Vogt v. City of Hays

PUBLISH FILED

United States Court of

UNITED STATES COURT OF APPEALS Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

_________________________________

January 4, 2017

Elisabeth A. Shumaker

MATTHEW JACK DWIGHT VOGT, Clerk of Court

Plaintiff - Appellant,

v. No. 15-3266

CITY OF HAYS, KANSAS; CITY

OF HAYSVILLE, KANSAS; DON

SCHEIBLER; JEFF WHITFIELD;

KEVIN SEXTON; BRANDON

WRIGHT,

Defendants - Appellees.

_________________________________

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 6:15-CV-01150-JTM-GEB)

_________________________________

Morgan L. Roach, McCauley & Roach, LLC, Kansas City, Missouri,

for Plaintiff-Appellant.

David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka,

Kansas, David G. Seely, Fleeson, Gooing, Coulson & Kitch, L.L.C.,

Wichita, and Jeremy K. Schrag, Lewis Brisbois Bisgaard & Smith

LLP, Wichita, Kansas (Alan L. Rupe, and Jessica L. Skladzien, Lewis

Brisbois Bisgaard & Smith, LLP, Wichita, Kansas, with them on the

brief), for Defendants-Appellees.

_________________________________

Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.

_________________________________

BACHARACH, Circuit Judge.

_________________________________

Mr. Matthew Vogt alleges a violation of the Fifth Amendment

through the compulsion to incriminate himself and the use of his

compelled statements in a criminal case. Based on the alleged Fifth

Amendment violation, Mr. Vogt invokes 42 U.S.C. § 1983, suing (1)

the City of Hays, Kansas; (2) the City of Haysville, Kansas; and (3)

four police officers. The district court dismissed the complaint for

failure to state a claim, reasoning that

 the right against self-incrimination is only a trial right

and

 Mr. Vogt’s statements were used in pretrial proceedings,

but not in a trial.

We draw four conclusions:

1. The Fifth Amendment is violated when criminal

defendants are compelled to incriminate themselves and

the incriminating statement is used in a probable cause

hearing.

2. The individual officers are entitled to qualified immunity.

3. The City of Haysville did not compel Mr. Vogt to

incriminate himself.

4. Mr. Vogt has stated a plausible claim for relief against

the City of Hays.

Accordingly, we (1) affirm the dismissal of the claims against the

four police officers and Haysville and (2) reverse the dismissal of the

claim against the City of Hays.

2

I. Mr. Vogt alleges that his compelled statements were used in

a criminal case.

Because this appeal is based on a dismissal for failure to state a

valid claim, we credit the factual allegations in the complaint. Brown

v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).

Mr. Vogt was employed as a police officer with the City of

Hays. In late 2013, Mr. Vogt applied for a position with the City of

Haysville’s police department. During Haysville’s hiring process,

Mr. Vogt disclosed that he had kept a knife obtained in the course of

his work as a Hays police officer.

Notwithstanding this disclosure, Haysville offered the job to

Mr. Vogt. But his disclosure about the knife led Haysville to make

the offer conditional: Mr. Vogt could obtain the job only if he

reported his acquisition of the knife and returned it to the Hays

police department. Two Haysville police officers said that they

would follow up with Hays to ensure that Mr. Vogt complied with the

condition.

Mr. Vogt satisfied the condition, reporting to the Hays police

department that he had kept the knife. The Hays police chief reacted

by ordering Mr. Vogt to submit a written report concerning his

possession of the knife. Mr. Vogt complied, submitting a vague one-

3

sentence report. He then provided Hays with a two-week notice of

resignation, intending to accept the new job with Haysville.

In the meantime, the Hays police chief began an internal

investigation into Mr. Vogt’s possession of the knife. In addition, a

Hays police officer required Mr. Vogt to give a more detailed

statement in order to keep his job with the Hays police department.

Mr. Vogt complied, and the Hays police used the additional statement

to locate additional evidence.

Based on Mr. Vogt’s statements and the additional evidence,

the Hays police chief asked the Kansas Bureau of Investigation to

start a criminal investigation. In light of this request, the Hays police

department supplied Mr. Vogt’s statements and additional evidence

to the Kansas Bureau of Investigation. The criminal investigation led

the Haysville police department to withdraw its job offer.

Mr. Vogt was ultimately charged in Kansas state court with two

felony counts related to his possession of the knife. Following a

probable cause hearing, the state district court determined that

probable cause was lacking and dismissed the charges.

This suit followed, with Mr. Vogt alleging use of his

statements (1) to start an investigation leading to the discovery of

additional evidence concerning the knife, (2) to initiate a criminal

investigation, (3) to bring criminal charges, and (4) to support the

4

prosecution during the probable cause hearing. Mr. Vogt argues that

these uses of his compelled statements violated his right against self-

incrimination.

II. Standard of Review

We engage in de novo review of the district court’s dismissal.

Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015).

To survive the motion to dismiss, Mr. Vogt had to plead enough facts

to create a facially plausible claim. Khalik v. United Air Lines, 671

F.3d 1188, 1190 (10th Cir. 2012). The claim is facially plausible if

Mr. Vogt pleaded enough factual content to allow “the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. The Meaning of a “Criminal Case” Under the Fifth

Amendment

The Fifth Amendment 1 protects individuals against compulsion

to incriminate themselves “in any criminal case.” U.S. Const. amend.

V. This amendment prohibits compulsion of law enforcement officers

to make self-incriminating statements in the course of employment.

Garrity v. New Jersey, 385 U.S. 493, 500 (1967). As a law

enforcement officer, Mr. Vogt enjoyed protection under the Fifth

1

The Fifth Amendment applies to the states through

incorporation of the Fourteenth Amendment. Malloy v. Hogan, 378

U.S. 1, 6 (1964).

5

Amendment against use of his compelled statements in a criminal

case.

The district court held that Mr. Vogt had not stated a valid

claim under the Fifth Amendment because the incriminating

statements were never used at trial. We disagree, concluding that the

phrase “criminal case” includes probable cause hearings.

A. Our precedents provide conflicting signals on whether

the term “criminal case” includes pretrial proceedings

as well as the trial.

The U.S. Supreme Court has not conclusively defined the scope

of a “criminal case” under the Fifth Amendment. In dicta, the

Supreme Court suggested in a 1990 opinion, United States v.

