Daniel Chavez v. David Robinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL MIKE CHAVEZ, No. 18-36083

Plaintiff-Appellant,

D.C. No.

v. 1:11-cv-03025-AA

DAVID R. ROBINSON; LISA

MOORE, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted May 22, 2020

San Francisco, California

Filed September 8, 2021

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit

Judges, and Ivan L.R. Lemelle,* District Judge.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Berzon

*

The Honorable Ivan L.R. Lemelle, United States District Judge for

the Eastern District of Louisiana, sitting by designation.

2 CHAVEZ V. ROBINSON

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of a

complaint brought pursuant to 42 U.S.C. § 1983 by Daniel

Chavez alleging that his constitutional rights were violated

when, as a condition of his supervised release and while his

appeal of his conviction was pending, he was required to

complete a sex offender treatment program, and then was

discharged from the program and given a limited jail sanction

for refusing to admit to the conduct underlying his conviction,

a required part of his treatment.

Chavez brought suit for damages against his probation

officer and the director of the therapy program alleging

defendants violated his rights under the Fifth Amendment and

Fourteenth Amendment by requiring him to admit to the

conduct underlying his conviction; violated his Sixth

Amendment right to counsel; and violated his First

Amendment right to free speech by dismissing him from

treatment after he filed the pending lawsuit.

Addressing Chavez’s claim that defendants violated his

Fifth Amendment right against self-incrimination, the panel

stated that the claim required consideration of the distinction

between the core constitutional right protected by the Self-

Incrimination Clause and the prophylactic rules designed to

safeguard that right. The panel held that it was bound by the

rule adopted by six justices in Chavez v. Martinez, 538 U.S.

**

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

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

CHAVEZ V. ROBINSON 3

760, 770 (2003) (plurality opinion), as enunciated in this

court’s precedent, and consistent with the rule adopted by

sister circuits—that the Fifth Amendment is not violated

unless and until allegedly coerced statements are used against

a suspect in a criminal case. Because Chavez did not make

a statement that was used in a criminal proceeding, he could

not bring a civil action against the government under § 1983

for a violation of his Fifth Amendment right against self-

incrimination. Thus, the panel held that Chavez’s claim was

based on a violation of the judge-made protection from being

forced to give incriminating testimony. Because this

privilege is a prophylactic rule designed to safeguard the core

constitutional right protected by the Self-Incrimination

Clause rather than the core constitutional right itself, Chavez

could use the privilege only defensively as a shield and could

not wield it as a sword in an action for damages.

Addressing defendants’ contention that they were entitled

to qualified immunity as to the Fifth Amendment claim, the

panel stated that the analysis raised some close questions.

The panel noted that under United States v. Antelope, 395

F.3d 1128, 1139 (9th Cir. 2005), state officials may not

impose sanctions on a sex offender for failure to make

incriminating statements as part of a treatment program,

where the officials expressly decline to offer immunity and

insist that a sex offender’s statements can be used in

subsequent criminal proceedings. In Antelope, the court

reversed the revocation of a sex offender’s supervised release.

Rather than decide whether Antelope clearly established a

rule that applied to defendants in this somewhat different

context, the panel deemed it prudent to rely on its holding that

Chavez’s Fifth Amendment claim could not proceed in the

absence of the use of a coerced statement in a criminal

4 CHAVEZ V. ROBINSON

proceeding, and so the panel did not reach the second prong

of the qualified immunity analysis.

The panel next rejected Chavez’s claim that defendants

violated his Sixth Amendment rights by denying him counsel

at a critical stage. Chavez argued that defendants’ refusal to

allow him to consult his attorney before making admissions

was in effect a complete deprivation of counsel at the critical

stage of determining whether to appeal or withdraw an

appeal. The panel held that even assuming that a decision to

withdraw an appeal is a critical stage, Chavez was not denied

access to counsel for that purpose. Nor did any precedent

support Chavez’s argument that his meeting with defendant

Robinson for sex therapy treatment was a critical stage of his

appeal. Moreover, the panel stated that this court’s precedent

made clear that the Sixth Amendment has no application to

supervised release proceedings. Because no existing

precedent established that a prisoner who is prevented from

contacting counsel during sex offender treatment has been

denied counsel on appeal, defendants were also entitled to

qualified immunity on this claim under the second prong of

the qualified immunity analysis. Finally, the panel held that

Chavez had not identified any case holding that a convicted

sex offender participating in a treatment program as a

condition of probation or supervised release is entitled to

counsel before complying with the requirement (typical of

such programs) to admit the conduct underlying the

conviction, even if such admission has the potential to

prejudice a potential retrial after a successful appeal.

Accordingly, defendants were entitled to qualified immunity

on the Sixth Amendment right to counsel claim.

Addressing Chavez’s claim that defendants violated his

First Amendment right by terminating him from the sex

CHAVEZ V. ROBINSON 5

offender treatment program and revoking his supervision in

retaliation for his lawsuit, the panel held that defendants were

entitled to qualified immunity. Chavez cited no case holding

that a person providing rehabilitation therapy for a supervised

releasee may not discharge the releasee from the program in

response to a lawsuit.

Concurring in part in the judgment and dissenting in part,

Judge Berzon stated that Chavez was compelled in a criminal

case to be a witness against himself and imprisoned because

he would not be, violating his Fifth Amendment rights and

giving rise to a cause of action under § 1983. On the record

viewed most favorably to Chavez, defendants violated a well-

established prohibition on incarcerating a parolee for failing

to incriminate himself, recognized in Antelope, 395 F.3d at

1139; Chavez could sue for damages under § 1983 for that

violation; and Chavez’s Fifth and Fourteenth Amendment

claim was not barred by qualified immunity. Judge Berzon

therefore dissented from the majority’s Fifth Amendment

§ 1983 holding.

Judge Berzon also wrote separately to address the

majority’s reasoning on Chavez’s Sixth Amendment claim.

To the extent the majority reached the merits (which was not

clear), she disagreed with the majority’s assertion that

Chavez’s Sixth Amendment claim failed because he had

access to counsel at other stages of his appeal and because the

Sixth Amendment did not apply to supervised release

proceedings. These arguments mischaracterized Chavez’s

claim: that he had a right to consult with counsel about

waiving his Fifth Amendment privilege while his appeal was

still pending. Judge Berzon agreed, however, that there was

no clearly established law on whether Chavez had a right to

consult with counsel under the circumstances, and so

6 CHAVEZ V. ROBINSON

concurred in holding that Chavez’s Sixth Amendment claim

was barred by qualified immunity.

COUNSEL

Gus Tupper (argued), Kara Gordon, and Eleanor Walker,

Certified Law Students; Charles D. Weisselberg (argued) and

William H.D. Fernholz, Supervising Attorneys; University of

California School of Law, Berkeley, California; for Plaintiff-

Appellant.

Beth A. Jones (argued), Certified Law Student; Gerald L.

Warren (argued), Supervising Attorney; Law Office of

Gerald L. Warren and Associates, Salem, Oregon; for

Defendants-Appellees.

OPINION

IKUTA, Circuit Judge:

As a condition of his supervised release, Daniel Chavez

was required to participate in a sex offender treatment

program. When he refused to admit to the conduct

underlying his conviction, a required part of his treatment,

Chavez was discharged from the program and given a limited

jail sanction, as permitted under regulations applicable to

supervised releasees. Chavez brought a civil action under

42 U.S.C. § 1983 seeking damages for violations of his

constitutional rights due to this sequence of events, but the

district court dismissed his complaint.

CHAVEZ V. ROBINSON 7

We conclude that because Chavez did not make a

statement that was used in a criminal proceeding, see Chavez

v. Martinez, 538 U.S. 760, 770 (2003) (plurality opinion), he

may not bring a civil action against the government under

§ 1983 for a violation of his Fifth Amendment right against

self-incrimination, and we affirm the district court’s dismissal

of this claim. We also affirm the dismissal of Chavez’s

claims that the government officials involved in this incident

violated Chavez’s Sixth Amendment right to counsel and his

First Amendment right to bring a civil lawsuit against the

government.

I

In May 2008, Daniel Chavez was indicted by an Oregon

grand jury in connection with sexual misconduct involving

minors under 14 years of age.1 Chavez claimed he was

innocent of the charged offenses, and went to trial. In March

2009, the jury convicted Chavez of two counts of felony

attempted sexual abuse in the first degree and two counts of

misdemeanor private indecency. The court sentenced him to

18 months incarceration on one of the attempted sexual abuse

counts, followed by 60 months post-prison supervision.2 As

a condition of his supervised release, Chavez was required,

1

On this appeal of a grant of a motion to dismiss, we rely on the facts

set forth in the Second Amended Complaint (SAC), as well as attachments

or documents incorporated by reference, see Koala v. Khosla, 931 F.3d

887, 894 (9th Cir. 2019), and matters subject to judicial notice, see United

States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).

