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En Banc on Behalf of the Court, and Ordered That No Further Petitions Shall Be Entertained

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En Banc on Behalf of the Court, and Ordered That No Further Petitions Shall Be Entertained FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TERENCE B. TEKOH, No. 18-56414 Plaintiff-Appellant, D.C. No. v. 2:16-cv-07297- GW-SK COUNTY OF LOS ANGELES; DENNIS STANGELAND, Sergeant; CARLOS VEGA, Deputy, ORDER Defendants-Appellees, and LOS ANGELES COUNTY SHERIFF’S DEPARTMENT; DOES, 1 TO 10, Defendants. Filed June 3, 2021 Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges. Order; Concurrence by Judge Miller; Dissent by Judge Bumatay 2 TEKOH V. COUNTY OF LOS ANGELES SUMMARY* Civil Rights The panel denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained. The panel opinion vacated the district court’s judgment on a jury’s verdict, reversed the district court’s judgment as to plaintiff’s requested jury instruction, and remanded for a new trial in an action alleging, in part, that plaintiff’s Fifth Amendment right against self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial. The panel held that in light of the Supreme Court’s decision in Dickerson v. United States, 530 U.S. 428 (2000), which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, where the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under 42 U.S.C. § 1983. Concurring in the denial of rehearing en banc, Judge Miller, joined by Judges Wardlaw and Murguia, stated that the Supreme Court’s cases—most importantly, its reaffirmation of Miranda in Dickerson v. United States, 530 U.S. 428 (2000)—made clear that the right guaranteed by * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TEKOH V. COUNTY OF LOS ANGELES 3 Miranda v. Arizona, 384 U.S. 436 (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. Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, Bennett, R. Nelson, Bress and VanDyke, stated that given the text and history of the Self-Incrimination Clause and the overwhelming weight of Supreme Court precedent, the court was wrong to rule that the lack of Miranda warnings by itself violates the Constitution for purposes of § 1983. Rather, Miranda is a procedural safeguard and the remedy for its violation is exclusion, not a § 1983 action. COUNSEL 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. 4 TEKOH V. COUNTY OF LOS ANGELES ORDER 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. IT IS SO ORDERED. MILLER, Circuit Judge, with whom WARDLAW and MURGUIA, Circuit Judges, join, concurring in the denial of rehearing en banc: The issue here is whether the right guaranteed by Miranda v. Arizona, 384 U.S. 436 (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 (2000)—make clear that the answer is yes. TEKOH V. COUNTY OF LOS ANGELES 5 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 [the Supreme] 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 (1989); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005); State Oil Co. v. Khan, 522 U.S. 3, 20 (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 12) and the “long history of the common law right” that preceded it (Dissent at 19) 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 (Scalia, J., dissenting); cf. Dissent at 11–12. 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. 6 TEKOH V. COUNTY OF LOS ANGELES 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 (1975); that there is a “public safety” exception to the warning requirement, New York v. Quarles, 467 U.S. 649 (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 (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. 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. 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,” TEKOH V. COUNTY OF LOS ANGELES 7 530 U.S. at 444—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 (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.
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