Verdugo-Urquidez, that the right against self-incrimination is only a

trial right. 494 U.S. 259, 264 (1990).

But the Supreme Court later appeared to retreat from that dicta.

In Mitchell v. United States, for instance, the Court held that the

right against self-incrimination extends to sentencing hearings. 526

U.S. 314, 320-21, 327 (1999). The Court reasoned that “[t]o maintain

that sentencing proceedings are not part of ‘any criminal case’ is

contrary to the law and to common sense.” Id. at 327.

Even more recently, the Court again addressed the scope of the

Fifth Amendment in Chavez v. Martinez, 538 U.S. 760 (2003). In

Chavez, the plaintiff sued a police officer under § 1983, alleging

6

coercion of self-incriminating statements in violation of the Fifth

Amendment. 538 U.S. at 764-65. Writing for himself and two other

justices, Justice Thomas concluded that (1) the plaintiff had failed to

state a valid claim because he had not been charged with a crime and

(2) the plaintiff’s statements had not been used in a criminal case. Id.

at 766.

Though the Court did not produce a majority opinion on the

Fifth Amendment issue, Justice Thomas’s plurality opinion explained

that “mere coercion does not violate the text of the Self-

Incrimination Clause absent use of the compelled statements in a

criminal case against the witness.” Id. at 769. Justice Thomas added

that “[a] ‘criminal case’ at the very least requires the initiation of

legal proceedings.” Id. at 766. Two other justices agreed with the

outcome, reasoning that the Fifth Amendment’s text “focuses on

courtroom use of a criminal defendant’s compelled, self-

incriminating testimony.” Id. at 777 (Souter, J., concurring in the

judgment) (emphasis added).

The Chavez Court did not decide “the precise moment when a

‘criminal case’ commences.” Id. at 766-67. Justice Thomas cited

Verdugo-Urquidez, but apparently did not read it to limit the Fifth

Amendment to use at trial. See id. at 767.

7

Three other justices stated that a violation of the Self-

Incrimination Clause is complete the moment a confession is

compelled. Id. at 795 (Kennedy, J., concurring in part and dissenting

in part). Thus, even in light of Verdugo-Urquidez, these three

justices concluded that the Fifth Amendment extended beyond use of

a compelled statement at trial. Id. at 792.

Following Chavez, a circuit split developed over the definition

of a “criminal case” under the Fifth Amendment. The Third, Fourth,

and Fifth Circuits have stated that the Fifth Amendment is only a

trial right. 2 See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)

(“[A] plaintiff may not base a § 1983 claim on the mere fact that the

police questioned her in custody without providing Miranda warnings

when there is no claim that the plaintiff’s answers were used against

her at trial.”); Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)

(“[The plaintiff] does not allege any trial action that violated his

Fifth Amendment rights; thus, ipso facto, his claim fails on the

[Chavez] plurality’s reasoning.”); Murray v. Earle, 405 F.3d 278,

2

The defendants contend that the Sixth Circuit Court of Appeals

has also held that the Fifth Amendment is only a trial right.

Appellees’ Br. at 20-21. But the court did so only in an unpublished

opinion. Smith v. Patterson, 430 F. App’x 438, 441 (6th Cir. 2011).

The court’s unpublished opinions do not constitute binding precedent

even in the Sixth Circuit. Graiser v. Visionworks of America, Inc.,

819 F.3d 277, 283 (6th Cir. 2016).

8

285 (5th Cir. 2005) (“The Fifth Amendment privilege against self-

incrimination is a fundamental trial right which can be violated only

at trial, even though pre-trial conduct by law enforcement officials

may ultimately impair that right.”).

In contrast, the Second, Seventh, and Ninth Circuits have held

that certain pretrial uses of compelled statements violate the Fifth

Amendment. For example, the Second Circuit has applied Chavez to

hold that a bail hearing is part of a criminal case under the Fifth

Amendment. Higazy v. Templeton, 505 F.3d 161, 171, 173 (2d Cir.

2007). The Seventh Circuit has similarly held that a criminal case

under the Fifth Amendment includes not only bail hearings but also

suppression hearings, arraignments, and probable cause hearings.

Best v. City of Portland, 554 F.3d 698, 702-03 (7th Cir. 2009)

(suppression hearing); Sornberger v. City of Knoxville, 434 F.3d

1006, 1027 (7th Cir. 2006) (bail hearings, arraignments, and probable

cause hearings). And the Ninth Circuit has concluded that a Fifth

Amendment violation occurs when “[a] coerced statement . . . has

been relied upon to file formal charges against the declarant, to

determine judicially that the prosecution may proceed, and to

determine pretrial custody status.” See Stoot v. City of Everett, 582

F.3d 910, 925 (9th Cir. 2009).

9

Different approaches have emerged because the Chavez Court

declined to pinpoint when a “criminal case” begins. See Koch v. City

of Del City, 660 F.3d 1228, 1245 (10th Cir. 2011) (noting that “the

plurality in Chavez explicitly declined to decide ‘the precise moment

when a “criminal case” commences’”). Like the Supreme Court, we

have not yet defined the starting point for a “criminal case.” See id.

at 1246 (avoiding this issue by holding that at the time of the

plaintiff’s arrest, “it was not clearly established that an individual

has a Fifth Amendment right to refuse to answer an officer’s

questions during a Terry stop”); Eidson v. Owens, 515 F.3d 1139,

1149 (10th Cir. 2008) (declining to define the scope of the right

against self-incrimination because the plaintiff “never incriminated

herself during a custodial interrogation”).

The defendants argue that we have consistently held that the

Fifth Amendment right is only a trial right. We disagree.

In support of their argument, the defendants cite our opinions

in Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976), and Pearson v.

Weischedel, 349 F. App’x 343 (10th Cir. 2009) (unpublished). These

opinions do not help in answering our question. In Bennett, we held

that civil liability may not arise from (1) failure to give Miranda

warnings or (2) testimony about compelled statements. 545 F.2d at

1263-64. These scenarios are not involved here. And in our

10

unpublished opinion in Pearson, we rejected a Fifth Amendment

claim, stating that the plaintiff had pleaded guilty and had never gone

to trial. Pearson, 349 F. App’x at 348. Our analysis was brief and

omitted discussion of Chavez. Thus, Pearson does not aid our

inquiry.