2

Chavez was also sentenced to 60 months probation on the other

attempt count, and two 30-day jail sentences to be served concurrently

with the 18-month sentence for the misdemeanor counts. The court

required him to register as a sex offender as a condition of probation.

8 CHAVEZ V. ROBINSON

among other things, to complete a sex offender treatment

program.3

Chavez appealed his conviction. On appeal, he was

represented by a lawyer from the state office of public

defense services. Chavez argued that the trial court erred by

admitting a physician’s medical diagnosis that a child had

been sexually abused, where that diagnosis was not based on

physical evidence of abuse, because such evidence was more

prejudicial than probative. See Or. Evid. Code, Rule 403;

State v. Southard, 218 P.3d 104, 133 (Or. 2009). Chavez also

filed a supplemental brief pro se.

While his appeal was pending, Chavez finished his prison

term and returned to Klamath County. Chavez’s probation

officer, Lisa Moore, was responsible for monitoring Chavez’s

compliance with probation and post-prison supervision. She

directed Chavez to enroll in a sex offender treatment program

provided by David Robinson and his company, Correctional

Evaluation and Treatment, Inc. (CET).

Chavez appeared for the treatment program in June 2010.

At the initial meeting, Robinson told him that as a condition

of the program, Chavez had to admit to the conduct

underlying each count of his conviction. Robinson also

required Chavez to sign a form authorizing Robinson to

disclose anything discussed in the program to Chavez’s

3

If a defendant is on post-prison supervision following conviction of

a sex crime, Oregon law requires the following special condition of the

person’s post-prison supervision: “Entry into and completion of or

successful discharge from a sex offender treatment program approved by

the board, supervisory authority or supervising officer. The program may

include polygraph and plethysmograph testing. The person is responsible

for paying for the treatment program.” Or. Rev. Stat. § 144.102(4)(b)(F).

CHAVEZ V. ROBINSON 9

probation officer. Chavez asked for an opportunity to speak

to an attorney about how the admissions might affect his

pending appeal. Robinson told him that if he failed to admit

to the criminal conduct underlying his conviction, he would

go to jail.4

When Chavez refused to admit to the conduct underlying

his counts of conviction, Robinson dismissed him from the

sex offender treatment program and notified Moore. Moore

initiated post-prison supervision sanction proceedings against

Chavez for failing to comply with the conditions of his

supervised release. At the proceedings, Chavez was found to

be in violation of the sex offender treatment requirement of

his post-prison supervision, and was given a jail sanction.

The record is unclear regarding the length of the jail sanction.

Chavez did not appeal the revocation of supervised release.

In August 2010, a similar sequence of events unfolded.

Pursuant to Chavez’s court-ordered sentence, Moore directed

Chavez to enroll in Robinson’s sex offender treatment

program. Chavez again refused to admit to the conduct

underlying his conviction, and Robinson again dismissed

4

Under Oregon law, the Department of Corrections (or another

supervisory authority) may sanction a defendant who violates post-prison

supervision conditions by imposing “a continuum of administrative

sanctions.” Or. Rev. Stat. § 144.106(1). If the available administrative

sanctions are inadequate, the supervisory authority may request the State

Board of Parole and Post-Prison Supervision to impose a sanction of

incarceration. Or. Admin. R. 213-011-0004(2). Based on such a request,

“the Board shall hold a hearing to determine whether incarceration in jail

is appropriate and may impose an appropriate term of incarceration up to

ninety (90) days for a technical violation and up to one hundred and eighty

(180) days for conduct constituting a crime.” Or. Admin. R.

213-011-0004(3).

10 CHAVEZ V. ROBINSON

Chavez from the program and notified Moore. Moore then

initiated a second round of post-prison supervision sanction

proceedings against Chavez. At the proceedings, Chavez was

found to be in violation of the sex offender treatment

condition of his post-prison supervision and a second jail

sanction was imposed against him. Again, the record is

unclear as to the length of the jail sanction imposed. And

again, Chavez did not appeal this revocation.

Following the imposition of the second sanction,

Chavez’s appellate counsel moved the state trial court to stay

the post-prison supervision condition that Chavez enroll in a

sex offender treatment program. The counsel argued that the

state could not implement the treatment provision unless it

gave Chavez complete immunity for any statements he made

during his treatment. The counsel acknowledged that the

Oregon deputy district attorney had previously represented

that Chavez would be given such immunity, but there was

nothing in the record that “b[ound] the district attorney’s

office to that pledge.” Therefore, counsel argued, the court

should require the state to make that commitment on the

record in open court.

A few weeks later, the court denied the motion to stay

treatment, but issued an order granting Chavez immunity

from any statements or admission made about his conduct in

the course of sex offender treatment, as well as any evidence

gained as a result of such statements or admission, except in

any proceedings related to homicide. In March 2011, Chavez

filed a pro se civil rights complaint in federal court under

42 U.S.C. § 1983, alleging that Moore and Robinson violated

his constitutional right not to incriminate himself. Robinson

subsequently dismissed Chavez from the sex offender

treatment program. Based on this dismissal, Moore revoked

CHAVEZ V. ROBINSON 11

Chavez’s supervised release and imposed a third jail sanction

on Chavez for refusing to participate in or comply with the

treatment program. Chavez did not appeal this revocation.

In February 2012, the Oregon Court of Appeals reversed

Chavez’s conviction and remanded for a new trial. State v.

Chavez, 272 P.3d 167, 167 (Or. 2012). The state conceded

that the trial court made an evidentiary error in admitting a

physician’s diagnosis that Chavez had sexually abused the

alleged victims, and the court agreed. Id. On remand,

Chavez and the state entered into a plea agreement pursuant

to which Chavez pleaded “no contest” to one count of felony

attempted sexual abuse, and the state dismissed the other

counts and recommended a sentence of time served with a

requirement that Chavez register as a sex offender. The court

accepted the plea in February 2014 and imposed the sex

offender registration requirement.

In 2013, the district court issued an order to show cause

why Chavez’s civil rights complaint should not be dismissed

for failure to prosecute. Chavez filed a document titled “Tort

Claim with Damages” that named Robinson and the Oregon

Board of Parole as defendants. The district court construed

this document as an amended complaint and sua sponte

dismissed the complaint with prejudice on the ground that the

defendants were immune from damages. See 28 U.S.C.

§ 1915(e)(2)(B)(iii). It held that members of the Oregon

Board of Parole were entitled to absolute immunity under the

Eleventh Amendment. It also held that Robinson was entitled

to qualified immunity because “[a] reasonable therapist in

Robinson’s place would not believe he was violating a

convicted sex offender’s civil rights by evaluating the

offender in accordance with the legally mandated conditions

12 CHAVEZ V. ROBINSON

of probation,” and, to the extent Moore was still a defendant

in the case, she was also entitled to qualified immunity.

Chavez appealed, and we reversed, holding that the

district court erred in dismissing the complaint on qualified-

immunity grounds given the procedural posture of the case at

that time. Chavez v. Robinson, 817 F.3d 1162, 1165 (9th Cir.

2016). On remand, Chavez (now represented by pro bono

counsel) filed a first amended complaint, alleging that Moore

and Robinson violated his rights under the Fifth Amendment

and the Fourteenth Amendment Due Process Clause. Both

defendants moved to dismiss the claims against them. Moore

contended, among other things, that she was entitled to

absolute immunity as a parole officer, and Robinson argued

he was not acting under color of state law, or, alternatively,

that he was entitled to qualified immunity. The district court

granted the motions to dismiss but allowed leave to amend.

Chavez filed a second amended complaint (the operative

pleading here) in May 2018 (the SAC). The SAC alleged

three different claims under § 1983: (1) a violation of

Chavez’s Fifth and Fourteenth Amendment rights by

requiring him to admit to the conduct underlying his

convictions, (2) a violation of his Sixth Amendment right to

counsel by retaliating against him for asserting his right to

speak with a lawyer, and (3) a violation of his First

Amendment right to free speech by dismissing him from

treatment after he filed the pending lawsuit. The court again

dismissed the complaint, this time with prejudice. After

assuming without deciding that Robinson was a state actor,

the court held that Chavez failed to state a claim with respect

to all three claims, and that, in any event, the defendants were

entitled to qualified immunity on all three claims. This

appeal followed.

