To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
“MIRANDA” AND PEACE OFFICER LIABILITY
July 29, 2003
Several clients asked if we would clarify our position regarding law enforcement continuing to question a custodial suspect after he/she invokes “Miranda.” The clients had received a recommendation to continue such questioning, even though statements could not be used against the suspect in the criminal case, in order to try and secure information from the suspect which might be of assistance if the suspect subsequently sues the agency claiming, for example, the use of excessive force. It has been, and continues to be, our advice that questioning should cease when “Miranda” is invoked.
It is settled law that statements against one’s interest, obtained from custodial suspects “outside Miranda,” are inadmissible in the prosecution’s case in chief. In addition, it is concluded that if the “Miranda” warnings were provided, but the process is determined to have been coercive and, therefore, the confession not voluntary, the statements cannot be used even for impeachment purposes.
The issue which creates great concern for us is whether questioning a custodial suspect “outside Miranda” violates his/her Due Process rights and, therefore, creates potential personal liability for the peace officer under 42 USC §1983. That issue was not decided in the U.S. Supreme Court case of Chavez v. Martinez (2003) 123 S. Ct. 1994.
In the Chavez case, the Court ruled that the 5th Amendment was not violated when the officer questioned Martinez “outside Miranda,” since no statements were used against the suspect in criminal prosecution. (The facts involved ongoing questioning of Martinez while he was in great pain, and while being treated at the hospital for gunshot wounds received during an altercation with police.) In a concurring opinion by Justice Souter, it was pointed out, in footnote #1, that “(t)he question whether the absence of “Miranda” warnings may be a basis for a section 1983 action under any circumstance is not before the court.”
Additionally, the majority in the Chavez case held that “(o)ur views on the proper scope of the Fifth Amendment’s Self-Incrimination Clause does not mean that police…abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment’s Due Process Clause, rather than the Fifth Amendment…would govern the inquiry in those cases and provide relief in appropriate circumstances.”
As a result, the case was remanded back to the lower court to determine whether respondent could pursue a claim of liability for a due process violation, based merely on the officer’s questioning the suspect after “Miranda” was invoked.
What adds to our concern for the interests of the individual officer is the Ninth Circuit decision in the case of California Attorneys for Criminal Justice v. Butts (1999) 195 F. 3d 1039, where the Court ruled that officers can be held personally liable for “Miranda” violations, even if they were trained to proceed in that fashion and were following their department policy. The U.S. Supreme Court refused to review the decision in Butts and, therefore, it is still the law as far as the Ninth Circuit (which includes California) is concerned.
Additionally, following Butts, the U.S. Supreme Court decided the case of Dickerson v.United States (2000) 530 U.S. 428 where it declined to overrule “Miranda,” and held that “Miranda” is a constitutional rule and that Congress cannot supercede it legislatively. The Dickerson court also held that there are “compelling pressures” inherent in custodial police interrogations and that the accused must be adequately and effectively appraised of his/her rights, and the exercise of those rights must be fully honored.
The Butts case held that a violation occurs when there is continued questioning after “Miranda” is invoked, and some additional coercive conduct exists. Therefore, might a court in the future determine that a confession is involuntary based on the inherent “coercive” “compelling pressures” of custodial interrogations? We have no way of knowing, but it leaves the officer potentially liable if a court does so rule. What we do know is that the Ninth Circuit, and the California Supreme Court, requires that questioning stop when “Miranda” is invoked.
Also, the U.S. Supreme Court, in Chavez, reiterated that the “Fifth Amendment privilege against compulsory self-incrimination…can be asserted in any proceeding, civil or criminal, administrative or judicial….” (Emphasis added). It is possible, therefore, that statements obtained “outside Miranda” might be barred from use in a civil lawsuit as well.
How this Impacts Your Agency?
We cannot know how this will “fall out” in the future, but our concern is protecting the officers from civil liability by avoiding it “falling” on them. The law is clear that “Miranda” warnings are to be provided to custodial suspects and statements obtained “outside Miranda” cannot be used in criminal prosecution. In People v. Neal, the California Supreme Court stated that such tactics are “unethical” and are “strongly disapproved.” It is also clear that the Ninth Circuit has already ruled (in Butts) that officers face potential personal liability for questioning a custodial suspect “outside Miranda.” As such, we must advise against utilizing that practice.
Please note: The above is our legal opinion – it is just that, our opinion. The only opinion of importance for each of you is the opinion of your department’s attorney. Therefore, and as always, we urge that you confer with and secure advice from your agency’s designated legal advisor. You need to then provide training for your officers based on that legal advice.