In addition, the defendants read In re Grand Jury Subpoenas

Dated Dec. 7 & 8 (Stover), 40 F.3d 1096 (10th Cir. 1994), to suggest

that a violation of the right against self-incrimination occurs only at

trial. This suggestion is based on a questionable interpretation of the

opinion. In Stover, the parties agreed that a Fifth Amendment

violation occurs when a grand jury returns an indictment based on a

compelled statement. 40 F.3d at 1100-01. Notwithstanding the

parties’ agreement on this issue, we quoted language from an earlier

opinion describing the Fifth Amendment as a trial right. See id. at

1103 (“The time for protection [of the right against self-

incrimination] will come when, if ever, the government attempts to

use [allegedly incriminating] information against the defendant at

trial.” (quoting United States v. Peister, 631 F.2d 658, 662 (10th Cir.

1980))).

Though we quoted this restrictive language, we also suggested

in dicta that the parties had correctly assumed that the Fifth

Amendment is triggered when a compelled statement is used during

11

grand jury proceedings. See id. at 1103 (“If an officer, whose

compelled statement has been considered by the grand jury,

ultimately is indicted, that officer will be able to challenge the

indictment and the government will be required to prove that its

evidence derives entirely from legitimate sources or that the grand

jury’s exposure to the officer’s statement was harmless.”). Thus,

Stover arguably suggests that the right against self-incrimination is

not simply a trial right.

* * *

These precedents supply conflicting signals on whether the

term “criminal case” extends beyond the trial itself. The dicta in

Verdugo-Urquidez suggests that the term “criminal case” refers only

to the trial. This dicta would ordinarily guide us, for Supreme Court

dicta is almost as influential as a Supreme Court holding. Indep. Inst.

v. Williams, 812 F.3d 787, 798 n.13 (10th Cir. 2016). But after

deciding Verdugo-Urquidez, the Supreme Court interpreted the term

“criminal case” in Mitchell to include sentencing proceedings. And

even later, the Supreme Court declined in Chavez to define when a

“criminal case” begins.

Like the Supreme Court, we have declined until now to

unequivocally state whether the term “criminal case” covers pretrial

proceedings as well as the trial. Precedents like Stover provide

12

conflicting signals without squarely deciding the issue. Nonetheless,

today’s case requires us to decide whether the term “criminal case”

covers at least one pretrial proceeding: a hearing to determine

probable cause.

B. The right against self-incrimination applies to use in a

probable cause hearing as well as at trial.

To decide this issue, we join the Second, Seventh, and Ninth

Circuits, concluding that the right against self-incrimination is more

than a trial right. In reaching this conclusion, we rely on

 the text of the Fifth Amendment, which we interpret in

light of the common understanding of the phrase

“criminal case,” and

 the Framers’ understanding of the right against self-

incrimination.

The Fifth Amendment provides that no person shall be

“compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V (emphasis added). The text of the Fifth

Amendment does not contain

 the term “trial,” which appears in the next two

amendments, or

 the term “criminal prosecution,” which is used in the next

amendment.

See U.S. Const. amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .”); id. amend.

13

VII (“In suits at common law . . . the right of trial by jury shall be

preserved . . . .”).

The Supreme Court discussed the distinction between the

language of the Fifth and Sixth Amendments in Counselman v.

Hitchcock, 142 U.S. 547 (1892), overruled in part on other grounds

by Kastigar v. United States, 406 U.S. 441 (1972). In Counselman,

the government argued that a witness could not invoke the Fifth

Amendment in a grand jury proceeding because a “criminal case” did

not exist. 142 U.S. at 562-63. The Supreme Court rejected this

argument. After analyzing the Fifth Amendment’s text and

underlying purpose, the Court held that the witness could plead the

Fifth Amendment during a grand jury proceeding. Id. In the course of

its analysis, the Court reasoned that the language “criminal case” is

broader than the Sixth Amendment’s phrase “criminal prosecution.”

Id.

We agree with the Counselman Court that the term “criminal

case” is broader than the term “criminal prosecution.” Indeed, on its

face, the term “criminal case” appears to encompass all of the

proceedings involved in a “criminal prosecution.”

“The Constitution was written to be understood by the voters;

its words and phrases were used in their normal and ordinary as

distinguished from technical meaning . . . .” United States v.

14

Sprague, 282 U.S. 716, 731 (1931). To determine the commonly

understood meaning of the phrase “criminal case” at the time of

ratification (1791), we examine dictionary definitions from the

Founding era. See Gregory E. Maggs, A Concise Guide to Using

Dictionaries from the Founding Era to Determine the Original

Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014);

see also William M. Carter, Jr., Race, Rights, and the Thirteenth

Amendment: Defining the Badges and Incidents of Slavery, 40 U.C.

Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous

dictionaries “obviously . . . provide some guidance to the commonly

understood meaning of a particular word at the time that word was

used in the constitutional text”).

The most authoritative dictionary of that era was Noah

Webster’s 1828 dictionary, An American Dictionary of the English

Language. See John A. Sterling, Above the Law: Evolution of

Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000)

(stating that most historians use Noah Webster’s 1828 dictionary

when trying to determine the meaning of words during adoption of

the Constitution); see also Charles Wood, Losing Control of

America’s Future—The Census, Birthright Citizenship, and Illegal

Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah

Webster’s 1828 dictionary was “the first and for many years the

15

authoritative American dictionary”); Steven G. Calabresi & Andrea

Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev.