CHAVEZ V. ROBINSON 13

We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo a district court’s dismissal under Rule

12(b)(6) of the Federal Rules of Civil Procedure. Curtis v.

Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). “To

survive a motion to dismiss, a plaintiff must “plead[] factual

content that allows 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). We accept as

true “well-pleaded factual allegations,” but not “[t]hreadbare

recitals of the elements of a cause of action, supported by

mere conclusory statements.” Id.

II

We first address Chavez’s claim that Robinson and Moore

violated his Fifth Amendment right against self-

incrimination. Chavez’s claim requires us to consider the

distinction between the “core constitutional right protected by

the Self-Incrimination Clause” and the “prophylactic rules

designed to safeguard” that right. Chavez, 538 U.S. at 770.

A

1

The Fifth Amendment states that “[n]o person . . . shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. “The privilege against

self-incrimination guaranteed by the Fifth Amendment is a

fundamental trial right of criminal defendants.” United States

v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). It “permits

a person to refuse to testify against himself at a criminal trial

in which he is a defendant.” Minnesota v. Murphy, 465 U.S.

420, 426 (1984). “Although conduct by law enforcement

14 CHAVEZ V. ROBINSON

officials prior to trial may ultimately impair that right, a

constitutional violation occurs only at trial.” Verdugo-

Urquidez, 494 U.S. at 264.

While the text of the Self-Incrimination Clause

establishes a trial right, see id., the Supreme Court has

interpreted the clause as barring the government from

engaging in certain pretrial conduct, such as compelling a

person to make incriminating statements (absent a grant of

immunity) or punishing a person who refuses to make such

statements, see Lefkowitz v. Cunningham, 431 U.S. 801, 806

(1977) (“[The] government cannot penalize assertion of the

constitutional privilege against compelled self-incrimination

by imposing sanctions to compel testimony which has not

been immunized.”). A person subjected to questioning by the

government may “refuse to answer unless and until he is

protected at least against the use of his compelled answers

and evidence derived therefrom in any subsequent criminal

case in which he is a defendant.” Lefkowitz v. Turley,

414 U.S. 70, 78 (1973). This rule “applies alike to civil and

criminal proceedings, wherever the answer might tend to

subject to criminal responsibility him who gives it” in future

criminal proceedings. Id. at 77 (quoting McCarthy v.

Arndstein, 266 U.S. 34, 40 (1924)). The Court has applied

this rule to protect police officers from the choice “between

self-incrimination or job forfeiture,” Garrity v. New Jersey,

385 U.S. 493, 496 (1967), to protect public employees from

similar sanctions, see Uniformed Sanitation Men Ass’n v.

Comm’r of Sanitation of City of N.Y., 392 U.S. 280, 283–84

(1968), and to protect independent contractors from losing

their opportunity to secure public contracts, Turley, 414 U.S.

at 82. In the probation context, the Court has held that the

government cannot “constitutionally carry out a threat to

revoke probation for the legitimate exercise of the Fifth

CHAVEZ V. ROBINSON 15

Amendment privilege,” as when a probationer refuses “to

answer questions calling for information that would

incriminate in separate criminal proceedings.” Murphy,

465 U.S. at 438.5

The Court has taken different approaches to shield

individuals from such government compulsion. Where

witnesses refused to testify despite the government’s threat

that sanctions would be imposed, “the Court ruled that the

state could not constitutionally make good on its prior threat.”

Id. at 434. Where “an individual succumbed to the pressure

placed upon him, failed to assert the privilege, and disclosed

incriminating information which the state later sought to use

against him in a criminal prosecution,” id., the Court held the

privilege was not waived, id., and such testimony was subject

to an exclusionary rule which “prohibits use in subsequent

criminal proceedings of statements obtained” under a

compulsion, Garrity, 385 U.S. at 500; see also Turley,

414 U.S. at 78 (holding that if a witness is compelled to

answer incriminating questions without immunity, “his

5

The dissent relies heavily on these Supreme Court decisions holding

that the government may not punish a person who refuses to make non-

immunized incriminating statements. Dissent at 50–53 (citing Murphy,

465 U.S. at 434; Malloy v. Hogan, 378 U.S. 1, 8 (1964); Cunningham,

431 U.S. at 806; Uniformed Sanitation Men, 392 U.S. at 283; Turley,

414 U.S. at 82). But the scope of the shield provided by the Self-

Incrimination Clause is neither in doubt nor at issue in this case, because

the Supreme Court subsequently made clear that a person cannot use this

shield as a sword to claim damages for a violation of this prophylactic

rule. See Section II.A.2, infra.

16 CHAVEZ V. ROBINSON

answers are inadmissible against him in a later criminal

prosecution”).6

The shield provided by this judicial doctrine has

limitations. First, the Court has made clear that it is not

implicated if statements are made voluntarily, as when a

person “is anxious to make a clean breast of the whole affair,”

see Garrity, 385 U.S. at 499. Nor does it apply when a

person does not invoke the privilege against self-

incrimination and any pressure to make incriminating

statements does not rise to the level of compulsion, see

Murphy, 465 U.S. at 427 (holding that a probationer’s

“general obligation to appear and answer [the probation

officer’s] questions truthfully did not in itself convert [the

probationer’s] otherwise voluntary statements into compelled

ones”). Second, the shield of the judge-made rule is not

applicable if the statements do not pose a reasonable risk of

being incriminating. Id. Nor is the shield applicable if the

state has provided an appropriate scope of immunity to the

6

The Court has treated the bar against compelling a person to sign a

document waiving immunity as distinct from the bar against compelling

testimony because “[o]nce an immunity waiver is signed, the signatory is

unable to assert a Fifth Amendment objection to the subsequent use of his

statements in a criminal case, even if his statements were in fact

compelled.” Chavez, 538 U.S. at 768 n.2. Thus when employees have

been discharged “not for failure to answer relevant questions about [their]

official duties, but for refusal to waive a constitutional right” by signing

a waiver document, Gardner v. Broderick, 392 U.S. 273, 279 (1968), the

Court has held that “the State may not insist that appellees waive their

Fifth Amendment privilege against self-incrimination and consent to the

use of the fruits of the interrogation in any later proceedings brought

against them,” Turley, 414 U.S. at 84–85; see also Gardner, 392 U.S.

at 279 (invalidating the discharge of a police officer for “refusal to execute

a document purporting to waive his constitutional rights and to permit

prosecution of himself on the basis of his compelled testimony”).

CHAVEZ V. ROBINSON 17

witness. Kastigar v. United States, 406 U.S. 441, 453 (1972).

Rather, if a person’s testimony is immunized “from use and

derivative use” in a future criminal proceeding, such

immunity “is sufficient to compel testimony over a claim of

the privilege.” Id. A state may constitutionally punish

individuals who refuse to provide testimony once immunized.

See Turley, 414 U.S. at 84 (holding that “if immunity is

supplied and testimony is still refused,” the courts may

compel testimony “by use of civil contempt and coerced

imprisonment,” and the government may deprive them of

employment or impose other punishments).

The limitations on the protection provided by the Self-

Incrimination Clause with respect to the government’s pre-

trial conduct are equally applicable to the protections

provided by the clause at trial. To invoke the Fifth

Amendment’s trial right, a person must be “compelled in any

criminal case to be a witness against himself.” U.S. Const.

amend. V. If there is no compulsion, because the statement

is voluntary, or because the incriminating testimony cannot

be used against the witness due to the grant of immunity, then

the Self-Incrimination Clause is not implicated.

2

In Chavez v. Martinez, the Supreme Court considered the

distinction between the trial right set forth in the text of the

Fifth Amendment, and the broader judge-made rule shielding

individuals from government compulsion to make

incriminating statements. 538 U.S. at 770. Chavez involved

a plaintiff engaged in a shootout with the police, which

resulted in his suffering severe injuries that ultimately left

him “permanently blinded and paralyzed from the waist

down.” Id. at 764. The police accompanied plaintiff to the

18 CHAVEZ V. ROBINSON

hospital, where they questioned him while he was receiving

medical treatment. Id. According to the district court, the

plaintiff “had been shot in the face, both eyes were injured; he

was screaming in pain, and coming in and out of

consciousness while being repeatedly questioned about

details of the encounter with the police.” Id. at 798

(Kennedy, J., concurring in part). The plaintiff was not given

Miranda warnings or otherwise told that his cooperation

should be voluntary. Id. While undergoing this questioning,

the plaintiff made damaging admissions. Id. at 764 (plurality

opinion). In the end, the government did not charge plaintiff

with a crime or use the plaintiff’s answers against him in any

criminal prosecution. Id. Nevertheless, the plaintiff brought

a § 1983 action against the police officer on the ground that

the coercive questioning itself violated his Fifth Amendment

rights, “as well as his Fourteenth Amendment substantive due

process right to be free from coercive questioning.” Id. at

765. A Ninth Circuit panel agreed that the plaintiff had stated

a claim that the coercive questioning violated both his Fifth

and Fourteenth Amendment rights. Id. at 765–66.

