angeles Sheriff’s Department, Vega’s supervising officer, and Vega as defendants in the case, although Tekoh shortly thereafter withdrew his claim against the County, and only his claim against Vega is relevant to the case at bar. Compare First Amended Complaint, supra, ¶¶ 4–6, with Complaint, supra, ¶¶ 4–5. seeking damages for violations of his constitutional rights, including his Fifth Amendment right against compelled self-incrimination by way of a “coercive and illegal interrogation[] in violation of Miranda.”24×24. First Amended Complaint, supra note 23, ¶¶ 46–51; see also Complaint, supra note 23, ¶¶ 36–39. Tekoh also alleged violations of the Fourth Amendment by way of an arrest without probable cause and the Fourteenth Amendment by way of a false report depriving him of his substantive and procedural due process rights. First Amended Complaint, supra note 23, ¶¶ 46–51. At trial, Tekoh proposed a jury instruction that would allow the jury to find that having the fruit of an illegal interrogation in violation of Miranda used against him in a criminal case was “a violation of the Fifth Amendment actionable under § 1983.”25×25. See Tekoh v. County of Los Angeles, No. CV 16-7297, 2018 WL 9782523, at *4 (C.D. Cal. Mar. 8, 2018). However, his proposed jury instruction was denied and the jury returned a verdict in favor of the defendants.26×26. Id. at *1. As such, Tekoh moved for a new trial, arguing, inter alia, that the court erroneously failed to give his proposed instruction.27×27. Id. Tekoh also argued that the court erred in excluding his proposed expert on false confessions, failing to give another one of his proposed jury instructions regarding his coerced confession claim, and allowing defense counsel’s misconduct to deprive Tekoh of a fair trial. Id. at *1, *4.

The district court rejected Tekoh’s claim regarding his proposed instruction, observing that Supreme Court precedent “strongly suggest[ed] that § 1983 liability will not attach to a technical violation of Miranda” alone and would require a further showing of “improper force or duress.”28×28. Id. at *5. The court first noted the plurality opinion in Chavez v. Martinez,29×29. 538 U.S. 760 (2003); Tekoh, 2018 WL 9782523, at *5. which held that an officer’s failure to read Miranda warnings alone did not violate the defendant’s constitutional rights.30×30. Chavez, 538 U.S. at 772 (plurality opinion) (citing Connecticut v. Barrett, 479 U.S. 523, 528 (1987); Michigan v. Tucker, 417 U.S. 433, 444 (1974)). The court then noted another plurality opinion in United States v. Patane,31×31. 542 U.S. 630 (2004); Tekoh, 2018 WL 9782523, at *6. which held that the failure to give Miranda warnings alone could not “violate a suspect’s constitutional rights or even the Miranda rule.”32×32. Patane, 542 U.S. at 641 (plurality opinion). Therefore, the court found that it did not err when it refused to give Tekoh’s proposed instruction.33×33. Tekoh, 2018 WL 9782523, at *6. And, although the court granted Tekoh’s motion for a new trial on other grounds,34×34. Id. at *13. The district court found that the court had previously erred in failing to give a separate jury instruction on Tekoh’s coerced confession claim. Id. at *6–11. the jury at the new trial again returned for Vega.35×35. Tekoh v. County of Los Angeles, 985 F.3d 713, 718 (9th Cir. 2021). The district court only granted the new trial as to Vega out of the defendants, Tekoh, 2018 WL 9782523, at *13, so Vega was the only remaining defendant. Tekoh appealed.36×36. Tekoh, 985 F.3d at 718.