1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as

“an incredible achievement” and as a “dominant” source since its

publication); Gregory E. Maggs, A Concise Guide to Using

Dictionaries from the Founding Era to Determine the Original

Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90

(2014) (stating that the Supreme Court often cites Noah Webster’s

1828 dictionary as evidence of the original meaning of the

Constitution, perhaps based on a belief “that the dictionary may

reflect better the ways in which Americans used and understood the

words in the Constitution”). Webster’s 1828 dictionary defines

“case” as “[a] cause or suit in court,” stating that the term “is nearly

synonymous with cause.” Noah Webster, Case, An American

Dictionary of the English Language (1st ed. 1828). And the

dictionary defines the “nearly synonymous” term “cause” as “[a] suit

or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary

broadly defines “case” as a “thing, matter, question.” N. Bailey, The

Universal Etymological English Dictionary, Case (26th ed. 1789). 3

3

The Founders recognized that a word’s meaning often changes

over time. See Caleb Nelson, Originalism and Interpretive

Conventions, 70 U. Chi. L. Rev. 519, 534 (2003) (“Americans of the

16

The Founders’ understanding of the term “case” suggests that

the Fifth Amendment encompasses more than the trial itself. See

Donald Dripps, Akhil Amar on Criminal Procedure and

Constitutional Law: “Here I Go Down that Wrong Road Again,” 74

N.C. L. Rev. 1559, 1627 (1996). 4 “If the Framers had meant to

founding generation tended to agree with [Samuel Johnson, the 18th

century’s leading lexicographer] that language change was

inevitable.”). But modern legal dictionaries define “case” much as

our Founders did. See Black’s Law Dict. 258 (Bryan A. Garner ed.,

10th ed. 2014) (defining “case” as “[a] civil or criminal proceeding,

action, suit, or controversy at law or in equity”); A Handbook of

Criminal Law Terms 84 (Bryan A. Garner ed., 2000) (defining “case”

as “[a] proceeding, action, suit, or controversy at law or in equity”);

Dict. of Legal Terms 70 (Steven H. Gifis, 4th ed. 2008) (defining

“case” as “an action, cause, suit, or controversy, at law or in

equity”); see also Martin H. Redish & Adrianna D. Kastanek,

Settlement Class Actions, the Case-or-Controversy Requirement, and

the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 565

(2006) (“[C]urrent-day legal dictionaries define ‘case’ as a

justiciable ‘action or suit,’ or an ‘argument.’” (footnotes omitted)).

4

Professor Dripps stated:

A “case” in any event is not necessarily identical to a

“prosecution.” The Sixth Amendment uses the latter term,

in dealing with the criminal trial. The Fifth Amendment,

by contrast, contains a miscellany of rights, some against

criminal and some against civil liabilities. We speak

routinely of police investigators working on a case before

they have a suspect. If we think of a “case” as a potential

“prosecution” we can square the text of the Fifth

Amendment with its history.

Donald Dripps, Akhil Amar on Criminal Procedure and

Constitutional Law: “Here I Go Down that Wrong Road Again,” 74

N.C. L. Rev. 1559, 1627 (1996) (footnotes omitted).

17

restrict the right to ‘trial,’ they could have said so.” Thomas Y.

Davies, Farther and Farther from the Original Fifth Amendment: The

Recharacterization of the Right Against Self-Incrimination as a

“Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014

(2003).

This interpretation is supported by the Supreme Court’s opinion

in Blyew v. United States, 80 U.S. 581 (1871). In Blyew, the Supreme

Court addressed the meaning of the word “cases” in Article III’s

reference, “all cases affecting ambassadors, other public minsters,

and consuls.” 80 U.S. at 594. The Blyew Court explained that “[t]he

words ‘case’ and ‘cause’ are constantly used as synonyms in statutes

and judicial decisions, each meaning a proceeding in court, a suit, or

action.” Id. at 595. Like the dictionary definitions from 1828 to now,

Blyew defines “case” broadly, suggesting that a “criminal case” is

not limited to the criminal trial.

We are aided not only by Founding-era dictionary definitions

and Blyew but also by the Framers’ understanding of the phrase “in

any criminal case.” We have few contemporaneous clues of that

understanding, for “references to the privilege [against self-

incrimination] are scarce in the literature and debates surrounding

the ratification of the Constitution and the Bill of Rights.” Michael

Edmund O’Neill, The Fifth Amendment in Congress: Revisiting the

18

Privilege Against Compelled Self-Incrimination, 90 Geo. L.J. 2445,

2486 (2002). But the few existing clues suggest that the Framers

viewed the Fifth Amendment as a right in pretrial proceedings as

well as at trial.

One clue involves the changes in the Fifth Amendment from

drafting to ratification. The amendment had been drafted by James

Madison, who omitted the phrase “criminal case”:

No person shall be subject, except in cases of

impeachment, to more than one punishment or one trial

for the same offence; nor shall be compelled to be a

witness against himself; nor be deprived of life, liberty,

or property, without due process of law; nor be obliged to

relinquish his property, where it may be necessary for

public use, without just compensation.

James Madison, Remarks in Debate in the House of Representatives

(June 8, 1789) (emphasis added), reprinted in 1 Debates and

Proceedings in the Congress of the United States 448, 451-52

(Joseph Gales ed., 1834); United States Congress, Debates and

Proceedings in the Congress of the United States 451-52

(Washington, D.C. 1834). This language “applied to civil as well as

criminal proceedings and in principle to any stage of a legal inquiry,

from the moment of arrest in a criminal case, to the swearing of a

deposition in a civil one.” Leonard W. Levy, Origins of the Fifth

Amendment 423 (1968).

19

In the floor debate on whether to adopt the Bill of Rights,

Representative Laurance expressed concern that Madison’s wording

would conflict with “laws passed.” Statement of Representative John

Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in

the Congress of the United States 782, 782. To avoid this conflict,

Representative Laurance proposed to add the phrase “in any criminal

case.” Id. Representative Laurance’s language was accepted in the

House and Senate. Leonard W. Levy, Origins of the Fifth Amendment

424-26 (1968).

It is unclear which “laws” Representative Laurance was talking

about. One possibility was the proposed Judiciary Act, which would

allow the judiciary to compel production of documents in civil

cases. 5 See United States v. Hubbell, 530 U.S. 27, 53-54 n.3 (2000)

(Thomas, J., concurring). Another possibility was the Collections

Act, which allowed officials to require oaths in customs declarations.

Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas

Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.

Rev. 547, 705 n.450 (1999). But whichever law was at risk,

5

When Representative Laurance proposed to add the phrase “in

any criminal case,” the Judiciary Act of 1789 had passed in the

Senate and remained pending in the House of Representatives.

Michael Edmund O’Neill, The Fifth Amendment in Congress:

Revisiting the Privilege Against Compelled Self-Incrimination, 90

Geo. L.J. 2445, 2484 (2002).

20

Representative Laurance was apparently trying to distinguish

between potential criminal liability and civil liability. See Thomas Y.

Davies, Farther and Farther from the Original Fifth Amendment: The

Recharacterization of the Right Against Self-Incrimination as a

“Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017

(2003) (“[R]egardless of which provision Laurance referred to, it is

still the case that his concern was not to limit the right to criminal

trials as such but only to preserve the distinction that the right

applied only to potential criminal liability rather than civil

liability.”).