A majority of the Supreme Court reversed. Id. at 776.

The case generated six separate opinions. Two opinions

reversed our ruling on the Fifth Amendment claim: an

opinion authored by Justice Thomas and joined by Chief

Justice Rehnquist, Justice O’Connor, and Justice Scalia as to

the Fifth Amendment analysis, id. at 763–76, and an opinion

authored by Justice Souter and joined by Justice Breyer, id.

at 779 (Souter, J., concurring).7

7

A different majority held that the plaintiff might be able to establish

the elements of a substantive due process claim for outrageous

government conduct, and remanded this claim for further consideration.

CHAVEZ V. ROBINSON 19

Justice Thomas’s plurality opinion concluded that the

officer’s alleged conduct did not violate the plaintiff’s core

constitutional Fifth Amendment rights, and therefore the

officer was entitled to qualified immunity. Id. at 766

(plurality opinion). According to the plurality, based on the

text of the Fifth Amendment, a person’s rights under the Self-

Incrimination Clause are not violated unless that person is

prosecuted for a crime and actually compelled to be a witness

against himself in a criminal case. Id. at 766–67. “The text

of the Self-Incrimination Clause simply cannot support the

Ninth Circuit’s view that the mere use of compulsive

questioning, without more, violates the Constitution.” Id.

at 767. The plurality recognized that the Court had also

created “prophylactic rules designed to safeguard the core

constitutional right protected by the Self-Incrimination

Clause.” Id. at 770. Such procedural safeguards are “not

themselves rights protected by the Constitution but . . .

measures to insure that the right against compulsory

self-incrimination was protected.” Id. (quoting Michigan v.

Tucker, 417 U.S. 433, 444 (1974)). Therefore, a person

cannot seek damages under § 1983 for a violation of the

“evidentiary privilege that protects witnesses from being

forced to give incriminating testimony.” Id. at 770–71.

Justice Thomas, joined by Chief Justice Rehnquist and Justice

Scalia, also concluded that the questioning did not violate the

plaintiff’s due process rights. Id. at 776.

Justice Souter, in an opinion joined by Justice Breyer,

agreed that the plaintiff’s claims should be rejected. Souter

recognized that the rule the plaintiff sought, “asking this

Court to hold that the questioning alone was a completed

violation of the Fifth and Fourteenth Amendments subject to

redress by an action for damages under § 1983,” was “well

outside the core of Fifth Amendment protection,” because the

20 CHAVEZ V. ROBINSON

Self-Incrimination Clause “focuses on courtroom use of a

criminal defendant’s compelled, self-incriminating testimony,

and the core of the guarantee against compelled self-

incrimination is the exclusion of any such evidence.” Id.

at 777 (Souter, J., concurring). But, according to Justice

Souter, “that alone [was] not a sufficient reason to reject” the

plaintiff’s § 1983 claim. Id. Justice Souter relied on an

additional reason: the plaintiff could not “make the powerful

showing, subject to a realistic assessment of costs and risks,

necessary to expand protection of the privilege against

compelled self-incrimination to the point of the civil

liability,” which the plaintiff asked the Court to recognize.

Id. at 778 (cleaned up). Justice Souter worried that if the

evidentiary privilege could be used as a sword, damages

would be available “in every instance of interrogation

producing a statement inadmissible under Fifth and

Fourteenth Amendment principles, or violating one of the

complementary rules [the Court has] accepted in aid of the

privilege against evidentiary use.” Id. Broadly expanding the

availability of damage actions in this manner was not

“necessary in aid of the basic guarantee,” and instead a

plaintiff could raise a substantive due process claim for

outrageous government conduct. Id. at 779. Therefore,

Justice Souter rejected the Fifth Amendment claim.

Nevertheless, he disagreed with Justice Thomas on the

substantive due process claim, and would remand that claim

to the district court. Id. at 779–80. Four other justices agreed

that the substantive due process claim for outrageous

government conduct should be remanded, making the

subsection of Justice Souter’s opinion discussing this issue

the opinion of the Court. See id. at 777 n.*; see also id.

at 799 (Kennedy, J., concurring in part).

CHAVEZ V. ROBINSON 21

Although none of the six separate opinions in Chavez

“provides a binding rationale” in itself, Tekoh v. County of

Los Angeles, 985 F.3d 713, 722 (9th Cir. 2021), based on the

opinions of the five justices who rejected the plaintiff’s Fifth

Amendment claim, we have concluded that Chavez stands for

the proposition 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,” Aguilera

v. Baca, 510 F.3d 1161, 1173 (9th Cir. 2007) (quoting

Chavez, 538 U.S. at 769). Rather, “[o]nly after a compelled

incriminating statement is used in a criminal proceeding has

an accused suffered the requisite constitutional injury for

purposes of a § 1983 action.” Id.; see also Stoot v. City of

Everett, 582 F.3d 910, 923 (9th Cir. 2009) (holding that in

Chavez “the Court held that coercive police questioning does

not violate the Fifth Amendment, absent use of the statements

in a criminal case” and that “the Fifth Amendment was not

violated unless and until allegedly coerced statements were

used against the suspect in a criminal case”). In short, “the

Fifth Amendment provides a right against compelled

self-incrimination, but that right only applies when a

compelled statement is used against a defendant in a ‘criminal

case.’” United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir.

2018) (quoting Chavez, 538 U.S. at 766–67).

Accordingly, we have recognized the distinction between

the core Fifth Amendment trial right, which a plaintiff can

use as a sword against a government official in a § 1983

action, and the judicially created prophylactic rule, which

shields a person from coercive government questioning, but

does not provide the basis for a § 1983 action. See, e.g., id.

at 1020; Stoot, 582 F.3d at 923; Aguilera, 510 F.3d at

1173–74. We first recognized this distinction in United

States v. Antelope, where a convicted sex offender on

22 CHAVEZ V. ROBINSON

supervised release was required to disclose his “full sexual

history” (including past criminal offenses other than those for

which he was convicted) on pain of revocation of probation

and supervised release. 395 F.3d 1128, 1131 (9th Cir. 2005).

The district court revoked the sex offender’s probation for

failing to comply with this requirement, id., and then denied

the sex offender’s request for immunity, even though his

incriminating statements could be used for prosecutorial

purposes, id. at 1139. We held that “[b]ecause the

government and district court have consistently refused to

recognize that the required answers may not be used in a

criminal proceeding” against the sex offender, “the revocation

of his probation and supervised release violated his Fifth

Amendment right against self-incrimination.” Id. (cleaned

up) (quoting Murphy, 465 U.S. at 435 n.7). Therefore, we

reversed the revocation of the sex offender’s supervised

release. Id. at 1142. In doing so, we rejected the

government’s characterization of Chavez as holding that the

defendant could not “assert the Fifth Amendment right until

the moment a compelled statement is used in a criminal

proceeding against him.” Id. at 1140. We explained that

“[c]ritical to the reasoning of all six justices [in Chavez] was

the simple principle that the scope of the Fifth Amendment’s

efficacy is narrower when used as a sword in a civil suit than

when used as a shield against criminal prosecution.” Id.

at 1141. Therefore, a defendant can successfully invoke

prophylactic rules that safeguard the Fifth Amendment right

against self-incrimination, even though the defendant could

not “turn the tables” and impose civil liability under § 1983

for a violation of those rules. Id.

Subsequently, we directly addressed the circumstances

under which a plaintiff could bring a civil action for violation

of his rights under the Self-Incrimination Clause. See

CHAVEZ V. ROBINSON 23

Aguilera, 510 F.3d at 1173–74. Aguilera dismissed a § 1983

action alleging a Fifth Amendment violation brought by

deputies subjected to questioning during an internal

investigation because “the deputies were never charged with

a crime, and no incriminating use of their statements has ever

been made.” Id. at 1173. Noting that six justices in Chavez

agreed with the proposition that use of a compelled statement

in a criminal proceeding is a prerequisite to a § 1983 action

based on the Self-Incrimination Clause, we held, “[p]lainly,

Chavez applies in situations where a party actually makes an

incriminating statement and the government then decides to

use it in a criminal proceeding. If it does so, the Fifth

Amendment is violated. Otherwise, it is not.” Id. at 1174

n.9. If an incriminating statement is not used in a criminal

proceeding, “there is no cognizable Fifth Amendment claim.”