The Ninth Circuit vacated, reversed, and remanded.37×37. Id. at 726. Judge Wardlaw wrote for the court, joined by Judges Murguia and Miller. The panel based its judgment on Dickerson, where the Court held that Miranda was “a constitutional decision” that Congress could not overrule.38×38. Id. at 720 (quoting Dickerson v. United States, 530 U.S. 428, 438–39 (2000)). Noting that Dickerson “made clear” that the right of a criminal defen-dant against having an un-Mirandized statement introduced against him “is indeed a right secured by the Constitution,” the panel concluded that Tekoh had a valid claim under § 1983 that his Fifth Amendment right against self-incrimination was violated.39×39. Id. The panel also noted that the district court “went astray” in its reading of the fractured pluralities in Chavez and Patane: because the narrowest grounds for the specific results in both cases were inapplicable to the facts at hand, neither case supplied binding precedent.40×40. Id. at 720–22. As “no single rationale command[ed] a majority of the Court” in either case, the panel recognized that “only the specific result” of each case was “binding on lower federal courts.” Id. at 721 (quoting United States v. Davis, 825 F.3d 1014, 1021–22 (9th Cir. 2016)). Vega petitioned for rehearing en banc, but the petition was denied.41×41. Tekoh v. County of Los Angeles, 997 F.3d 1260, 1261 (9th Cir. 2021). Judge Miller, joined by Judges Wardlaw and Murguia, concurred in the denial, reiterating that Dickerson was inconsistent with the view that Miranda merely established a prophylactic rule that was not required by the Constitution. Id. at 1261–63 (Miller, J., concurring in the denial of rehearing en banc). Judge Bumatay, joined by Judges Callahan, Ikuta, Bennett, R. Nelson, Bress, and VanDyke, dissented from the denial, arguing that the text and history of the Fifth Amendment as well as the weight of Supreme Court precedent made clear that Miranda was merely a prophylactic rule, rather than a constitutional right. Id. at 1264–72 (Bumatay, J., dissenting from the denial of rehearing en banc).

The Supreme Court reversed and remanded.42×42. Vega, 142 S. Ct. at 2108. Writing for the Court, Justice Alito43×43. Justice Alito was joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. held that because a violation of Miranda at trial is not itself a violation of the Fifth Amendment and a cost-benefit analysis does not provide justification to expand Miranda, a violation of Miranda alone could not provide the basis for a claim under § 1983.44×44. Vega, 142 S. Ct. at 2107–08. First, the Court noted that Miranda “was clear” in that it never “state[d] that a violation of its new rules constituted a violation of the Fifth Amendment,” which would require some further showing of “compelled self-incrimination.”45×45. Id. at 2101–02 (emphasis added). The Court pointed out that an un-Mirandized suspect in custody might make a self-incriminating statement without any “hint of compulsion.” Id. at 2101. Further, Justice Alito explained that since Miranda, the Court had “repeatedly described” the Miranda rules as “prophylactic,” citing to twenty of its decisions handed down since Miranda.46×46. Id. at 2102. Justice Alito then characterized several of those decisions as “charting the dimensions” of the rules using cost-benefit analysis and, in some cases, “justif[ying] restrictions” on the rules that could not be possible if Miranda was part of the core Fifth Amendment right.47×47. Id. at 2103–04 (citing Harris v. New York, 401 U.S. 222, 224–26 (1971); Michigan v. Tucker, 417 U.S. 433, 445–46, 447–52, 452 n.26 (1974); New York v. Quarles, 467 U.S. 649, 654–57 (1984); Oregon v. Elstad, 470 U.S. 298, 301–02, 306–09 (1985)). Justice Alito also identified a set of cases that found that the prophylactic rules should be expanded. Id. at 2104–05 (citing Doyle v. Ohio, 426 U.S. 610, 617–19 (1976); Arizona v. Roberson, 486 U.S. 675, 681–82 (1988); Withrow v. Williams, 507 U.S. 680, 688–93 (1993)).

The Court then explained that “Dickerson did not upend the Court’s understanding of the Miranda rules as prophylactic.”48×48. Id. at 2106. The Court acknowledged that Dickerson claimed authority to “create constitutionally based prophylactic rules that bind both federal and state courts,” and purported to “follow its rationale” to decide Vega.49×49. Id. at 2106 n.5. However, Justice Alito noted, even accepting Dickerson’s “bold” claim that Miranda’s “constitutional rule” could not be superseded by legislation, it “clear[ly]” did not equate a Miranda violation with an “outright Fifth Amendment violation.”50×50. Id. at 2105–06 (citing Dickerson v. United States, 530 U.S. at 428, 438–40 (2000)). As such, the Court found no precedent suggesting that a Miranda violation “necessarily constitute[s]” a constitutional violation, and the Court held that a Miranda violation alone could not constitute the “deprivation of [a] right . . . secured by the Constitution” under § 1983.51×51. Id. at 2106 (first alteration in original) (quoting 42 U.S.C. § 1983). Finally, the Court declined to “expand[]” the “law” of Miranda to include a claim under § 1983 based on a cost-benefit analysis.52×52. Id. at 2106–08. The Court reasoned that allowing claims like Tekoh’s would “disserve ‘judicial economy’” by readjudicating factual questions, produce “unnecessary friction” between the federal and state court systems, and present a variety of procedural issues. Id. at 2107 (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979); Preiser v. Rodriguez, 411 U.S. 475, 490–91 (1973)).

