Adrian Miranda v. City of Casa Grande

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN MIRANDA, an individual, No. 20-16905

Plaintiff-Appellant,

D.C. No.

v. 2:19-cv-04618-

JJT-JZB

CITY OF CASA GRANDE, a

municipality; RICHARD RUSH, in his

individual capacity as an Officer of OPINION

the Casa Grande Police Department,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted June 15, 2021

San Francisco, California

Filed October 19, 2021

Before: Sidney R. Thomas, Chief Judge, and Daniel A.

Bress and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bress

2 MIRANDA V. CITY OF CASA GRANDE

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of defendants in an action brought

pursuant to 42 U.S.C. § 1983 alleging that a City of Casa

Grande police officer lied during an Arizona state

administrative proceeding concerning the suspension of

plaintiff’s driver’s license.

The panel first noted that there is no express

constitutional guarantee or other federal right to a driver’s

license, so that its deprivation does not violate substantive

due process. Plaintiff’s claim therefore sounded, if at all, in

procedural due process. The panel held that plaintiff failed

to demonstrate a procedural due process violation because,

even assuming the officer testified falsely at the

administrative hearing as to whether plaintiff consented to a

blood test following his arrest for driving under the

influence, Arizona provided sufficient post-deprivation

process to plaintiff. The panel noted that, following the

discovery of the officer’s alleged unauthorized conduct,

plaintiff was granted a second administrative hearing before

a new ALJ, who ultimately voided the suspension and

reinstated plaintiff’s license. Additionally, Arizona also

allowed plaintiff to bring a state law claim, which he was

pursuing in Arizona state court. The panel held that the post-

deprivation procedures were both meaningful and sufficient

under the Due Process Clause.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MIRANDA V. CITY OF CASA GRANDE 3

COUNSEL

Joel B. Robbins (argued), Robbins & Curtin PLLC, Phoenix,

Arizona, for Plaintiff-Appellant.

Larry J. Crown (argued) and Elan S. Mizrahi, Titus

Brueckner & Levine PLC, Scottsdale, Arizona, for

Defendants-Appellees.

OPINION

BRESS, Circuit Judge:

The question in this case is whether the plaintiff can

pursue a claim under 42 U.S.C. § 1983 for a police officer

allegedly lying during an Arizona state administrative

proceeding concerning the suspension of the plaintiff’s

driver’s license. The answer, we hold, is no. Even assuming

the officer testified falsely, Arizona provided sufficient post-

deprivation process to the plaintiff. That is enough to

foreclose the plaintiff’s procedural due process theory, and

thus, his § 1983 claim.

I

A

On July 6, 2017, Adrian Miranda went out bowling with

two neighbors, his 14-year-old daughter, and his 17-year-old

son Adrian Matthew Miranda (whom the parties refer to as

Matthew). Over the course of the night, Miranda drank at

least six beers. Miranda was by that point significantly

intoxicated, so Matthew drove the group home in Miranda’s

truck. During the ride, Miranda and his son began to argue.

The argument intensified until Matthew stopped the truck in

4 MIRANDA V. CITY OF CASA GRANDE

a vehicle lane of traffic several blocks from the family’s

home. Neighbors heard the commotion and called 911.

Officers Richard Rush and John Campa of the Casa

Grande, Arizona Police Department responded to the scene.

When they arrived, the truck was still in the vehicle lane of

traffic and Miranda was now in the driver’s seat. The parties

dispute whether the truck was running, whether Miranda had

the keys, whether the truck’s alarm was going off, and

whether the emergency blinkers were flashing.

The officers ordered Miranda out of the truck, but he did

not comply. They repeated the command over a loudspeaker

for several minutes until Miranda finally exited the vehicle.

Miranda emerged with bloodshot eyes, stumbling and

swaying, smelling of alcohol, and slurring his speech.

Officer Rush’s police report described Miranda’s behavior

that evening as “extremely uncooperative” and

“belligerent.”

Officer Rush arrested Miranda for failure to comply with

law enforcement and had him brought to the Casa Grande

police station. At the station, Miranda admitted to having

consumed six beers and he performed poorly in response to

a field sobriety test. He also submitted to a portable breath

test, which revealed a blood alcohol content of 0.137%.

