Civil liability for violations of Miranda: the impact of Chavez v. Martinez.

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In Dickerson v. United States, (1) the Supreme Court of the United States opened the door to more civil suits against law enforcement officers when it held that the warning and waiver provisions of Miranda v. Arizona (2) reached "constitutional proportions." Very recently, in Chavez v. Martinez, (3) the Court, while not closing that door completely, narrowed the opening by limiting the circumstances under which an officer may be civilly liable for Miranda violations. This article examines the effects of Chavez on officer liability and makes recommendations regarding interrogation strategies that employ intentional violations of the rule in Miranda.

Potential for Liability Under Dickerson

When the Supreme Court decided Miranda and created the now famous warnings and waiver requirements, it recognized that its ruling was not constitutionally mandated. Rather, the Supreme Court referred to the Miranda provisions as a "prophylactic rule" (4) and invited Congress and the states to devise alternative means of protecting the Fifth Amendment right against compelled self-incrimination. (5) Accordingly, 2 years after Miranda was decided, Congress passed a statute that was designed to replace the mandatory Miranda requirements. (6) That statute was ignored by law enforcement and prosecutors for more than 30 years. Consequently, the Supreme Court had no opportunity to consider the validity of the statute until it granted review in the Dickerson case. (7)

At issue in Dickerson was the admissibility of a confession obtained in technical violation of Miranda. (8) The trial court, finding the confession to be voluntary, nevertheless suppressed it because of the Miranda violation. The Fourth Circuit Court of Appeals, however, reversed, finding that the confession was admissible under the federal statute that had replaced the mandatory requirements of Miranda. On review, the Supreme Court rejected the federal statute and reinstated the order of suppression. In doing so, the Supreme Court held that after more than 30 years, the Miranda ruling had reached "constitutional proportions" and could not be replaced by a statute.

The practical implication of the Dickerson decision is to open the door for increased civil suits against law enforcement officers based on allegations of Miranda violations. Title 42, Section 1983, U.S. Code provides that state and local law enforcement officers who, intentionally or through gross negligence, deprive individuals of their federal constitutional or statutory rights may be sued in federal court. A similar suit may be filed against federal law enforcement officers pursuant to the Supreme Court decision in Bivens v. Six Unknown Federal Narcotics Agents. (9) Prior to the decision in Dickerson, civil actions filed against law enforcement officers claiming violations of Miranda were easily defended on the grounds that Miranda was not constitutionally mandated and, therefore, could not support an action under either Section 1983 or Bivens. (10) The decision in Dickerson appeared to negate this defense.

Constitutional Basis for Suits Claiming Miranda Violations

Quite predictably, in the wake of Dickerson, a number of suits were filed against law enforcement officers claiming damages for violations of Miranda. The constitutional basis for these actions depends on the nature of the violation. As a result of Dickerson, even unintentional violations of Miranda could generate suits alleging violations of the Fifth Amendment Self-Incrimination Clause. Dickerson conferred constitutional weight to the Supreme Court's reasoning in Miranda that custodial interrogations, without the benefit of warnings and waivers, create a psychologically compelling atmosphere that violates the Fifth Amendment protection against compelled self-incrimination. Thus, even rudimentary violations of Miranda could conceivably result in civil actions in federal court.

Intentional violations of Miranda may engender civil suits under the additional constitutional theory that such violations are a denial of due process under both the Fifth and Fourteenth Amendments. (11) In the area of confessions, due process protects individuals from outrageous government behavior. (12) Consequently, civil suits alleging that intentional violations of Miranda constitute outrageous government behavior have found a foothold in some courts. (13)

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Chavez, v. Martinez

The Supreme Court's decision in Chavez essentially foreclosed the possibility of a successful civil suit being brought against law enforcement officers for simple, unintentional violations of Miranda. While it left open the possibility of civil suits for intentional violations, it narrowed the likelihood of success to the most egregious situations.

The plaintiff in Chavez, a man by the name of Oliverio Martinez, was shot multiple times during an altercation with two police officers. Shortly after the shooting, Officer Chavez, a patrol supervisor, arrived on the scene and accompanied Martinez to the hospital. Because of the severity of the injuries to Martinez, Chavez was concerned that he would not survive. Consequently, Officer Chavez questioned Martinez regarding the shooting and the events that led up to it while he was receiving medical treatment. Chavez never advised Martinez of his Miranda rights. Martinez admitted taking a gun from one of the two officers and pointing it at them.

Martinez, permanently blinded and paralyzed from the waist down by the shooting, was not criminally prosecuted and his statements were never used against him. Nevertheless, Martinez filed a civil suit under Section 1983, claiming that the interrogation of him violated both his Fifth Amendment right against compelled self-incrimination and his Fourteenth Amendment due process rights. Chavez filed a motion for dismissal on grounds of qualified immunity that ultimately was denied by the trial court and the Ninth Circuit Court of Appeals. (14) The Supreme Court of the United States granted review.