Justice Kagan dissented.53×53. Id. at 2108 (Kagan, J., dissenting). Justice Kagan was joined by Justices Breyer and Sotomayor. She first noted the Court’s previous expansive constructions of the “broad language” of § 1983.54×54. Id. (citing Dennis v. Higgins, 498 U.S. 439, 443 (1991)). Justice Kagan noted that under § 1983, a “‘right[]’ is anything that creates specific ‘obligations binding on [a] governmental unit’ that an individual may ask the judiciary to enforce,” id. (alterations in original) (quoting Dennis, 498 U.S. at 449), and that a right “secured by the Constitution” is any right “protect[ed] or ma[de] certain” by the Constitution, id. (alterations in original) (citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 527 (1939) (opinion of Stone, J.)). Explaining that Dickerson “ma[de] plain” that Miranda has “all the substance of a constitutional rule,” Justice Kagan concluded that Miranda clearly was “secured by the Constitution” within the meaning of § 1983.55×55. Id. at 2109. Justice Kagan pointed out that Dickerson made clear that Miranda could not be abrogated by ordinary legislation and was applicable in state court proceedings, both characteristics of a constitutional rule. Id. She then noted that Miranda’s constitutional rule clearly gives a “correlative ‘right[]’” within the meaning of § 1983 to be tried without the pros-ecution using an un-Mirandized statement.56×56. Id. at 2109–10 (alteration in original) (quoting 42 U.S.C. § 1983). Combining those two premises, she concluded that, even if Miranda extended beyond the Fifth Amendment’s “core guarantee,” it should still be “enforceable through § 1983.”57×57. Id. at 2110–11. Justice Kagan noted that it should make no difference under § 1983 whether the right in question “safeguards a yet deeper constitutional commitment.” Id. at 2110 (citing Dennis, 498 U.S. at 445 (declining to “limit the types of constitutional rights” included within § 1983 and holding that an implied dormant commerce clause right was enforceable under § 1983)).

The Vega Court purported to sidestep the debate over its authority to create constitutionally based prophylactic rules. After all, the Court chose to acknowledge that while Miranda swept more broadly than the constitutional minimum, it still created a constitutional rule, and likewise that in Dickerson, the Court previously used the constitutional basis of the prophylactic rule to hold that Miranda could not be superseded by statute. However, instead of leaning into the constitutional nature of the rule, as the Court did in Dickerson, to find a corresponding right under § 1983, the Vega Court reiterated the rule’s prophylactic nature as the reason why it did not establish a right “secured” by the Constitution for the purposes of § 1983. This subtle subversion of the driving rationale behind Dickerson in the context of § 1983 signals the Court’s potential willingness to overturn Miranda and could be a stepping stone to overcoming the principles of stare decisis.

Although Miranda could in isolation be read to hold that any admission of an un-Mirandized statement squarely violates the Constitution, the Court has since backed away from that reading and couched the rule in the flavor of constitutional prophylaxis. In Miranda, noting compulsion as the touchstone of classic Fifth Amendment analysis,58×58. Miranda v. Arizona, 384 U.S. 436, 461–62 (1966) (citing Bram v. United States, 168 U.S. 532, 542, 549 (1897)). the Court fashioned a set of warnings to protect against the “compulsion inherent in custodial surroundings.”59×59. Id. at 458, 467–79 (“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. at 458 (emphases added).). Miranda noted that any unwarned custodial interrogation creates pressure sufficient to constitute compulsion and could thus be read to hold that the admission of any un-Mirandized statement elicited in such a manner flatly violates the Fifth Amendment.60×60. See Schulhofer, supra note 4, at 440; Miranda, 384 U.S. at 458; Orozco v. Texas, 394 U.S. 324, 326 (1969) (“[U]se of these admissions obtained in the absence of the required warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda.”). However, in the decades following Miranda, the Court backed away from that strong reading, instead reaching holdings that could only be consistent with the view that the “Miranda exclusionary rule . . . sweeps more broadly than the Fifth Amendment itself.”61×61. Oregon v. Elstad, 470 U.S. 298, 306 (1985); see, e.g., New York v. Quarles, 467 U.S. 649, 654–57 (1984) (allowing the use of un-Mirandized statements to be admitted through a “public safety” exception); Michigan v. Tucker, 417 U.S. 433, 450–52 & n.26 (1974) (allowing the “fruits” of an un-Mirandized statement to be admitted); Harris v. New York, 401 U.S. 222, 224–26 (1971) (allowing the use of an un-Mirandized statement to impeach the defendant).