Miranda was placed under arrest for driving under the

influence (DUI).

Under Arizona’s “implied consent” law, “[a] person who

operates a motor vehicle in this state gives consent . . . to a

test or tests of the person’s blood,” if arrested on suspicion

of a DUI. A.R.S. § 28-1321(A). This applies if “the person

was driving or in actual physical control of a motor vehicle

while under the influence of intoxicating liquor or drugs.”

Id.

MIRANDA V. CITY OF CASA GRANDE 5

Once arrested, the violator “shall be requested” to submit

to a blood test, and, if he refuses, he “shall be informed that

[his] license or permit to drive will be suspended or denied

for twelve months, . . . unless the violator expressly agrees

to submit to and successfully completes the test or tests.” Id.

§ 28-1321(B). “A failure to expressly agree to the test or

successfully complete the test is deemed a refusal.” Id. At

that point, officers generally need a search warrant before

they can continue with the blood test. Id. § 28-1321(D)(1).

Officer Rush read to Miranda from a standardized

Arizona Department of Transportation “implied consent

affidavit” designed to confirm whether an individual is

consenting to required tests. The first paragraph of the

affidavit asks, “Will you consent to a test or tests of your

blood, breath, urine or other bodily substance for the purpose

of determining your alcohol concentration or drug content?”

Officer Rush read this question verbatim and Miranda

responded, “No, I will not.”

Following the next prompt on the form, Officer Rush

then advised Miranda: “If you do not expressly agree to

testing or do not successfully complete the tests, your

Arizona driving privileges will be suspended for

12 months. . . . Will you consent to the tests?” Miranda

refused again. Officer Rush then read Miranda one last

warning from the form affidavit: “You are not entitled to

further delay before taking the tests. Any additional delay

will be considered a refusal to submit to the tests. Will you

consent to the tests?” For the third time, Miranda refused.

Miranda then asked to make a phone call. The officers,

unsure if Miranda was requesting a lawyer, allowed him to

use a phone. But instead of calling a lawyer, Miranda called

his superior at the United States Customs & Border Patrol

(CBP), where Miranda worked as a CBP Officer. Miranda

6 MIRANDA V. CITY OF CASA GRANDE

told his supervisor that he was intoxicated at the police

station and needed to be picked up. After the call, Miranda

fell asleep.

Meanwhile, Officers Rush and Campa had begun

preparing a search warrant for Miranda’s blood draw.

During this time, another officer, Officer McKinney, was

sitting with Miranda. Video recordings from inside the

police station recorded the following exchanges. While they

were in the room together, Miranda stated to McKinney,

“Can you let them know I’m doing the blood work?” Officer

McKinney then found Officer Rush, who had not yet secured

the search warrant. McKinney said to Rush, “He says he’s

doing bloodwork.” Rush asked, “He said he’s doing

bloodwork?” McKinney replied, “Yes.” Rush responded,

“Oh, no shit.” “Yep,” said McKinney.

After this exchange, Officer Rush still obtained a

telephonic search warrant from a judge on the Casa Grande

Justice Court. Rush returned to the room and told Miranda:

“So, you refused the blood draw, so your license is

suspended for one year from this day forward.” Eventually,

with the assistance of a phlebotomist (and after some

resistance from Miranda), Miranda’s blood draw was

completed. The test revealed a blood alcohol concentration

above the legal limit for driving or physically controlling a

motor vehicle in Arizona.

Miranda was charged with a DUI and various other

crimes. CBP limited Miranda’s duties for a time, both

because of Miranda engaging in “conduct unbecoming an

officer and misuse of his position” and because Miranda,

now lacking a valid driver’s license, no longer met a

condition of employment. Among other things, CBP

suspended Miranda’s enforcement authority, ordered him to

turn in his firearm and badge, and limited his building access

MIRANDA V. CITY OF CASA GRANDE 7

“only to those areas necessary to perform administrative

duties.” Miranda’s pay was reduced, and he allegedly

suffered anxiety, shame, and humiliation.