The decision in Chavez is very complex. Numerous justices filed concurring and dissenting opinions. A majority agreed that there was no Fifth Amendment self-incrimination violation, but the justices could not agree on the underlying reasons. A majority of the Court also concluded that Martinez should be given the opportunity to pursue a due process claim of outrageous government behavior. As a result, qualified immunity was granted on the self-incrimination violation, but the case was remanded to the lower court for further proceedings on the due process question.

Self-Incrimination Clause

The Fifth Amendment provides in part that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (15) Because Martinez was never prosecuted, the statement taken from him in violation of Miranda was never used against him in a criminal case. Consequently, four Supreme Court justices concluded that there was no Fifth Amendment Self-In-crimination Clause violation. (16) Two other justices (17) agreed that there was no violation, but felt that the reasoning of the other four justices was too simplistic. Rather, these justices opined there are circumstances under which the protections of the Fifth Amendment were extended beyond its "core"; however, this would require a "powerful showing" by the plaintiff that the exclusion of statements taken in violation of the amendment is an insufficient remedy. Because Martinez made no such showing, the fifth and sixth justices combined with the other four to grant qualified immunity on the claim of a self-incrimination clause violation.

The practical result of this portion of the Chavez decision is that statements taken in violation of Miranda that are suppressed, or otherwise never used to prosecute, do not violate the Fifth Amendment Self-Incrimination Clause and, therefore, cannot support a successful civil suit alleging a violation unless the plaintiff is able to make the unlikely "powerful showing" that suppression of the statement is not sufficient to remedy the violation. When Miranda violations are unintentional, it is inconceivable that such a "powerful showing" could be made. Even when violations are intentional, it is doubtful that courts would find suppression of the resulting statements an inadequate remedy unless intentional violations are so pervasive, or so egregious, that an additional deterrent is deemed necessary.

Due Process

Both the Fifth and the Fourteenth Amendments protect individuals from the denial of "life, liberty, or property, without due process of law." (18) The suppression of statements in a criminal case on due process grounds depends upon an analysis of whether the statements are involuntary or the product of "outrageous government behavior." (19) In civil cases, however, the due process analysis requires a showing that the government behavior was so outrageous that it "shocked the conscience" (20) of the court. Of course, "conscience shocking" is a rather nebulous standard; some courts' consciences seem more easily shocked than others. In an effort to standardize the analysis, the Supreme Court in County of Sacramento v. Lewis (21) noted that "the official conduct most likely to rise to the conscience-shocking level is the conduct intended to injure in some way unjustifiable by any government interest." (22) Consequently, only the most egregious infliction of injuries that are not, in any way, justified by legitimate interests of the government will support claims of due process violations.

Four justices in Chavez were satisfied that the intentional violation of Miranda did not deprive Martinez of his due process rights. These justices noted that Chavez did not interfere with Martinez' medical treatment nor did the inter-rogation exacerbate the injuries. Moreover, they recognized that the need to investigate a police shooting, particularly in light of the critical nature of the victim's injuries, was a justifiable government interest.

A majority of the Court, however, was not willing to deny Martinez the prerogative to pursue his claim of liability on due process grounds. Consequently, the case was remanded to the lower court to provide him that opportunity.

Practical Implications of Chavez v. Martinez

The issue before the Court in Chavez seemed relatively simple: does the taking of a statement without required Miranda warnings constitute a violation of the Fifth Amendment protection against compelled self-incrimination if it is never used in a criminal case? Unfortunately, the decision of the Court is anything but simple. Six different opinions were filed, with many justices concurring in part and dissenting in part. As a result, there is no absolutely clear rule of law that can be derived from this quagmire.

Undoubtedly, foremost in the mind of Officer Chavez is the fact that this case is not over. Mr. Martinez will have the opportunity to make his case for a Fourteenth Amendment Due Process violation sometime in the future. The success of that case will depend on whether the lower court is convinced that the actions of Officer Chavez were so egregious that they were unjustified by the government's interest in obtaining a statement from a critically injured victim of a police shooting. The final outcome of this case is unpredictable. Three Supreme Court justices found that "the need to investigate whether there had been police misconduct constituted a justifiable government interest, given the risk that key evidence would have been lost if Martinez had died without the authorities ever hearing his side of the story." (23) Others, however, compared Officer Chavez's conduct to "the kind of custodial interrogation that was once employed by the Star Chamber [and] by the Germans of the 1930s and early 1940s." (24)

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When this particular case is resolved, despite the outcome, there will remain a number of unresolved issues concerning the impact of Miranda violations. (25) Based on the Chavez decision, however, there are certain predictions and recommendations that can be made.