Nonetheless, when the Court in Dickerson considered the validity of a federal statute intended to overrule Miranda, it reinforced the constitutional nature of Miranda and emphatically declined to overrule it. In response to 18 U.S.C. § 3501, which intended to change the touchstone of confession admissibility from whether a statement was Mirandized to whether it was voluntary,62×62. See 18 U.S.C. § 3501. the Court in Dickerson reiterated that Miranda was “a constitutional decision” that “announced a constitutional rule.”63×63. Dickerson v. United States, 530 U.S. 428, 432, 444 (2000). Prior to Miranda, voluntariness had been the key indicator of admissibility. See Bram, 168 U.S. at 542. Thus, even though the Court did not go as far as to hold that Miranda warnings were “required by the Constitution, in the sense that nothing else [would] suffice to satisfy constitutional requirements,” it still leaned into Miranda’s constitutional basis and held that Miranda was a constitutional rule that could not be “supersede[d] legislatively.”64×64. Dickerson, 530 U.S. at 442, 444.

Since Dickerson, there has been great debate among both jurists and commentators over “[w]hether [the] Court has the authority to create constitutionally based prophylactic rules that bind both federal and state courts.”65×65. Vega, 142 S. Ct. at 2106 n.5. Prophylactic constitutional rules, as defined by the Court, are those that sweep more broadly than the underlying constitutional right.66×66. See Michigan v. Payne, 412 U.S. 47, 53 (1973) (noting that “prophylactic constitutional rules” inherently benefit “some defendants who have suffered no constitutional deprivation”). Some, like the late Justice Scalia and Professor Joseph Grano, have argued that such rules are illegitimate judicial legislation and overstep the Court’s Article III power.67×67. Dickerson, 530 U.S. at 461 (Scalia, J., dissenting) (“Miranda represents an illegitimate exercise of [the Court’s] authority to review state-court judgments.”); Grano, supra note 6, at 174–81 (“Miranda . . . represents an exercise of judicial authority not conveyed by the Constitution.” Id. at 174.); see also Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100, 101–02 (1985). Others, such as Professors David Strauss and Susan Klein, have argued that such rules are the result of the interpretation that the Constitution itself requires prophylaxis, and thus are legitimate, necessary, and even broadly used.68×68. David A. Strauss, Miranda, The Constitution, and Congress, 99 Mich. L. Rev. 958, 960 (2001) (“[C]onstitutional rules — routinely, unavoidably, and quite properly — treat ‘the Constitution itself’ as requiring ‘prophylaxis.’”); Susan R. Klein, Miranda Deconstitutionalized: When the Self-Incrimination Clause and the Civil Rights Act Collide, 143 U. Pa. L. Rev. 417, 482–83 (1994) (“[C]onstitutional common law is in fact required by the Federal Constitution in some instances . . . . This ‘constitutional common law’ has the same status as ‘true’ constitutional interpretation . . . and would thus be a proper basis for a § 1983 suit.”); see also Strauss, supra note 6, at 190.

Although the Court in Vega claimed to accept Dickerson’s legitimacy, its reasoning and holding in fact deeply undermined the foundations of Dickerson. While acknowledging the scholarly divide over the Court’s actions in Dickerson, the Court purported to remain faithful to Dickerson’s rationale “for the purpose of deciding [Vega],” “accept[ing] it on its own terms” and not “disturb[ing]” the caselaw.69×69. Vega, 142 S. Ct. at 2106 n.5. But Vega largely departed from the reasoning that undergirded Dickerson. Dickerson read Miranda to establish a “constitutional prophylactic rule” based on “what is required to safeguard that constitutional right.”70×70. Id. at 2106 (emphases added); see also Dickerson, 530 U.S. at 442–44. In other words, Dickerson relied on the constitutional power of Miranda to hold that it could not be superseded legislatively in spite of its prophylactic nature.