Miranda later pleaded guilty to disorderly conduct and

failure to comply with law enforcement in exchange for

dismissal of the DUI. His other charges were also ultimately

dismissed.

B

Arizona law afforded Miranda the opportunity to contest

his driver’s license suspension in a hearing before a state

administrative law judge (ALJ) in the Arizona Department

of Transportation. See A.R.S. §§ 28-1321(G)–(K); Ariz.

Admin. Code § 17-1-502; see generally Tornabene v.

Bonine ex rel. Arizona Highway Dep’t, 54 P.3d 355, 360–61

(Ariz. Ct. App. 2002). A timely request for a hearing stays

the driver’s license suspension until the hearing is held.

A.R.S. § 28-1321(J).

Miranda sought such a hearing, which took place on

September 12, 2017. Miranda, represented by counsel,

testified that he had no memory of the evening. Miranda at

this point did not know he had expressed a willingness to

allow a blood draw, nor was he aware of the conversation

between Officers McKinney and Rush. At the hearing,

Miranda’s son, daughter, and stepson testified on his behalf.

Officer Rush also testified. The ALJ asked Rush, “At any

point before the service of the warrant did the petitioner

change his mind and tell you that he would take the test?”

Rush responded, “No, ma’am.”

The ALJ found Rush “sufficiently credible” in his

testimony. The ALJ also found that Miranda declined to

submit to the blood test and that he did not change his mind

8 MIRANDA V. CITY OF CASA GRANDE

before service of the warrant. The ALJ suspended Miranda’s

license for twelve months, effective October 12, 2017.

Some time later, CBP obtained the Casa Grande Police

Department surveillance videos, seemingly as part of

assessing Miranda’s employee discipline for the night in

question. Miranda was at that point made aware of the

videos. After seeing that he had expressed to McKinney his

willingness to undergo a blood draw, Miranda sought a

second administrative hearing. This hearing took place on

July 12, 2018, before a different ALJ. Counsel once again

represented Miranda at the second hearing.

Officer Rush testified again, too. When questioned

about the videotaped exchange with Officer McKinney,

Rush said, “[i]t’s not a recant” because Miranda “didn’t

expressly agree to do the test.” Rush “d[idn’t] know what

. . . Miranda meant when he said, ‘He would do the

bloodwork.’” Rush elaborated: “[T]hat means nothing to

me. He is not expressively saying that he will take the blood

test. I’ve done tons of DUI’s—this is what I do. . . . [H]e

adamantly denied and said that he did not want to take the

test over and over again.”

The second ALJ also determined that Miranda had

initially refused to consent to the blood test. But this time,

the ALJ found that Officer McKinney’s statements were “a

clear advisement” that Miranda had recanted his refusal

before Officer Rush obtained the search warrant. Although

the ALJ did not determine that Rush had testified falsely

during the first administrative hearing, she found that

Miranda had in the end voluntarily submitted to the blood

draw. The second ALJ thus voided Miranda’s license

suspension.

MIRANDA V. CITY OF CASA GRANDE 9

C

In July 2018, Miranda sued the City of Casa Grande and

Officer Rush in Arizona state court. In addition to raising

several state law claims, Miranda’s complaint alleged a

42 U.S.C. § 1983 count against Rush. The § 1983 claim was

titled “Violation of Fourteenth Amendment Rights;

Wrongful Initiation of Civil Proceedings.” Miranda alleged

that Rush “knew that [Miranda] had consented to the blood

test,” yet still “initiated and pursued” the license suspension.

Miranda also alleged that Rush “lied under oath” to the ALJ,

and that Rush’s “false testimony at the administrative

hearing also caused a deprivation of [Miranda’s] right to

procedural due process under the Fourteenth Amendment.”

The defendants removed the case to federal court. Later,

they filed a motion for summary judgment on all claims. The

district court granted summary judgment on the § 1983

claim, concluding that Miranda had not shown an underlying

constitutional violation. The court then remanded the

remaining state law claims to state court. On appeal,

Miranda argues that Officer Rush’s “deliberately false

testimony” violated due process because it led to the

temporary suspension of his driver’s license.