When Representative Laurance proposed to confine the Fifth

Amendment to a “criminal case,” there was a consensus that the right

against self-incrimination was not limited to a suspect’s own trial. To

the contrary, “the historical sources show that the right against self-

accusation was understood to arise primarily in pretrial or pre-

prosecution settings rather than in the context of a person’s own

criminal trial.” Id. at 1017-18. If this right were limited to one’s own

trial, the right would have served little purpose, for criminal

defendants were then unable to testify in their own criminal cases.

See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that

when the United States was formed, “criminal defendants were

deemed incompetent as witnesses”).

21

The most natural place for concern about compelled testimony

would have been in proceedings outside of criminal trials, such as

grand jury proceedings. See David Rossman, Conditional Rules in

Criminal Procedure: Alice in Wonderland Meets the Constitution, 26

Ga. St. U.L. Rev. 417, 488 (2010).

After adopting Representative Laurance’s language, the Senate

reorganized the cluster of rights that ultimately went into the Fifth

and Sixth Amendments. “In what was to be the Sixth Amendment the

Senate clustered together the procedural rights of the criminally

accused after indictment.” Leonard W. Levy, Origins of the Fifth

Amendment 427 (1968); see also Thomas Y. Davies, Farther and

Farther from the Original Fifth Amendment: The Recharacterization

of the Right Against Self-Incrimination as a “Trial Right” in Chavez

v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth

Amendment plainly deals with rights that protect ‘the accused’

during the court phase of prosecutions, including trials.”). This

grouping of Sixth Amendment rights omitted the right against self-

incrimination, which was put into the Fifth Amendment with other

rights that unambiguously extended to pretrial proceedings as well as

the trial:

That the self-incrimination clause did not fall into the

Sixth Amendment indicated that the Senate, like the

House, did not intend to follow the implication of

22

[Section 8 of the 1776 Virginia Declaration of Rights]

. . . that the right not to give evidence against oneself

applied merely to the defendant on trial. The Sixth

Amendment, referring explicitly to the accused, protected

him alone. Indeed the Sixth Amendment, with the right of

counsel added, was the equivalent of Virginia’s Section 8

and included all of its rights except that against self-

incrimination. Thus, the location of the self-incrimination

clause in the Fifth Amendment rather than the Sixth

proves that the Senate, like the House, did not intend to

restrict that clause to the criminal defendant only nor

only to his trial. The Fifth Amendment, even with the

self-incrimination clause restricted to criminal cases, still

puts its principles broadly enough to apply to witnesses

and to any phase of the proceedings.

Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see

also Thomas Y. Davies, Farther and Farther from the Original Fifth

Amendment: The Recharacterization of the Right Against Self-

Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L.

Rev. 987, 1009-13 (2003) (“[T]he right against compelled self-

accusation is in the wrong amendment to be a ‘trial right.’”); Michael

J. Zydney Mannheimer, Ripeness of Self-Incrimination Clause

Disputes, 95 J. Crim. L. & Criminology 1261, 1322 (2005) (“It

appears that the placement of the Self-Incrimination Clause in the

Fifth Amendment rather than the Sixth signifies that a ‘criminal case’

can exist before a ‘criminal prosecution[]’ commences.” (alteration

in original)).

In sum, there is nothing to suggest that the Framers were

seeking to confine the right against self-incrimination to trial. The

23

Founders apparently viewed the right more broadly, envisioning it to

apply beyond the trial itself.

The defendants argue that this interpretation of the Fifth

Amendment is impractical because pretrial proceedings are often

used to determine whether evidence is admissible at trial. We

disagree.

For this argument, the defendants contend that courts have held

in other contexts that evidence may be used in pretrial proceedings

even if the evidence would be inadmissible at trial. 6 The defendants

attempt to import this practice into the Fifth Amendment context.

This attempt avoids the question by assuming that the use of

compelled statements in pretrial proceedings is not rendered

inadmissible by the Fifth Amendment. If the Fifth Amendment

applies to pretrial proceedings, the evidence would be considered

inadmissible in pretrial proceedings as well as at trial. As a result,

the defendants’ argument does not help us decide whether the Fifth

Amendment precludes use of compelled statements in pretrial

proceedings.

6

The defendants also observe that the Fifth Amendment does not

apply to physical evidence. Appellees’ Br. at 25. But the defendants

do not tie this observation to their argument for limiting the Fifth

Amendment to a trial right.

24

* * *

Mr. Vogt alleged that his compelled statements had been used

in a probable cause hearing. As a result, we conclude that Mr. Vogt

has adequately pleaded a Fifth Amendment violation consisting of

the use of his statements in a criminal case. 7

IV. We affirm the dismissal of the claims against the individual

police officers and the City of Haysville.

Though we conclude that Mr. Vogt has adequately pleaded the

use of his compelled statements in a criminal case, we affirm the

dismissal of the (1) claims against the four police officers based on

7

The defendants argue that Mr. Vogt

is not entitled to rely upon an inference that his alleged

admissions were “admitted into evidence through witness

testimony.” Aplt. Brief, p. 31. No facts have been pled

regarding the admission of any self-incriminatory

statements into evidence or any witness testimony based

thereon, and such facts cannot be reasonably inferred,

because they are flatly inconsistent with the fact that the

charges against Vogt were dismissed. The only reasonable

inference to be drawn from the fact of dismissal is that

Vogt’s admissions (if any) were not admitted into

evidence by the court.

Appellees’ Br. at 37. We disagree. Mr. Vogt’s complaint states that

the “compelled statements and fruits thereof were used against him in

a criminal case.” Appellant’s App. at 15. At this stage, we can

reasonably infer that these statements were used to support probable

cause.

25

qualified immunity and (2) claims against the City of Haysville based

on its lack of compulsion in Mr. Vogt’s making of a self-

incriminating statement.

A. The four police officers are entitled to qualified

immunity.

We conclude that the four police officers are protected by

qualified immunity.

Qualified immunity would protect the officers from suit in the

absence of factual allegations plausibly showing the violation of a

clearly established constitutional right. Schwartz v. Booker, 702 F.3d

573, 579 (10th Cir. 2012).