Id.

Cases after Aguilera clarified what constitutes use of a

compelled statement in a criminal proceeding, but reaffirmed

that a plaintiff cannot bring a § 1983 claim absent such use.

Stoot, 582 F.3d at 923 (characterizing the plurality and

concurring opinions in Chavez as agreeing that use of a

compelled statement in a criminal case is required to bring a

§ 1983 claim based on the Fifth Amendment); Crowe v.

County of San Diego, 608 F.3d 406, 427 (9th Cir. 2010)

(noting that “[i]n Chavez, the Supreme Court held that mere

coercion does not create a cause of action under § 1983 for a

violation of the Self-Incrimination Clause, absent use of the

compelled statement in a criminal case,” and holding that use

of a compelled statement in certain pre-trial proceedings

violated the Fifth Amendment); Hulen, 879 F.3d at 1018

(reiterating that an individual may bring a § 1983 claim based

on the Self-Incrimination Clause only “when a compelled

statement is used against a defendant in a ‘criminal case,’”

24 CHAVEZ V. ROBINSON

and holding that use of a compelled statement in a parole

revocation hearing did not qualify as “use[] in a criminal

case”); cf. Tekoh, 985 F.3d at 721 (“The specific holding in

Chavez does not govern Tekoh’s case because unlike the

plaintiff in Chavez, Tekoh’s un-Mirandized statements were

used against him in criminal proceedings.”); Tobias v.

Arteaga, 996 F.3d 571, 583 (9th Cir. 2021) (holding that a

plaintiff could bring a § 1983 action for a coercive

interrogation where the government had used the resulting

confession in a criminal case against the plaintiff).

Our sister circuits have likewise uniformly interpreted

Chavez as standing for the proposition that use of a compelled

statement in a criminal proceeding is a prerequisite to a

§ 1983 suit based on a violation of the Self-Incrimination

Clause. See, e.g., Koch v. City of Del City, 660 F.3d 1228,

1245 n.9 (10th Cir. 2011) (“Although Justices Souter and

Breyer did not join the plurality [in Chavez], they agreed that

the Fifth Amendment ‘focuses on courtroom use of a criminal

defendant’s compelled, self-incriminating testimony.’”);

Renda v. King, 347 F.3d 550, 558 (3d Cir. 2003) (“[S]ix

Justices [in Chavez] . . . agreed that mere custodial

interrogation absent Miranda warnings is not a basis for a

§ 1983 claim.”); Allison v. Snyder, 332 F.3d 1076, 1080 (7th

Cir. 2003) (“A majority of the Justices concluded in Chavez

. . . that courts may not award damages [where] . . .

incriminating information . . . is never used in a criminal

prosecution.”); see also United States v. Riley, 920 F.3d 200,

205 (4th Cir. 2019); United States v. Allen, 864 F.3d 63, 82

(2d Cir. 2017); Knight ex rel. Kerr v. Miami-Dade County,

856 F.3d 795, 823 (11th Cir. 2017); Winslow v. Smith,

696 F.3d 716, 731 n.4 (8th Cir. 2012); Murray v. Earle,

405 F.3d 278, 285 n.11 (5th Cir. 2005). This rule is

applicable whether the plaintiff refused to speak in the face of

CHAVEZ V. ROBINSON 25

coercive questioning or succumbed to the coercion and made

incriminating statements. See, e.g., Entzi v. Redmann,

485 F.3d 998, 1002 (8th Cir. 2007) (rejecting a § 1983 claim

based on the Self-Incrimination Clause where the plaintiff

had been sanctioned for declining to make any statement);

Koch, 660 F.3d at 1245 (same); Burrell v. Virginia, 395 F.3d

508, 513 (4th Cir. 2005) (same).

The dissent argues that because Tekoh held that none of

the six opinions in Chavez provided a binding rationale,

985 F.3d at 722, Chavez and our opinions interpreting Chavez

have no precedential effect beyond their facts and specific

result. Dissent at 58. This argument is meritless. In Chavez,

six justices agreed that there can be no § 1983 claim unless a

plaintiff’s incriminating statement is introduced in his

criminal proceeding. Given this shared conclusion, it makes

no difference that Justice Thomas reached this conclusion

relying on the text of the Self-Incrimination Clause itself,

Chavez, 538 U.S. at 767, while Justice Souter held merely

that there was not a sufficient basis “to expand protection of

the privilege against compelled self-incrimination to the point

of the civil liability” for violations of “one of the

complementary rules [the Court has] accepted in aid of the

privilege,” id. at 777–78 (Souter, J., concurring). We

confirmed the rule established by Chavez in subsequent

opinions holding that the Self-Incrimination Clause is not

violated until a statement is introduced in a criminal

proceeding. See, e.g., Antelope, 395 F.3d at 1141; see also

Aguilera, 510 F.3d at 1174 n.9. Tekoh does not purport to

overrule our binding precedent, and of course a three-judge

panel could not do so. See Gonzalez v. Arizona, 677 F.3d

383, 389 n.4 (9th Cir. 2012) (en banc) (“[A] published

decision of this court constitutes binding authority which

‘must be followed unless and until overruled by a body

26 CHAVEZ V. ROBINSON

competent to do so.’” (quoting Hart v. Massanari, 266 F.3d

1155, 1170 (9th Cir. 2001))), aff’d sub nom. Arizona v. Inter

Tribal Council of Ariz., Inc., 570 U.S. 1 (2013). Therefore,

we are bound by the rule adopted by six justices in Chavez, as

enunciated in our precedent, which is also consistent with the

rule adopted by our sister circuits.

B

We now turn to the question whether Chavez can assert

a § 1983 claim for a Fifth Amendment violation on the

ground that the defendants sanctioned him for asserting his

right to remain silent, without expressly granting him

immunity from use of his statement in a subsequent criminal

proceeding. In light of the principles discussed above,

Chavez may not do so. To bring a § 1983 action based on a

Fifth Amendment violation, the government must violate a

plaintiff’s “core constitutional right,” Antelope, 395 F.3d

at 1141, which is the “use of the compelled statements in a

criminal case against the witness,” Aguilera, 510 F.3d at 1173

(quoting Chavez, 538 U.S. at 769). Here, Chavez did not

make an incriminating statement, nor was any such statement

used in a criminal proceeding. Rather, his claim is based on

a violation of the judge-made protection from being forced to

give incriminating testimony. Because this privilege is a

“prophylactic rule[] designed to safeguard the core

constitutional right protected by the Self-Incrimination

Clause” rather than the “core constitutional right” itself,

Chavez, 538 U.S. at 770, Chavez may use the privilege only

defensively as a shield, and may not wield it as a sword in an

action for damages, see Antelope, 395 F.3d at 1141; Aguilera,

510 F.3d at 1173. Thus, we affirm the dismissal of Chavez’s

Fifth Amendment claim.

CHAVEZ V. ROBINSON 27

Chavez urges us to rely on the Sixth Circuit’s conclusion

that “Chavez only applies where a party actually makes

self-incriminating statements,” and does not apply to a person

like himself, who refused to make self-incriminating

statements. Moody v. Mich. Gaming Control Bd., 790 F.3d

669, 675 (6th Cir. 2015) (quoting Aguilera, 510 F.3d at 1179

(Kozinski, J., dissenting “for the most part”)). The dissent

likewise relies on this distinction, arguing that the Chavez

rule expressed in our precedent does not apply “where the

privilege is invoked, no statement is given, and the individual

suffers punishment as a consequence,” Dissent at 48, and

attempts to distinguish our precedent as not including all

three factual circumstances.

This argument fails because Chavez’s and the dissent’s

proposed rule is directly contrary to our precedent. Aguilera

explained that an accused suffers “the requisite constitutional

injury for purposes of a § 1983 action” only “after a

compelled incriminating statement is used in a criminal

proceeding.” 510 F.3d at 1173. Therefore, it makes no

difference if the government punished a person for refusing

to make incriminating statements, Cunningham, 431 U.S.

at 807, or if the government coerced incriminating statements

by threat of punishment, Garrity, 385 U.S. at 499–500.