II

We review de novo a district court’s order granting

summary judgment, examining the evidence in the light

most favorable to Miranda, the non-moving party. Badgley

v. United States, 957 F.3d 969, 974 (9th Cir. 2020). We may

affirm the district court on any ground supported in the

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

1116, 1121 (9th Cir. 2008).

10 MIRANDA V. CITY OF CASA GRANDE

To prevail under § 1983, Miranda must at minimum

prove the violation of a federal or constitutional right. See

Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th

Cir. 2006). There is, of course, no express constitutional

guarantee or other federal right to a driver’s license. And

while Miranda disclaimed reliance on a substantive due

process theory in the district court, we have also previously

held that “a driver’s license is not a fundamental right,” so

that its deprivation does not violate substantive due process.

Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018); see

also Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999)

(“Miller provides no precedent supporting his contention

that, absent a lack of due process, denial of a driver’s license

is tantamount to denial of a constitutional right.”).

Miranda’s claim thus sounds, if at all, in procedural due

process. But we hold that Miranda has not demonstrated a

procedural due process violation here.

A

A procedural due process claim has two elements: “(1) a

deprivation of a constitutionally protected liberty or property

interest, and (2) a denial of adequate procedural protections.”

Franceschi, 887 F.3d at 935 (quoting Hufford v. McEnaney,

249 F.3d 1142, 1150 (9th Cir. 2001)). It has long been

understood that “the Due Process Clause applies to the

deprivation of a driver’s license by the State.” Dixon v.

Love, 431 U.S. 105, 112 (1977). Arizona thus may not

deprive Miranda of his driver’s license “without [the] due

process required by the Fourteenth Amendment.”

Franceschi, 887 F.3d at 935 (citing Bell v. Burson, 402 U.S.

535, 539 (1971)).

But to say that the deprivation of a driver’s license can

implicate procedural due process protections does not

MIRANDA V. CITY OF CASA GRANDE 11

resolve the level of protection that must be afforded. The

touchstone of procedural due process is notice and an

opportunity to be heard. Dusenbery v. United States,

534 U.S. 161, 167 (2002). Yet “[d]ue process is a flexible

concept that varies with the particular situation.” Yagman v.

Garcetti, 852 F.3d 859, 863 (9th Cir. 2017) (quoting

Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015)).

Therefore, what the Due Process Clause “requires in any

given case is a function of context.” Franceschi, 887 F.3d

at 935 (quoting Brewster v. Bd. of Educ., 149 F.3d 971, 983

(9th Cir. 1998)).

In Dixon v. Love, for instance, the Supreme Court held

that in the case of a driver with repeated convictions for

traffic offenses, a state could suspend a driver’s license

without any pre-revocation hearing at all, as long as post-

revocation procedures were available. 431 U.S. at 112–15;

see also Franceschi, 887 F.3d at 935–36 (rejecting a

procedural due process challenge to California’s scheme

suspending driver’s licenses of certain delinquent

taxpayers); Aiona v. Judiciary of Haw., 17 F.3d 1244, 1249–

50 & n.9 (9th Cir. 1994) (rejecting a procedural due process

objection to Hawaii’s driver’s license revocation scheme).

The immediate problem Miranda encounters with any

procedural due process claim is that he received considerable

process. At the police station, Officer Rush read to him from

a standardized form designed to confirm that he was not

expressly consenting to a blood draw (and to minimize error

in that determination). Although many § 1983 litigants

justifiably complain about police failing to obtain a warrant,

here Rush secured a warrant for a blood draw through a

judge on the Casa Grande Justice Court. While Miranda

protests that this warrant was unnecessary because he had

consented to the blood draw, Rush points out that nothing

prevented him from seeking a warrant regardless, and there

12 MIRANDA V. CITY OF CASA GRANDE

can be little doubt that the warrant was supported by

probable cause.

Once Rush determined that Miranda failed expressly to

consent to a blood draw and that his license should therefore

be suspended, Arizona law afforded Miranda an opportunity

to challenge that suspension before a state ALJ. See A.R.S.

§§ 28-1321(F)–(K); Ariz. Admin. Code § 17-1-502.