We apply this test to the constitutional violation: compulsion

of self-incriminating statements that were ultimately used in a

probable cause hearing. We have already decided that Mr. Vogt’s

right against self-incrimination was violated when his compelled

statements were used in a probable cause hearing in 2014. 8 For the

sake of argument, we will also assume that this right was violated in

2013 and 2014 when Mr. Vogt’s compelled statements were allegedly

used to develop investigatory leads, initiate a criminal investigation,

8

We need not decide whether uses before the probable cause

hearing would have constituted additional violations of the Fifth

Amendment.

26

and bring charges. Thus, we must decide whether Mr. Vogt’s Fifth

Amendment right was clearly established when these violations took

place. In our view, the state of the law was not clearly established

when Mr. Vogt’s compelled statements were allegedly used.

For a constitutional right to be clearly established, “there must

be a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found

the law to be as [Mr. Vogt] maintains.” Price-Cornelison v. Brooks,

524 F.3d 1103, 1108 (10th Cir. 2008).

Until today, the applicability of the Fifth Amendment to

pretrial proceedings remained unsettled, for the Supreme Court had

declined to decide “the precise moment when a ‘criminal case’

commences” 9 and we had declined to decide whether the Fifth

Amendment applied to pretrial proceedings. 10 And outside our circuit,

courts had disagreed about the applicability of the Fifth Amendment

9

Chavez v. Martinez, 538 U.S. 760, 766-67 (2003) (plurality

opinion).

10

See Koch v. City of Del City, 660 F.3d 1228, 1245 (10th Cir.

2011) (avoiding this issue by concluding that when the plaintiff was

arrested, “it was not clearly established that an individual has a Fifth

Amendment right to refuse to answer an officer’s questions during a

Terry stop”); Eidson v. Owens, 515 F.3d 1139, 1149 (10th Cir. 2008)

(refraining from defining the scope of the right against self-

incrimination because the plaintiff “never incriminated herself during

a custodial interrogation”).

27

to pretrial proceedings. See Mocek v. Albuquerque, 813 F.3d 912, 929

n.9 (10th Cir. 2015) (“A circuit split will not satisfy the clearly

established prong of qualified immunity.”). Thus, when the police

officers acted, they could not have known that the Fifth Amendment

would be violated by the eventual use of the compelled statement to

develop investigatory leads, initiate a criminal investigation, bring

charges, or support the prosecution in a probable cause hearing. As a

result, the alleged constitutional violation was not clearly

established.

In similar circumstances, the Ninth Circuit Court of Appeals

took a different approach. That court interpreted the Fifth

Amendment to apply in a pretrial hearing to determine whether to

release or detain the defendant. Stoot v. City of Everett, 582 F.3d

910, 925 (9th Cir. 2009). This interpretation required the court to

determine whether a police detective enjoyed qualified immunity

after compelling a statement that was later used in a hearing to

determine release or detention. See id. at 927-28. To decide qualified

immunity, the court considered the underlying purpose of qualified

immunity, which was to prevent deterrence of reasonable officers

trying to carry out their duties. Id. at 927. This purpose led the court

to “focus on [the] officer’s duties, not on other aspects of the

constitutional violation.” Id.

28

Focusing on the officer’s duties, the court declined to permit

qualified immunity because the police detective had been on notice

that coercion of a confession could ripen into a Fifth Amendment

violation. Id. And once the police detective coerced a confession and

turned it over to the prosecutor, the detective’s role in the

constitutional violation was complete. Id. at 927-28. Thus, the Ninth

Circuit did not tarry over whether the detective would have known

which uses would violate the Fifth Amendment; he knew all along

that coercing a confession could lead to a Fifth Amendment

violation. Id. As a result, the Ninth Circuit determined that the

detective was not entitled to qualified immunity. Id.

We respectfully disagree with this approach. The Ninth Circuit

appeared to acknowledge that its test would allow police officers to

incur personal liability for contributing to a constitutional violation

that had not been clearly established. See id. at 913 (“[T]he aspects

of the pertinent law not clearly established at the time of the

confession did not affect [the detective]’s role in bringing about the

violation.”). But qualified immunity protects officers from liability

when the misconduct did not violate a clearly established right. See

pp. 26-27, above.

The four police officers allegedly compelled a statement used

before trial but not in an actual trial. Until now, the precedents had

29

not clearly determined whether these uses would have violated the

Fifth Amendment. Thus, even if the police officers could have

anticipated the eventual use in a probable cause hearing, they could

not have known that this use would violate the Fifth Amendment.

Thus, we reject the approach taken in the Ninth Circuit.

* * *

Because it was not clearly established in 2013 or 2014 that the

pretrial use of Mr. Vogt’s statements would violate the Fifth

Amendment, the four police officers are entitled to qualified

immunity.

B. Mr. Vogt did not adequately allege that Haysville had

compelled the making of a self-incriminating

statement.

As noted, Haysville conditioned its job offer to Mr. Vogt: he

would get the job only if he told the Hays police department that he

had taken the knife. According to Mr. Vogt, this condition compelled

him to make self-incriminating statements to the City of Hays;

Haysville responds that the condition on the job offer was not

coercive. We agree with Haysville, concluding that the condition on

the job offer did not compel Mr. Vogt to make a self-incriminating

statement. Thus, we affirm the dismissal of the claim against

Haysville.

30

The issue stems from the Supreme Court’s opinion in Garrity v.

New Jersey, 385 U.S. 493 (1967). There the Court held that public

employers cannot require their employees to waive the right against

self-incrimination as a condition of continued employment. 385 U.S.

at 497-98, 500. In that case, police officers under investigation faced

discharge if they refused to answer incriminating questions without

immunity from criminal prosecution. Id. at 494, 497. In the Court’s

view, the officers faced a Hobson’s choice amounting to compulsion:

they had to decide between avoiding self-incrimination and losing

their jobs. Id. at 497-98, 500. Because the incriminating answers had

been compelled, they could not be used against the officers in a

subsequent criminal proceeding. Id.

Garrity has been applied outside of the conventional

employment relationship. See, e.g., Lefkowitz v. Turley, 414 U.S. 70,

82-83 (1973) (extending Garrity to public contractors); Spevack v.

Klein, 385 U.S. 511, 514, 516 (1967) (applying the Fifth Amendment

to potential disbarment). Thus, the Fifth Amendment may be

triggered even by the threatened loss of an unsalaried position. For

example, in Lefkowitz v. Cunningham, the Supreme Court invalidated

a state law requiring officers of political parties to either waive their

right against self-incrimination or suffer automatic termination from

office and a five-year disqualification from public office. 431 U.S.