Neither violation provides a basis for a § 1983 action. See

Section II.A.2, supra; cf. Tekoh, 985 F.3d at 721 (allowing a

plaintiff’s § 1983 claim to proceed when the statement was

used in his criminal case); Tobias, 996 F.3d at 583 (same).

Therefore, the dissent’s argument that a violation at trial is

not required when a person remains silent in the face of

coercive government questioning, Dissent at 48, is meritless.

Other circuits have agreed with our approach. See, e.g.,

Entzi, 485 F.3d at 1004 (rejecting a § 1983 claim based on the

Self-Incrimination Clause where the plaintiff had been

28 CHAVEZ V. ROBINSON

sanctioned for declining to make any statement); Koch,

660 F.3d at 1245 (same); Burrell, 395 F.3d at 513 (same).

Moody gives no support to Chavez because, as its reliance on

the dissent in Aguilera suggests, Moody is contrary to our

precedent.

Contrary to the dissent, Dissent at 48, there is no

exception to the Chavez rule when a plaintiff invokes the

privilege against self-incrimination, remains silent, and

suffers punishment. In Entzi, for instance, a prisoner refused

to undergo sex offender treatment that required him to admit

guilt to the offense of conviction. 485 F.3d at 1000. As a

result, the prisoner lost performance-based sentence-

reduction credits, which “extended his term of imprisonment

by more than a year.” Id. at 1003. The prisoner brought a

damages action under § 1983, on the ground that the loss of

credits punished his assertion of the privilege against self-

incrimination. Id. at 1003. The Eighth Circuit rejected this

claim, holding, among other things, that “even assuming the

denial of sentence-reduction credits were deemed to be

‘compulsion’ for purposes of the Fifth Amendment,” no

damages remedy under § 1983 was available, because “[n]o

statements compelled from [the prisoner] have been

introduced in evidence in a criminal case.” Id. at 1004.

Lacking any support in precedent for his proposed rule,

Chavez raises a policy argument. According to Chavez, if he

cannot bring a § 1983 action, he will be deprived of any

remedy for the jail sanction that the government wrongly

imposed upon him for refusing to make incriminating

statements. The dissent likewise argues that the shield

against the government’s efforts to compel admissions is

meaningless if the government cannot be held liable for a

violation under § 1983. See Dissent at 48. These arguments

CHAVEZ V. ROBINSON 29

miss the point of Chavez’s distinction between core

constitutional rights and prophylactic rules. Even if the

defendants erred in requiring Chavez to admit to the criminal

conduct underlying his convictions on pain of a jail sanction,

Chavez makes clear that such an error in implementing a

prophylactic rule does not violate Chavez’s constitutional

rights, and therefore does not give rise to a constitutional tort

under § 1983. The prophylactic rules are in place to

safeguard Chavez’s core constitutional right, which in this

case was not violated. See Chavez, 538 U.S. at 772.

Moreover, contrary to Chavez and the dissent, Chavez

could have sought protection from government sanctions in

other ways. First, Chavez could have demanded immunity

before making a statement in the sex offender therapy, see

Kastigar, 406 U.S. at 453, and in fact, Chavez obtained such

immunity after he raised the issue. Alternatively, like the

prisoner in Antelope, Chavez could have appealed the

revocation of supervised release and obtained a reversal of

the revocation and an order preventing the government from

compelling incriminating statements absent immunity. See

395 F.3d at 1141.8

8

The dissent argues that Chavez could not seek such relief because,

according to Chavez’s original pro se complaint, “[t]he moment he refused

to incriminate himself, he ‘was immediately apprehended, handcu61ffed

and taken to jail’ where ‘he was detained without bail.’” Dissent at 61 n.3.

Chavez chose not to make this dramatic assertion in his Second Amended

Complaint, which renders his original complaint “non-existent.” Ramirez

v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). The

amended complaint states only that Moore (not Robinson) revoked

Chavez’s supervised release, which ultimately led to the imposition of an

incarceration sanction. On appeal, Chavez asserts that “Defendants

[Robinson and Moore] immediately terminated him from the program and

jailed him,” but later explains that Robinson dismissed Chavez from the

program and notified Moore “who jailed Mr. Chavez for violating the

30 CHAVEZ V. ROBINSON

Finally, if Chavez had asserted his Fifth Amendment

rights and then made the admissions required by his sex

offender treatment program, the exclusionary rule would have

allowed Chavez to suppress the confession if a re-trial were

to occur. See Murphy v. Waterfront Comm’n of New York

Harbor, 378 U.S. 52, 76 (1964), abrogated on other grounds,

United States v. Balsys, 524 U.S. 666, 687–88 (1998). In

other words, the prophylactic rules are available as a

safeguard to prevent “conduct by [government] officials prior

to trial” that could impair a person’s core Fifth Amendment

rights, Verdugo-Urquidez, 494 U.S. at 264; they do not

provide a sword to sanction the government for an error in

implementing one of these procedural safeguards. As Justice

Souter warned, if a § 1983 action could be raised to enforce

every “complementary rule” the Supreme Court has

“accepted in aid of the privilege against evidentiary use,”

there would be “no limiting principle or reason to foresee a

stopping place short of liability in all such cases.” Chavez,

538 U.S. at 779 (Souter, J., concurring).

Finally, the dissent relies on McKune v. Lile, 536 U.S. 24

(2002) (plurality opinion), to support its argument that

Chavez has a § 1983 cause of action here. Dissent at 60.

This reliance is misplaced because McKune, another plurality

opinion, did not even address the issue before us. In McKune,

prison officials recommended that a convicted sex offender

“enter a prison treatment program so that he would not rape

again upon release.” 536 U.S. at 29. The program required

each participant “to admit having committed the crime for

which he is being treated and other past offenses.” Id. The

treatment requirement.” In any event, Chavez was not precluded from

appealing a government sanction, given that he was represented by

counsel at this time.

CHAVEZ V. ROBINSON 31

program did not offer immunity because of the therapeutic

benefit for the participants “to accept full responsibility for

their past actions.” Id. at 34. The prisoner in McKune

refused to participate in the program on the ground that the

required admissions would violate his Fifth Amendment

privilege. Id. at 31. Instead, he brought an action under

§ 1983 seeking an injunction to prevent the prison from

“withdrawing his prison privileges and transferring him to a

different housing unit” as a result of his failure to enter into

the program. Id.

The Supreme Court rejected his claim. Justice Kennedy’s

plurality opinion concluded that the prisoner had not suffered

a violation of his Fifth Amendment right because “[t]he

consequences in question . . . are not ones that compel a

prisoner to speak about his past crimes despite a desire to

remain silent.” Id. at 36. Justice O’Connor’s opinion, which

we treat as controlling, see Antelope, 395 F.3d at 1133 n.1,

agreed that the consequences were not “so great as to

constitute compulsion for purposes of the Fifth Amendment

privilege against self-incrimination,” 536 U.S. at 49

(O’Connor, J., concurring), but cautioned that she was not

establishing “a comprehensive theory of the Fifth

Amendment privilege against self-incrimination,” id. at 53.

In other words, the Supreme Court resolved the prisoner’s

appeal on the ground that the absence of compulsion

eliminates the possibility of a Fifth Amendment claim.

Having rejected the prisoner’s § 1983 claim on the ground

that his testimony was not compelled, the Court did not

consider any other ground for rejecting the claim. No opinion

in McKune addressed whether the prisoner could have raised

a § 1983 claim even though his admissions were not used in

a criminal case against him. There is no basis, therefore, for

32 CHAVEZ V. ROBINSON

the dissent’s assertion that “all nine justices in McKune

indicated” that § 1983 liability would attach to a claim like

Chavez’s. Dissent at 60. Put differently, McKune provides

no support whatsoever for the dissent’s proposed rule that a

prisoner who suffers punishment as a consequence of failing

to speak can bring an action under § 1983. Dissent at 60.

Rather than conjure a rule from McKune’s silence, it is more

fruitful to consider how the Court addressed that exact issue

in the very next term, and held that a plaintiff has not suffered

a violation of the core constitutional right—and cannot bring

a § 1983 action—if no compelled statement is used in a

criminal case. Chavez, 538 U.S. at 772.

In sum, we are bound by our precedent, which makes

clear that the Fifth Amendment is not violated “unless and

until allegedly coerced statements were used against the

suspect in a criminal case.” Stoot, 582 F.3d at 923. Because

“the core of the guarantee against compelled

self-incrimination is the exclusion” of compelled,

incriminating evidence at trial, Chavez, 538 U.S. at 777

(Souter, J., concurring), and there is a completed violation of

such a right only if the testimony is used at trial, we conclude

that the district court did not err in dismissing Chavez’s Fifth

Amendment § 1983 action.