Miranda took full advantage of this process, with the

assistance of counsel and witnesses. And he raises no due

process challenge to Arizona’s procedures themselves.

Instead, Miranda’s contention is that Officer Rush

testified falsely at the first ALJ hearing about whether

Miranda had recanted his refusal to submit to the blood

draw, and that this alleged lie standing alone formed a

procedural due process violation when it led to his license

being temporarily suspended. Miranda is incorrect.

In Parratt v. Taylor, 451 U.S. 527 (1981), overruled on

other grounds by Daniels v. Williams, 474 U.S. 327 (1986),

the Supreme Court explained that meaningful post-

deprivation remedies will suffice when the deprivation was

the “result of a random and unauthorized act by a state

employee.” Id. at 541. When there is a “necessity of quick

action by the State or the impracticality of providing any

meaningful predeprivation process,” “postdeprivation

remedies made available by the State can satisfy the Due

Process Clause.” Id. at 538–39. A state employee acting in

an unauthorized manner fits that situation, the Supreme

Court held, because “[i]n such a case, the loss is not a result

of some established state procedure and the State cannot

predict precisely when the loss will occur.” Id. at 541.

Parratt involved a state employee’s allegedly negligent

conduct. In Hudson v. Palmer, 468 U.S. 517 (1984), the

MIRANDA V. CITY OF CASA GRANDE 13

Supreme Court extended Parratt’s logic to an official’s

intentional misconduct. In Hudson, an inmate alleged that

prison guards had maliciously destroyed his personal

belongings, depriving him of property without due process.

Id. at 530–32. The Supreme Court explained that “[t]he

underlying rationale of Parratt is that when deprivations of

property are effected through random and unauthorized

conduct of a state employee, predeprivation procedures are

simply ‘impracticable’ since the state cannot know when

such deprivations will occur.” Id. at 533. That reasoning,

Hudson held, applied with even more force to intentional

deprivations:

The state can no more anticipate and control

in advance the random and unauthorized

intentional conduct of its employees than it

can anticipate similar negligent conduct.

Arguably, intentional acts are even more

difficult to anticipate because one bent on

intentionally depriving a person of his

property might well take affirmative steps to

avoid signalling his intent. If negligent

deprivations of property do not violate the

Due Process Clause because predeprivation

process is impracticable, it follows that

intentional deprivations do not violate that

Clause provided, of course, that adequate

state post-deprivation remedies are available.

Id. 1

The Supreme Court later overruled the portion of Parratt that

1

allowed an official’s merely negligent conduct to serve as the basis for a

claimed constitutional violation. See Daniels, 474 U.S. at 331

14 MIRANDA V. CITY OF CASA GRANDE

We think Hudson provides the proper fit here. Officer

Rush, to be sure, strongly resists Miranda’s allegation that

he lied in the first ALJ hearing, with Rush maintaining that

his perception of the chaotic events was reasonable. But

assuming without deciding that Rush did lie, that conduct

can only be described as “unauthorized” under Hudson. Id.

Miranda himself argues in his briefing that “Rush abused the

authority of his position and undermined the safeguards

owed to Miranda,” suggesting Rush did so to “punish

plaintiff for working for the ‘Feds.’” That is akin to the

“unauthorized personal vendetta” at issue in Hudson.

Zinermon v. Burch, 494 U.S. 113, 130 (1990). As in

Hudson, Rush (by Miranda’s allegations) was “bent upon

effecting the substantive deprivation and would have done

so despite any and all predeprivation safeguards.” Id. at 137.

Indeed, the conclusion that Rush’s conduct was

unauthorized is, if anything, stronger here than in Hudson

itself because Rush engaged in alleged wrongdoing

notwithstanding the fact that Arizona had put in place

various pre-deprivation safeguards for driver’s license

suspensions—procedures whose adequacy Miranda does not

challenge here. Whereas Hudson involved no pre-

deprivation process at all, see 468 U.S. at 519–20, Rush’s

alleged misconduct took place within a defined state process

that included a neutral arbiter and various other protections

traditionally designed to secure the truth (availability of

counsel, cross-examination, witnesses under oath, etc.).