First, it is unlikely that unintentional violations of Miranda will result in successful civil suits. Statements that violate Miranda either are not used by the prosecutor or are suppressed by the criminal court. Consequently, unless plaintiffs can show that exclusion is an inadequate remedy, unintentional violations of Miranda do not violate the Fifth Amendment Self-Incrimination Clause. Moreover, unintentional violations are unlikely to "shock the conscience" of the court and, therefore, unlikely to support a successful due process claim. Nevertheless, as Miranda law becomes more complex, it is critical for departments to adequately train personnel regarding confessions law. The best way to avert liability under Section 1983 is to avoid the constitutional violations that underlie the civil actions.

Next, it is unquestionable that intentional violations of Miranda will continue to spur future civil actions against law enforcement officers. Despite the fact that there are legitimate uses for statements taken in violation of Miranda, (26) the very fact that officers have intentionally disregarded a Supreme Court rule will amount to "outrageous government behavior" in the opinion of some judges. Plaintiffs will undoubtedly be encouraged to file due process suits by the prospect of monetary damages awarded to deter such behavior.

Finally, there may be times when the risk of civil liability arguably is outweighed by the need for governmental action. In Chavez, for example, the need to interrogate Martinez to obtain information necessary to discipline a potentially unwarranted use of force or to defend a future civil action filed by Martinez or his survivors may outweigh the risks posed by the intentional Miranda violation. A strategy that calls for an intentional violation of Miranda, however, should not be left to the discretion of an individual officer. Rather, the formulation of such a strategy should involve the highest levels of management and include a balancing of the government interests and risks. Moreover, management should seek the advise of competent legal counsel well versed on Miranda law and acquainted with any predisposition of local judges toward intentional violations of Miranda.

Endnotes

1 530 U.S. 428 (2000).

2 384 U.S. 436 (1966).

3 Chavez v. Martinez, ___U.S. ___ (2003).

4 Id. Even after its decision in Dickerson, the Supreme Court continues to refer to Miranda as a prophylactic rule.

5 Miranda, 384 U.S., at 467.

6 18 U.S.C. [section] 3501.

7 For a detailed discussion of Dickerson, see Thomas D. Petrowski, "Miranda Revisited," FBI Law Enforcement Bulletin, August 2001. 25-32.

8 The lower court concluded that although Dickerson had been requested to come to the FBI and not arrested, custody occurred sometime during the questioning and, therefore, he should have been advised of his Miranda rights.

9 102 S. Ct. 2727 (1982).

10 Prior to Dickerson, there was some support in the Ninth Circuit for the argument that intentional violations of Miranda were a violation of due process and, therefore, could support a claim under both [section] 1983 and Bivens. For a discussion on the topic, see Kimberly A Crawford, "Intentional Violations of Miranda: A Strategy for Liability," The FBI Law Enforcement Bulletin, August 1997, 27-31.

11 The Fifth Amendment Due Process requirement, as written, applied only to the federal government. The Fourteenth Amendment Due Process clause was later adopted to hold states to the same standard.

12 See Arizona v. Fulminate, 111 S. Ct. 1245 (1991).

13 See, e.g., Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992).

14 Martinez v. Oxnard, 270 F.3d 852 (2001).

15 U.S. CONST. Amend. V. (emphasis added).

16 The four justices agreeing on this issue were Justice Thomas, Justice Scalia, Justice O'Connor, and Chief Justice Rehnquist.

17 Justice Souter wrote a concurring opinion that was joined in its entirety by Justice Breyer.

18 U.S. CONST. Amend. V and XIV.

19 Supra notes 11 and 12.

20 County of Sacramento v. Lewis, 523 U.S. 833 (1998).

21 Id.

22 Id. (internal quotation marks omitted).

23 Supra note 3. Justice Thomas wrote this part of the opinion that was concurred in by Justice Scalia and Chief Justice Rehnquist.

24 Supra note 3. (concurring and dissenting opinion written by Justice Stevens).

25 The Supreme Court has already granted certiorari in two cases involving Miranda violations. See State v. Seibert, 93 F.3d 700 (Mo. 2002) cert. granted 123 S. Ct. 2091 (2003); United States v. Patane, 304 F.3d 1013 (10th Cir. 2002) cert. granted 123 S. Ct. 1788 (2003).

26 In Michigan v. Tucker, 417 U.S. 433 (1974), the Supreme Court held that a Miranda violation that resulted in the identification of a witness did not preclude the government from calling that witness to testify at trial. In Oregon v. Elstad, 105 S. Ct. 1285 (1985), the Supreme Court similarly held that a second statement obtained from a custodial suspect following one taken in violation of Miranda is not necessarily a fruit of the poisonous tree and may be used at trial. Moreover, in Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S. 714 (1975), the Supreme Court concluded that statements taken in violation of Miranda may be used for impeachment purposes.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.