The Vega Court did the opposite, holding that in the § 1983 context, Miranda’s prophylactic nature was dispositive. As Justice Kagan argued in dissent, a faithful application of Dickerson’s rationale to § 1983 would conclude that though Miranda’s rule is prophylactic, it is still a “constitutional rule” that secures a corollary “right,” the loss of which should be enforceable under § 1983.71×71. See Vega, 142 S. Ct. at 2110–11 (Kagan, J., dissenting). After all, as she and other scholars have observed, the Court has generally construed § 1983 broadly and found that a variety of other implied or prophylactic constitutional rules, like the one recognized in Dickerson, all confer a constitutional right “‘encompassed within’ § 1983.”72×72. Id. at 2110 (citing Dennis v. Higgins, 498 U.S. 439, 445 (1991) (affirming § 1983 liability for a violation of the implied dormant commerce clause)); see also Recent Case, Tekoh v. County of Los Angeles, 997 F.3d 1260 (9th Cir. 2021), cert. granted sub nom. Vega v. Tekoh, 142 S. Ct. 858 (2022) (mem.), 135 Harv. L. Rev. 1496, 1501–02, 1502 n.71 (2022) (noting that the Court has affirmed § 1983 liability from content-based restrictions in the First Amendment context and the per se warrant requirement in the Fourth Amendment context, two requirements that have been argued to be prophylactic rules by Strauss and Klein, respectively). Thus, a straightforward application of the rationale that Miranda was constitutional enough to be impervious to legislative overruling would have found the corresponding § 1983 right to be constitutionally secured.73×73. The Solicitor General, whose reading of Dickerson most closely aligned with that of the Court’s out of the litigants and amici curiae who briefed the Court, concluded that Miranda as understood by Dickerson did not confer a right to sue police officers under § 1983 because officers are not the “cause” of the actual Miranda violation at trial, rather than that Miranda was not a “right” secured by the Constitution. Brief for the United States as Amicus Curiae Supporting Petitioner at 14–19, Vega (No. 21–499). Instead, the Vega Court concluded that Miranda did not grant such a right on account of its prophylactic nature,74×74. See Vega, 142 S. Ct. at 2106. in spite of its constitutional basis and in contravention of the plain text of § 1983. By denying that Miranda established a “right[] . . . secured by the Constitution,”75×75. Id. (quoting 42 U.S.C. § 1983). the Vega Court necessarily diminished the force of the constitutional status that Miranda’s prophylactic rule was afforded in Dickerson.

The Court’s subversion of Dickerson opens the door to and signals a distressing potential future in which Miranda may be overturned entirely. When the Court last explicitly declined to overrule Miranda in Dickerson, it noted that while it had “overruled . . . precedents when subsequent cases have undermined their doctrinal underpinnings,” it did not “believe that this has happened to the Miranda decision.”76×76. Dickerson v. United States, 530 U.S. 428, 443 (2000) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989)). Following that logic, in order for a future Court to overturn Miranda, a previous Court would first need to undermine its “doctrinal underpinnings,” and Vega was a perfect vehicle for the Court to begin undermin-ing Miranda’s progeny. Civil cases presenting facts like that of Vega rarely arise: a criminal defendant must have an un-Mirandized statement improperly admitted against him at trial but nevertheless be acquitted and bring the § 1983 claim solely on the failure to give Miranda warnings.77×77. If the statement is not admitted at trial, the § 1983 suit would be barred by the narrowest holding in Chavez v. Martinez, 538 U.S. 760, 767 (2003) (“[Defendant] was never made to be a ‘witness’ against himself in violation of the Fifth Amendment . . . because his statements were never admitted as testimony against him in a criminal case.”). Similarly, if the criminal defendant was not acquitted, the § 1983 suit would be barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994) (holding that a § 1983 claim is not cognizable if it implies the invalidity of the conviction). Tekoh’s plight thus provided a unique opportunity to revisit the reasoning underlying Miranda without needing to overrule its core holding.78×78. See Vega, 142 S. Ct. at 2107–08 (noting the maintenance of Miranda’s core remedy of the “exclusion of unwarned statements” at trial (quoting Chavez, 538 U.S. at 790 (Kennedy, J., concurring in part and dissenting in part))). While being of dubious practical value,79×79. Although there had been a circuit split prior to the Ninth Circuit’s decision in Tekoh, the two cases that created the split were from fifteen years prior, and neither side had been revisited by the Courts of Appeals in the intervening years. Compare Sornberger v. City of Knoxville, 434 F.3d 1006 (7th Cir. 2006), with Hannon v. Sanner, 441 F.3d 635 (8th Cir. 2006). Vega allowed the Court to hold only that Miranda should not be expanded to the § 1983 context while its reasoning swept further to undermine Dickerson and Miranda.80×80. See Brief in Opposition at 8, Vega (No. 21–499) (“Because it is so unusual for the Fifth Amendment claim to arise . . . , Petitioner  . . . [is] . . . interested in overturning the constitutional foundation of Dickerson[] and Miranda itself . . . .”).