Rush was not even the final decisionmaker here; the ALJ

(“Historically, this guarantee of due process has been applied to

deliberate decisions of government officials . . . .”). But nothing in

Daniels disturbed Parratt’s determination that a State could remedy the

unauthorized action of a government official through adequate post-

deprivation processes.

MIRANDA V. CITY OF CASA GRANDE 15

was. Nor does Miranda suggest additional procedures, much

less reasonable ones, that would reliably prevent dishonest

testimony. (To the extent Miranda claims a related

procedural due process violation arising from Officer Rush’s

allegedly misleading phone call seeking a warrant, that too

was “unauthorized,” and the same analysis above applies.)

In short, Miranda provides no basis to conclude that

Rush’s alleged intentional misconduct was authorized, much

less that it was predictable or reasonably avoidable. Cf.

Zinermon, 494 U.S. at 136–39 (requiring pre-deprivation

process when the alleged wrongdoing was “foreseeable,”

when it might have “averted” the deprivation, and when the

defendants under state law had “authority to effect the very

deprivation complained of here”). For unauthorized

deprivations like this one, “the state’s action is not complete

until and unless it provides or refuses to provide a suitable

postdeprivation remedy.” Hudson, 468 U.S. at 533. To

determine whether Miranda has made out a procedural due

process claim, the proper inquiry thus turns on the

procedures the State afforded Miranda after his initial license

suspension.

There can be no serious question that those post-

deprivation procedures were both meaningful and sufficient

under the Due Process Clause. When Miranda discovered

the station house videos, he was granted a second

administrative hearing. At this hearing, he had the

opportunity to present new evidence and arguments before a

new ALJ, who ultimately voided the suspension and

reinstated Miranda’s license. “A violation of procedural

rights requires only a procedural correction, not the

reinstatement of a substantive right . . . .” Raditch v. United

States, 929 F.2d 478, 481 (9th Cir. 1991). Here, however,

Miranda received both.

16 MIRANDA V. CITY OF CASA GRANDE

On top of this, Arizona also allows Miranda to bring state

law claims, which he is presently pursuing against Rush and

the City of Casa Grande in Arizona state court. See, e.g.,

Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (per

curiam) (concluding that state tort law provided an adequate

post-deprivation remedy for an unauthorized property loss);

King v. Massarweh, 782 F.2d 825, 827 (9th Cir. 1986)

(concluding that when officers “did not act in accordance

with established state procedures but instead acted in

violation of police procedures promulgated by the San

Francisco Police Department,” their conduct was

unauthorized and plaintiffs were “relegated to the post-

deprivation remedies available through the civil tort law

process for their due process claims”).

Whether or not Miranda proves successful in state court,

the availability of potential state tort remedies supports our

view that Arizona has provided Miranda with adequate post-

deprivation process. Miranda protests that punitive damages

are not available through his state law claims. But that

Miranda “might not be able to recover under these remedies

the full amount which he might receive in a § 1983 action is

not . . . determinative of the adequacy of the state remedies.”

Hudson, 468 U.S. at 535.

Because Arizona has provided Miranda with sufficient

post-deprivation mechanisms, Miranda cannot demonstrate

a procedural due process violation and has “received all the

process that was due.” Raditch, 929 F.2d at 480. Accepting

Miranda’s contrary position, meanwhile, would be both

inconsistent with governing precedent and potentially

dramatic in its implications, threatening to turn nearly every

mishap or misdeed in a state administrative process into a

federal constitutional violation. The Supreme Court has

long cautioned that we should not make “the Fourteenth

Amendment a font of tort law to be superimposed upon

MIRANDA V. CITY OF CASA GRANDE 17

whatever systems may already be administered by the

States.” Daniels, 474 U.S. at 332 (quoting Paul v. Davis,

424 U.S. 693, 701 (1976)). In the case of a deprivation

resulting from a flawed state proceeding of the type at issue

here, what matters under the Due Process Clause is not

merely the initial deprivation itself but whether the State has

set up adequate procedural protections surrounding it. Here,

we conclude that Arizona’s post-deprivation processes are

sufficient. Miranda’s § 1983 claim thus fails. 2

B

Against the weight of this reasoning, Miranda maintains

that two of our cases require a different conclusion. He

points specifically to Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001) (en banc), and Costanich v. Dep’t of Soc. &

Health Servs., 627 F.3d 1101 (9th Cir. 2010). But these

cases involve substantive due process rights, and present

other important differences as well. Neither case supports

Miranda’s assertion that Officer Rush’s alleged misconduct

creates a due process violation regardless of the post-

deprivation remedies available under Arizona law.