31

801, 802-04 (1977). Though the political officers were unpaid, the

Court held that the law had presented “grave consequences” because

“party offices carry substantial prestige and political influence.” Id.

at 807. The Court also noted the law’s potential economic

consequences, for the claimant would suffer from the loss of

professional standing and the possibility of holding future public

offices. Id. In addition, the Court pointed out that the law was

coercive because it impinged on an individual’s right to participate in

private, voluntary political associations—a key facet of the freedom

guaranteed by the First Amendment. Id. at 807-08.

32

In each of these cases, individuals were threatened with the

loss of some benefit or the infringement of an important right that

they already enjoyed. These individuals already had a job,

government contract, or right that was being threatened upon

exercise of the right against self-incrimination. Our circumstances

are different. Mr. Vogt was never an employee of Haysville, and his

conditional job offer did not threaten the loss of livelihood or an

existing job.

If Mr. Vogt had not wanted to incriminate himself, he could

have declined the job offer and continued working for Hays. With

that alternative freely available, Mr. Vogt was under no compulsion

to comply with Haysville’s condition to its job offer.

Mr. Vogt argues that Haysville threatened his ongoing

employment relationship with Hays by promising to verify his future

disclosure to Hays. According to Mr. Vogt, this threat created an

additional measure of compulsion. But the complaint does not

suggest that Haysville would contact the City of Hays even if Mr.

Vogt had declined the employment offer. In fact, the complaint

alleges that the City of Haysville promised to “follow-up with Hays

to ensure that [Mr. Vogt] had complied with this condition of

employment.” Appellant’s App. at 14 (emphasis added).

33

Because the complaint characterizes the disclosure requirement

as a condition of the job offer, the only reasonable inference is that

Haysville would not verify anything if Mr. Vogt were to decline the

job offer. Thus, Haysville’s promise to follow up with Hays did not

compel Mr. Vogt to make a self-incriminating statement.

* * *

We conclude that the conditional job offer was not coercive.

On this basis, we affirm the dismissal of the claim against Haysville.

V. Mr. Vogt has stated a valid claim against the City of Hays.

Hays urges three additional grounds for dismissal: (1) Mr. Vogt

has not adequately pleaded causation; (2) Hays cannot incur liability

because no one with final policymaking authority violated the

Constitution; and (3) violation of the Fifth Amendment cannot serve

as the basis for a § 1983 claim. 11 We reject these arguments.

A. Mr. Vogt has adequately pleaded causation.

11

Hays also argues that (1) witnesses in criminal proceedings

enjoy absolute immunity from civil liability arising out of their

testimony and (2) individuals testifying at trial do not act under color

of law. But Mr. Vogt does not allege that the defendants acted

unlawfully by testifying during the probable cause hearing. Rather,

Mr. Vogt alleges that Hays unconstitutionally compelled him to

incriminate himself. Though the use of those statements in the

probable cause hearing would complete the alleged Fifth Amendment

violation, the act of testifying does not serve as the basis of Mr.

Vogt’s claims.

34

Hays argues that it did not cause a violation of the Fifth

Amendment. Rather, Hays submits that it merely gave Mr. Vogt’s

compelled statements to the Kansas Bureau of Investigation, pointing

out that Hays did not make the decision to pursue criminal charges or

to use the statements in pretrial proceedings.

Section 1983 imposes liability on a state actor who “causes to

be subjected . . . any citizen . . . to the deprivation of any rights.” 42

U.S.C. § 1983. This language must be read against the backdrop of

tort law, which makes individuals responsible for the natural

consequence of their actions. Martinez v. Carson, 697 F.3d 1252,

1255 (10th Cir. 2012). Thus, causation exists if Hays initiated

actions that it knew or reasonably should have known would cause

others to deprive Mr. Vogt of his right against self-incrimination. Id.

Accordingly, Hays could incur liability even if it had been someone

else who used the compelled statements in a criminal case.

Mr. Vogt alleges in the complaint that Hays compelled self-

incriminating statements, then initiated a criminal investigation that

ended with use of the incriminating statements in a probable cause

hearing. The complaint states that

35

 Mr. Vogt reported information to Hays concerning the

knife,

 the Hays police chief conditioned Mr. Vogt’s continued

employment as a Hays police officer on his documenting

the facts related to possession of the knife,

 Mr. Vogt wrote a vague one-sentence report, and

 a Hays police officer elicited further details about Mr.

Vogt’s possession of the knife.

The complaint adds that the Hays police chief then requested a

criminal investigation of Mr. Vogt and furnished incriminating

statements to investigators, which led to use of the incriminating

statements in a probable cause hearing.

Taking these allegations as true, we conclude that Mr. Vogt

adequately pleaded that Hays had started a chain of events that

resulted in violation of the Fifth Amendment. See Stoot v. Everett,

582 F.3d 910, 926-27 (9th Cir. 2009) (concluding that a police

officer, who allegedly coerced statements, may incur liability under

§ 1983 for violation of the Fifth Amendment when a prosecutor used

those statements in a criminal case); McKinley v. Mansfield, 404 F.3d

418, 436-39 (6th Cir. 2005) (holding that police officers can incur

§ 1983 liability for allegedly coercing a suspect to make self-

incriminating statements even though it was another person, the

prosecutor, who used the statements in a criminal case).

36

B. Mr. Vogt adequately pleaded that the Fifth

Amendment violation had been committed by someone

with final policymaking authority for the City of Hays.

Hays argues that it cannot incur liability for actions by the

Hays police chief because he was not a final policymaker for the

city. We disagree.

Cities cannot incur liability under § 1983 on a respondeat

superior theory, but can be liable if a final policymaker takes

unconstitutional action. See Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658, 691 (1978); Dill v. City of Edmond, 155

F.3d 1193, 1211 (10th Cir. 1998). “Whether an individual is a final

policymaker for purposes of § 1983 liability ‘is a legal issue to be

determined by the court based on state and local law.’” Dill, 155

F.3d at 1210 (quoting Randle v. City of Aurora, 69 F.3d 441, 447

(10th Cir. 1995)). Mr. Vogt pleaded facts indicating that the Hays

police chief was a final policymaker on the requirements for police

employees.