C

Because we conclude that Chavez cannot bring a § 1983

claim for violation of his Fifth Amendment rights, we address

the defendants’ claim that they are entitled to qualified

immunity only briefly.

“Qualified immunity shields federal and state officials

from money damages unless a plaintiff pleads facts showing

CHAVEZ V. ROBINSON 33

(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “A clearly established right is one that is

‘sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle

v. Howards, 566 U.S. 658, 664 (2012)). In determining

whether an officer can be said to have violated a clearly

established right, we must not “define clearly established law

at a high level of generality,” al-Kidd, 563 U.S. at 742, but

instead “the clearly established law must be ‘particularized’

to the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552

(2017) (per curiam) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). The Court does “not require a case directly

on point,” but “existing precedent must have placed the

statutory or constitutional question beyond debate.” Id.

(cleaned up)(quoting al-Kidd, 563 U.S. at 741). Put simply,

qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986).

When determining claims of qualified immunity at the

motion-to-dismiss stage, we take the well-pleaded facts in the

complaint as true. Keates v. Koile, 883 F.3d 1228, 1235 (9th

Cir. 2018). Here, the SAC alleges that the court ordered

Chavez to complete a sex offender treatment program and

that Robinson (the director of the program) required Chavez

to “admit to the conduct alleged in each count of conviction”

34 CHAVEZ V. ROBINSON

as a condition of participating in the program.9 It is well

established that sex offender treatment programs typically

require “the program participant to admit having committed

the crime for which he is being treated and other past

offenses,” and experts deem this to be an essential component

of the program. McKune, 536 U.S. at 30; see also Antelope,

395 F.3d at 1137 (noting that “requiring convicted sex

offenders to give a sexual history, admitting responsibility for

past misconduct to participating counselors, serves an

important rehabilitative purpose,” and that “[r]esearch

indicates that offenders who deny all allegations of sexual

abuse are three times more likely to fail in treatment than

those who admit even partial complicity” (quoting McKune,

536 U.S. at 33)).10 The SAC does not provide any

information regarding whether Chavez’s statements would,

or could, be used in a subsequent criminal proceeding.

Considering the “particularized” facts of this case, see

White, 137 S. Ct. at 552, we must consider whether it was

beyond debate that the director of a sex offender therapy

program and a parole officer, acting under a valid court order

requiring a releasee to participate in a sex offender program,

9

Because the SAC alleges that Robinson acted under color of state

law, we will assume it to be true for purposes of this analysis. Cf. Johnson

v. Knowles, 113 F.3d 1114, 1119 (9th Cir. 1997) (holding that a non-

governmental employee may be sued as a state actor under § 1983 only if

he is a “willful participant[] in joint activity with the State or its agents”).

10

Oregon law also requires that releasees admit past sexual conduct

in certain circumstances. Persons convicted of sex crimes are required to

complete a sex offender treatment program if given a term of post-prison

supervision. Or. Rev. Stat. § 144.102(4)(b)(F). Such programs may

include polygraph testing, id., which may be used to examine the

releasee’s sexual history, see, e.g., State v. Tenbusch, 886 P.2d 1077, 1078

& n.1 (Or. 1994).

CHAVEZ V. ROBINSON 35

could not impose a sanction on the releasee for failure to

participate in the program as required by court order. We are

doubtful that a reasonable director of a sex offender therapy

program and a parole officer are “plainly incompetent” or

“knowingly violate the law,” Malley, 475 U.S. at 341, if they

sanction a releasee in this narrow context. Robinson and

Moore could have reasonably concluded that Chavez’s

statements would not, or could not, be used in a subsequent

criminal proceeding given the deputy district attorney’s

representation that Chavez would be given immunity and the

fact that the state court subsequently issued an order ensuring

that Chavez’s statements could not be used in that manner.

Robinson and Moore’s situation thus differs from the one in

Antelope, where the risk of incrimination was “real and

appreciable” because, in part, the sex offenders’ admissions

of past sex crimes would “likely make their way into the

hands of prosecutors,” 395 F.3d at 1135, and lead “to more

prosecutions and convictions,” id. at 1138; see also id.

(suggesting that a treatment program violates a sex offender’s

evidentiary privilege when it is “an elaborate attempt to avoid

the protections offered by the privilege against compelled

self-incrimination” (quoting McKune, 536 U.S. at 40–41)).

Further, Robinson and Moore could have reasonably

concluded that they were bound to implement a valid court

order. Indeed, government officials may be immune from

liability where they act in reliance on a valid court order. See

Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir.

2013) (holding that prison officials charged with executing

facially valid court orders enjoy absolute immunity from

§ 1983 liability for conduct prescribed by those orders). And

we generally afford immunity to “parole officials for the

‘imposition of parole conditions’ and the ‘execution of parole

revocation procedures,’ tasks integrally related to an official’s

36 CHAVEZ V. ROBINSON

decision to grant or revoke parole.” Swift v. California,

384 F.3d 1184, 1189 (9th Cir. 2004) (quoting Anderson v.

Boyd, 714 F.2d 906, 909 (9th Cir. 1983)). This immunity

applies even where parole officers “impos[e] allegedly

unconstitutional parole conditions.” Thornton v. Brown,

757 F.3d 834, 839–40 (9th Cir. 2013).

But this qualified immunity analysis raises some close

questions. Robinson and Moore did not offer Chavez

immunity (assuming they had the authority to do so) when

they required Chavez to admit to the conduct underlying his

conviction. Under Antelope, state officials may not impose

sanctions on a sex offender for failure to make incriminating

statements as part of a treatment program, where the officials

expressly decline to offer immunity and insist that a sex

offender’s statements can be used in subsequent criminal

proceedings. 395 F.3d at 1139. Rather than decide whether

Antelope clearly established a rule that applies to Robinson

and Moore in this somewhat different context, we deem it

prudent to rely on our holding that Chavez’s Fifth

Amendment claim may not proceed in the absence of use of

a coerced statement in a criminal proceeding, and so we do

not reach the second prong of the qualified immunity

analysis.

III

We next turn to Chavez’s claim that Moore and Robinson

violated his Sixth Amendment rights by denying him counsel

at a critical stage.11 “It is beyond dispute that ‘[t]he Sixth

11

In his SAC, Chavez claims only that Moore and Robinson

“retaliated against [him] for asserting his right to speak with a lawyer in

June, 2010 before responding to the demand that he admit disputed

CHAVEZ V. ROBINSON 37

Amendment safeguards to an accused who faces incarceration

the right to counsel at all critical stages of the criminal

process.’” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (per

curiam) (quoting Iowa v. Tovar, 541 U.S. 77, 80–81 (2004)).

“A critical stage is a ‘trial-like confrontation, in which

potential substantial prejudice to the defendant’s rights

inheres and in which counsel may help avoid that prejudice.’”

United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003)

(quoting Beaty v. Stewart, 303 F.3d 975, 991–92 (9th Cir.

2002)). Chavez raises two theories as to why Robinson and

Moore violated his Sixth Amendment right to counsel when

they denied his request to speak with his lawyer before he

signed the documents admitting prior conduct as part of his

treatment program.

Chavez first argues that Robinson and Moore violated his

Sixth Amendment right to counsel on appeal, which is a

critical stage of a criminal proceeding for purposes of the

Sixth Amendment. See Penson v. Ohio, 488 U.S. 75, 88

(1988). Chavez’s theory comprises multiple steps, and

proceeds as follows. According to Chavez, consultation with

an attorney about whether to appeal is a critical stage of the

proceedings. Second, Chavez claims that if he admitted to

the conduct underlying his conviction, and then prevailed on

allegations that were then pending on appeal, in violation of Chavez’s

Sixth Amendment right to counsel,” but does not argue that Moore and

Robinson’s failure to allow him to speak to counsel at that time violated

his Sixth Amendment right. In his opening brief, however, Chavez does

not mention retaliation, but raises only a Sixth Amendment claim based

on denial of counsel at a critical stage. The defendants do not address this

discrepancy, so we assume that Chavez’s Sixth Amendment claim is

properly before us. See Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.

2010) (“It is well-established that a party can waive waiver implicitly by

failing to assert it.” (cleaned up)).