In Devereaux, a foster parent brought a § 1983 claim

alleging that police had used improper interrogation

techniques against his foster children, leading to false

criminal charges for child abuse. 263 F.3d at 1076–80. We

identified in that case “a clearly established constitutional

due process right not to be subjected to criminal charges on

2

We thus have no occasion to address whether Rush would be

entitled to any form of official immunity under § 1983, an issue that the

district court did not reach.

18 MIRANDA V. CITY OF CASA GRANDE

the basis of false evidence that was deliberately fabricated

by the government.” Id. at 1074–75.

That holding does not govern here. Unlike Devereaux,

Miranda’s alleged deprivation does not arise from a criminal

proceeding. And the considerations that apply to a potential

deprivation of liberty do not automatically carry over to the

temporary suspension of a driver’s license. In addition, and

although Devereaux did not clearly identify the source of the

constitutional right it identified, we have later described it as

grounded in substantive due process. See Hall v. City of Los

Angeles, 697 F.3d 1059, 1068–69 (9th Cir. 2012); see also

Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir.

2013) (same). As we have explained above, Miranda’s

claim sounds, if at all, in procedural due process. The

considerations that bear on a claim founded in a substantive

due process right do not invariably translate over to the

procedural due process context, given the different interests

at stake.

Finally, to support the claim Devereaux allowed, the

plaintiff

must, at a minimum, point to evidence that

supports at least one of the following two

propositions: (1) Defendants continued their

investigation of Devereaux despite the fact

that they knew or should have known that he

was innocent; or (2) Defendants used

investigative techniques that were so

coercive and abusive that they knew or

should have known that those techniques

would yield false information.

Devereaux, 263 F.3d at 1076. Even giving Miranda’s view

of the facts its widest berth, this case does not meet or

MIRANDA V. CITY OF CASA GRANDE 19

approximate either of Devereaux’s requirements, whether in

kind or in severity.

Costanich also does not aid Miranda. In that case, a

foster parent brought a § 1983 claim against a social worker

for falsifying evidence, which led to the plaintiff losing her

foster care license and custody of her foster children.

627 F.3d at 1110. The plaintiff alleged that the social worker

had purposefully misquoted interviewees and falsely

reported witness contacts. Id. at 1111–12. Relying on

Devereaux, we held that “deliberately fabricating evidence

in civil child abuse proceedings violates the Due Process

clause of the Fourteenth Amendment when a liberty or

property interest is at stake.” Id. at 1108; see also id. at 1111,

1114–15.

But our holding in Costanich was limited to the

plaintiff’s substantive due process claim, effectively based

on a right to raise foster children. See id. at 1110 (framing

the issue as a “substantive due process claim” based on

plaintiff’s alleged deprivation of her “property and liberty

interests in her foster care license and in the care of E. and

B. as their dependency guardian”). We also did not decide

if such a substantive due process right was in fact viable. We

instead assumed that the right existed because the defendants

did not dispute it and had waived any argument otherwise.

Id. at 1110, 1114 n.13, 1116 n.15; see also Hardwick v.

County of Orange, 844 F.3d 1112, 1120 (9th Cir. 2017)

(discussing the waiver in Costanich).

When it came to the Costanich plaintiff’s procedural due

process claim, however, we had little difficulty rejecting it:

the plaintiff had already “benefitted from multiple layers of

administrative and state court review and, therefore, cannot

allege that she is a victim of ‘lack of process.’” 627 F.3d

20 MIRANDA V. CITY OF CASA GRANDE

at 1117. It is that same basic logic that we apply here in

rejecting Miranda’s procedural due process theory.

* * *

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.