This inquiry turns on whether the Hays police chief had

authority to establish official policy on discipline of employees

within the police department. See id. at 1211 (stating that whether

the municipal police chief at the time of the alleged violation was “a

final policymaker turns on whether he had the authority to establish

official city policy on employee transfers and discipline within the

37

police department”). To make this determination, we consider

whether the police chief’s decisions were constrained by general

policies enacted by others, whether the decisions were reviewable by

others, and whether the decisions were within the police chief’s

authority. Randle, 69 F.3d at 448.

The complaint alleges that the Hays police chief had final

policymaking authority for the police department. There is nothing in

the complaint to suggest that his decisions were subject to further

review up the chain-of-command.

Hays argues that final policymaking authority rested with the

City Manager and City Commission rather than the Police Chief. For

this argument, Hays points to municipal ordinances stating that the

city commission must hire a city manager, who appoints the police

chief and administers city business. But the city ordinances do not

specify who bears ultimate responsibility for discipline of police

officers like Mr. Vogt.

We addressed a similar situation in Dill v. City of Edmond, 155

F.3d 1193 (10th Cir. 1998). That case involved a due process

violation from a change in a police officer’s position from detective

to patrol officer. 155 F.3d at 1210. There the municipal charter

designated the city manager as the municipality’s administrative

head, who had authority to appoint and remove the police chief and

38

to hire and fire employees. Id. at 1211. Notwithstanding the city

manager’s powers, we concluded that the police chief was a final

policymaker for disciplinary transfers of police officers. We had four

reasons for this conclusion:

1. The city ordinances had not directly stated who was

authorized to determine the policy on transfers and

discipline.

2. Trial testimony had indicated that the transfer was based

on a policy adopted by the police chief.

3. The city manager had testified that he did not involve

himself with transfers.

4. The decision to transfer the plaintiff had fallen within the

authority of the police chief.

Id.

We took a similar approach in Flanagan v. Munger, 890 F.2d

1557 (10th Cir. 1989). There too the issue was whether the municipal

police chief had final policymaking authority for disciplinary

decisions within the police department. 890 F.2d at 1568. In that

case, the municipality admitted that the police chief had final

authority to issue reprimands for its officers—an admission that we

described as effectively disposing of the municipal liability issue. Id.

Notwithstanding this admission, we analyzed the municipality’s

argument that the police chief lacked final policymaking authority

under the municipal code. The municipality pointed out that

39

 the city manager had to manage and supervise all matters

related to the police department, its officers, and

employees,

 the city manager could set aside any action taken by the

police chief and “supersede any department head in the

functions of his position,” and

 “[t]he rules of the Civil Service Commission ...

govern[ed] disciplinary matters relative to uniformed

personnel [e.g., review by City Council] except as

otherwise provided by charter or ordinance.”

Id. (quoting the city’s municipal code) (alterations in original).

We acknowledged that the police chief’s decisions were subject

to review by the city manager and city council. Id. Nonetheless, we

held that the police chief had final policymaking authority for

disciplinary decisions within the police department. Id. at 1568-69.

We had two reasons. First, the municipal code empowered the

police chief to directly manage and supervise the force and made him

“responsible for the discipline, good order and proper conduct of the

Department, [and] the enforcement of all laws, ordinances and

regulations pertaining thereto.” Id. (quoting the city’s municipal

code) (alteration in original). Second, the municipal code did not

create a mandatory or formal review of the police chief’s action. Id.

at 1569. Thus, we concluded that “for all intents and purposes the

[police chief’s] discipline decisions [were] final” and that “any

meaningful administrative review [was] illusory.” Id. at 1569. This

40

conclusion led us to hold that the police chief had final policymaking

authority even under the municipal code. Id.

Under Dill and Flanagan, we conclude that Mr. Vogt has

adequately pleaded final policymaking authority on the part of the

Hays police chief. As in Dill and Flanagan, the city has pointed to

general supervisory responsibilities of the city manager. But there is

nothing in the municipal ordinances suggesting that the city manager

plays a meaningful role in disciplinary decisions within the police

department. The absence of such provisions is fatal at this stage,

where we must view all of the allegations and draw all reasonable

inferences in favor of Mr. Vogt. See Dias v. City and Cty. of Denver,

567 F.3d 1169, 1178 (10th Cir. 2009). As a result, we conclude that

Mr. Vogt has adequately pleaded final policymaking authority on the

part of the Hays police chief.

C. Violation of the Fifth Amendment can serve as the

basis for liability under § 1983.

In a single sentence, Hays contends that “Chavez held there is

no claim for civil liability under the Fifth Amendment and that

claims related to securing compelled/coerced statements required

egregious government action under a substantive due process

analysis.” Appellees’ Br. at 20. Hays does not explain or support this

41

sentence, and it is incorrect. Chavez did not make such a holding.

Thus, Hays’s single sentence does not support the dismissal.

VI. Disposition

We affirm the dismissal of the claims against the City of

Haysville and the four police officers. We reverse the dismissal of

the claim against the City of Hays and remand for further

proceedings consistent with this opinion.

42

15-3266 – Vogt v. City of Hays, et al.

HARTZ, Circuit Judge, concurring:

I join Judge Bacharach’s opinion for the panel. I write separately to emphasize the

limits of what we are saying. We have addressed only issues raised by the parties. Some

of the questions we have not answered are: (1) Even though the Fifth Amendment

privilege against self-incrimination can be violated by use of the defendant’s statements

at a probable-cause hearing, can there be a violation when such use does not cause a

criminal sanction to be imposed on the defendant (such as when, as here, the court does

not find probable cause)? (2) When a person voluntarily discloses information to a

government agency, does he or she thereby waive any Fifth Amendment objection to

disclosing that same information to another government agency? (3) Under what

circumstances can an employee who has given notice of resignation claim that a request

for incriminatory information was coercive? And, most significantly, (4) In light of post-

Garrity developments in Fifth Amendment doctrine, if a public employee believes that he

or she is being coerced by the employer into making self-incriminatory statements, must

the employee invoke the privilege against self-incrimination by refusing to provide

information, or can the employee still, as in Garrity, provide the information and then

demand immunity from use of the information? See Peter Westen, Answer Self-

Incriminating Questions or Be Fired, 37 Am. J. Crim. L. 97 (2010).