While an overruling of Miranda might have once been unthinkably radical, it seems increasingly possible in light of the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization.81×81. 142 S. Ct. 2228 (2022). When the Court last refused to overrule Miranda in Dickerson, its decision rested on principles of stare decisis that “weigh[ed] heavily against overruling.”82×82. Dickerson v. United States, 530 U.S. 428, 443 (2000). The Court noted that departures from precedent require “special justification,” and the Court found no such justification, noting Miranda’s solid doctrinal underpinnings and cultural relevance.83×83. Id. (quoting United States v. Int’l Bus. Machs. Corp., 517 U.S. 843, 856 (1996)). So despite the continuing debate and controversy surrounding Miranda,84×84. See sources cited supra notes 5–6. a supermajority of the Court concluded that it should not and would not reverse enough caselaw to return to the pre-Miranda days.85×85. Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 Mich. L. Rev. 1030, 1051 & n.96 (2001) (“Only Justices Scalia and Thomas might be willing to reverse the great quantity of case law needed to return to those days.” Id. at 1051 n.96.).

Nonetheless, in the ensuing twenty years, the Court’s composition has changed.86×86. Chief Justice Rehnquist and Justices Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, who composed the supermajority that decided Dickerson, have all since retired or passed. One need only turn a few pages in the U.S. Reports to find Dobbs, where the Court overturned the longstanding decision of Roe v. Wade87×87. 410 U.S. 113 (1973). that established the constitutional right to abortion and repudiated the principles of stare decisis that had upheld Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey.88×88. 505 U.S. 833 (1992); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240–43 (2022). Roe and Miranda share some similarities: Both were landmark decisions from a half century ago establishing rights not explicitly mentioned in the Constitution.89×89. Compare Roe, 410 U.S. at 152 (“The Constitution does not explicitly mention any right of privacy.”), with Miranda v. Arizona, 384 U.S. 436, 467 (1966) (“[W]e cannot say that the Constitution necessarily requires adherence to any particular solution.”). Both have since been heavily debated, argued by some to be constitutional rights90×90. Compare, e.g., Roe, 410 U.S. at 152–54 (recognizing “a right of personal privacy . . . under the Constitution” that “includes the abortion decision”), with, e.g., sources cited supra note 68. and by others to be overreaching judicial legislation.91×91. Compare, e.g., Roe, 410 U.S. at 174 (Rehnquist, J., dissenting) (arguing that the majority “partakes . . . of judicial legislation”), and John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973), with, e.g., sources cited supra note 67. And both were upheld against challenges decades later, largely on the force of stare decisis.92×92. Compare Casey, 505 U.S. at 853 (“[T]he reservations [we] may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.”), with Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.”). Now that stare decisis has failed to save even Roe,93×93. See Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2029 (2021) (“The doctrine of stare decisis . . . has been the chief impediment to overruling Roe.”); see also Michael J. Gerhardt, Super Precedent, 90 Minn. L. Rev. 1204, 1204 (2006) (noting that even then-Judge Luttig once referred to Roe as having achieved “super-stare decisis” due to its repeated reaffirmation by the Court). which protected a bona fide constitutional right, Miranda — protecting only a prophylactic constitutional rule now shaken and subject to aspersion by the Vega Court94×94. See, e.g., Vega, 142 S. Ct. at 2106 n.5.  — may fall next.

In Vega, the Court claimed to accept Dickerson’s rationale that Miranda established a constitutionally based right that could not be legislatively overruled. But, in spite of that constitutional basis, it held that Miranda did not create a right for the purposes of § 1983 on account of its prophylactic nature, thus subverting Dickerson’s underlying reasoning. As Justice Kagan noted in dissent, this holding certainly hollowed out Miranda and “injures the right by denying the remedy.”95×95. Id. at 2111 (Kagan, J., dissenting). But for a Court increasingly less beholden to stare decisis, Vega goes further and provides a recipe for striking down rights framed in constitutional prophylaxis: begin by limiting § 1983 liability to weaken the constitutional foundations of any such right. One need look no further than Vega to see the possibilities: the Court’s crippling of the doctrinal underpinnings of Dickerson weakened the principles of stare decisis as applied to Miranda and opened the door for the Court to overturn Miranda itself.