Vol. 14 No. 14- Ninth Circuit Prohibition of Interrogations “Outside” Miranda

November 17, 1999

To: All Police Chiefs and Sheriffs

From: Paul R. Coble


On November 8, 1999, the United States Court of Appeals for the Ninth Circuit, acting in the case of California Attorneys For Criminal Justice, et al. vs. City of Santa Monica, et al. (reported at 99 DAR 11373), ruled that police violate a suspect’s Fifth Amendment right against self-incrimination when they continue to press forward with interrogation after the suspect has invoked his Miranda rights.

The Ninth Circuit further held that individual officers were not entitled to qualified immunity from suit, and thus could be held individually liable for any such constitutional violation.

In separate investigations undertaken by the Santa Monica and Los Angeles Police Departments, officers advised in-custody suspects of their Miranda rights. In each instance, the suspect invoked his rights and stated that he wanted to talk to an attorney before any further questioning. Despite these invocations, investigating officers continued to question the respective suspects with the understanding given by the officers to the suspects that any statements thereby obtained could not be used against them, and the understanding by the officers that such statements could only be used for impeachment at trial. This practice was based on training each Department had given its officers that it was permissible to continue the interrogation after invocation of Miranda, and this training was apparently based on earlier U.S. Supreme Court decisions holding that statements taken “outside” of Miranda warnings were admissible for impeachment.

The Ninth Circuit found that any interrogation after a suspect has invoked his Miranda rights is a deliberate violation of the suspect’s Fifth Amendment Rights, citing language in the original U.S. Supreme Court holding in Miranda that once a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” Miranda, 384 U.S. at 473-474.

Perhaps most troubling of all was the Ninth Circuit’s holding on the issue of the individual officers’ entitlement to qualified immunity.

Here, the Court of Appeals reasoned that the cases allowing impeachment on statements “outside” of Miranda were distinguishable from this case, and that the officers’ reliance on Department training and directives could not support immunity in the face of what this Court found to be a “clearly“ established right. Frankly, this seems to have put these and other officers on the horns of a dilemma where earlier courts, including the highest Court in the land, as well as the California Supreme Court, have held similar interrogations to be admissible for impeachment, and where the officers’ own Departments had provided training telling them that they can, and perhaps should, engage in such interrogation techniques.

Nonetheless, a three member panel of Ninth Circuit justices have ruled, and this ruling represents binding precedent throughout the Ninth Circuit (and thus throughout California) until and unless the decision is set aside or modified by either the Ninth Circuit hearing the case en banc or by the United States Supreme Court on a grant of certiorari

Therefore, our best advice to California law enforcement agencies is that they immediately publish a directive to all personnel stating that interrogations “outside” of Miranda are to cease immediately upon invocation by the suspect of his/her right to remain silent and/or right to counsel. For your convenience, we have included in this Alert the draft text of such a notice.

As always, before implementing this or any policy, consult your own legal counsel to ensure correct implementation of the law.

Should you have any questions regarding the above, or wish to discuss it in greater detail, please do not hesitate to contact our office at (562) 590-8280.



TO:               All Personnel

FROM:          Chief of Police/Sheriff

Subject:       Ninth Circuit Prohibition Of Interrogations “Outside” Miranda

Effective immediately and until further notice from this office, all personnel are directed to cease any in-custody interrogation of a suspect if the suspect has invoked his/her Miranda rights, whether this be by answering “No” to any of the waiver questions in a form advisement or by stating any words the reasonable meaning of which is that he/she wishes to remain silent, does not want to talk, and/or wants to talk to an attorney before further questioning.

This directive is based on the ruling by the United States Court of Appeals for the Ninth Circuit in California Attorneys For Criminal Justice, et al vs. City of Santa Monica, et al (reported at 99 DAR 11373).

All sworn personnel shall be provided a copy of this directive, and shall be required to sign or initial a copy of the directive indicating receipt.



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