38 CHAVEZ V. ROBINSON

appeal, any appeal would be futile because he would be re-

convicted on retrial if his admission was not suppressed but

was introduced at a retrial. Therefore, according to Chavez,

consulting with a lawyer regarding whether to make an

admission is analogous to consulting with a lawyer about

whether to withdraw an appeal. And consulting about

withdrawal, he asserts, is substantially the same as consulting

with a lawyer about whether to appeal at all. As a result,

Chavez argues, Robinson and Moore’s refusal to allow him

to consult his attorney before making admissions was in

effect a complete deprivation of counsel at the critical stage

of determining whether to appeal or withdraw an appeal.

This argument fails. First, no precedent supports

Chavez’s claim that he was denied counsel on appeal. There

is no dispute that Chavez was represented by appellate

counsel for his appeal and was not denied representation

“during the appellate court’s actual decisional process.”

Penson, 488 U.S. at 88. Nor does Chavez allege that

Robinson prevented him from communicating with appellate

counsel about withdrawing his appeal outside of the sex

therapy treatment program. Therefore, even assuming that a

decision to withdraw an appeal is a critical stage, Chavez was

not denied access to counsel for that purpose. Nor does any

precedent support Chavez’s argument that his meeting with

Robinson for sex therapy treatment was a critical stage of his

appeal. Any admission made by Chavez in his sex therapy

program could not directly affect his appeal, because it would

not have been part of the trial court record on appeal. And

any admission—at least to the extent it was coerced by threat

of sanctions—would not affect his retrial, because it could be

suppressed in any subsequent criminal proceeding. Turley,

414 U.S. at 78; Garrity, 385 U.S. at 500. Further, our

precedent makes clear that “the Sixth Amendment has no

CHAVEZ V. ROBINSON 39

application to supervised release proceedings,” United States

v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010) (citing

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)), which

further undermines any claim that Chavez had a Sixth

Amendment right to counsel in meetings or treatment

prescribed by his supervised release conditions, cf. Murphy,

465 U.S. at 424 n.3 (probationer “had no federal right to have

an attorney present at the meeting” with his probation officer

where he was asked to make incriminating statements.).

Moreover, the case on which Chavez primarily relies, Roe

v. Flores-Ortega, 528 U.S. 470 (2000), does not establish that

a defendant is entitled to consult with counsel before making

admissions in a sex offender treatment program, or that

making a decision regarding this program requirement

constitutes a critical stage of a criminal proceeding. In

Flores-Ortega, a criminal defendant’s counsel failed to file a

timely notice of appeal, despite telling the defendant she

would do so. Id. at 475. The Supreme Court held that there

was no per se rule that such a failure constituted ineffective

assistance of counsel; rather, ineffective assistance of

appellate counsel due to failure to file a notice of appeal must

be analyzed under the familiar two-prong test from Strickland

v. Washington. Id. at 476–77 (citing Strickland v.

Washington, 466 U.S. 668 (1984)). Applying Strickland, the

Court spelled out the circumstances in which a counsel’s

failure to consult on whether to file a notice of appeal could

constitute deficient performance, as well as the circumstances

in which such deficient performance could be prejudicial to

the defendant. Id. at 477–81. But contrary to Chavez’s

argument, Flores-Ortega does not establish that a defendant

has a right to consult with counsel when deciding whether to

“effectively forfeit” an appeal by making admissions required

by the therapy program; nor does Flores-Ortega address the

40 CHAVEZ V. ROBINSON

particular situation here, where a therapist declined to allow

a sex offender participating in a treatment program to consult

with his appellate counsel. Chavez points to no other case

that clearly establishes a right to counsel in a sex offender

treatment program.

Because no existing precedent establishes that a prisoner

who is prevented from contacting counsel during sex offender

treatment has been denied counsel on appeal, Robinson and

Moore are also entitled to qualified immunity on this claim

under the second prong of the analysis. See al-Kidd, 563 U.S.

at 735.

Chavez’s second theory as to why his Sixth Amendment

rights were violated due to the denial of counsel at a critical

stage also fails. Chavez claims that a criminal defendant is

entitled to counsel during any proceeding that could

jeopardize a potential retrial. According to Chavez, this rule

is clearly established by Cahill v. Rushen, 678 F.2d 791 (9th

Cir. 1982). In Cahill, after a criminal defendant was

convicted at trial, a police captain immediately ordered the

defendant moved from the jail to the sheriff’s office and

interrogated him without giving him Miranda warnings or

offering him an opportunity to speak with his attorney. Id. at

793. The defendant confessed to the crime for which he had

been convicted, and the confession was used at a subsequent

retrial. Id. We held that there was a deprivation of counsel

at a critical stage of a criminal prosecution, because “[w]hen

as here defendant’s right to counsel has attached, any

incriminating statements deliberately elicited by the State

without at least affording defendant the opportunity to consult

with counsel, must be excluded at any subsequent trial on the

charges for which defendant is then under indictment.” Id.

at 795. We explained that this rule was necessary because the

CHAVEZ V. ROBINSON 41

practice of interviewing a criminal defendant after conviction

“easily lends itself to abuse,” and “may often greatly

prejudice a defendant who could otherwise gain an acquittal

upon retrial.” Id. at 794 n.2.

While the rule in Cahill may be applicable here at some

“high level of generality,” al-Kidd, 563 U.S. at 742, the facts

are too dissimilar to clearly establish a rule that Chavez was

entitled to consult with counsel at the sex offender treatment

program. Cahill involved the custodial interrogation of a

defendant taken directly from jail by a police chief who

deliberately elicited a confession for law enforcement

purposes. 678 F.2d at 793. By contrast, a sex offender

treatment program is much less of a “trial-like confrontation,”

Leonti, 326 F.3d at 1117 (citation omitted); it seeks

rehabilitation, and uses confession only as a treatment

strategy.12 Moreover, while cases have discussed this typical

12

Justice Kennedy’s plurality opinion in McKune v. Lile explained

why confession contributes to rehabilitation:

Therapists and correctional officers widely agree that

clinical rehabilitative programs can enable sex

offenders to manage their impulses and in this way

reduce recidivism. See U.S. Dept. of Justice, Nat.

Institute of Corrections, A Practitioner’s Guide to

Treating the Incarcerated Male Sex Offender xiii (1988)

(“[T]he rate of recidivism of treated sex offenders is

fairly consistently estimated to be around 15%,”

whereas the rate of recidivism of untreated offenders

has been estimated to be as high as 80%. “Even if both

of these figures are exaggerated, there would still be a

significant difference between treated and untreated

individuals”). An important component of those

rehabilitation programs requires participants to confront

their past and accept responsibility for their misconduct.

Id., at 73. “Denial is generally regarded as a main

42 CHAVEZ V. ROBINSON

aspect of sex offender treatment programs in the context of

Fifth Amendment rights, see, e.g., Murphy, 465 U.S. at 422;

McKune, 536 U.S. at 30; Antelope, 395 F.3d at 1137, no case

has held that a sex offender is entitled to counsel while

engaging in such treatment. Thus, Cahill does not clearly

establish the right to counsel at a sex offender treatment

program.

In sum, Chavez has not identified any case holding that a

convicted sex offender participating in a treatment program

as a condition of probation or supervised release is entitled to

counsel before complying with the requirement (typical of

such programs) to admit the conduct underlying the

conviction, even if such admission has the potential to

prejudice a potential retrial after a successful appeal. Given

that clearly established law must be “particularized to the

facts of the case,” White, 137 S. Ct. at 552, we cannot say that

Robinson and Moore were “plainly incompetent” or

“knowingly violate[d] the law,” Malley, 475 U.S. at 341.

Accordingly, Robinson and Moore are entitled to qualified

impediment to successful therapy,” and “[t]herapists

depend on offenders’ truthful descriptions of events

leading to past offences in order to determine which

behaviours need to be targeted in therapy.” H.

Barbaree, Denial and Minimization Among Sex

Offenders: Assessment and Treatment Outcome,

3 Forum on Corrections Research, No. 4, p. 30 (1991).

Research indicates that offenders who deny all

allegations of sexual abuse are three times more likely

to fail in treatment than those who admit even partial

complicity. See B. Maletzky & K. McGovern, Treating

the Sexual Offender 253–255 (1991).

536 U.S. at 33.

CHAVEZ V. ROBINSON 43

immunity on this claim.13 We therefore affirm the dismissal

of Chavez’s right-to-counsel claim.

IV

Finally, we turn to Chavez’s claim that Robinson and

Moore violated his First Amendment right to bring a civil

lawsuit by terminating him from the sex offender treatment

program and revoking his supervision in retaliation for his

filing a lawsuit against them. According to Chavez, this right

is clearly established by Rhodes v. Robinson, 408 F.3d 559

(9th Cir. 2005), and related cases establishing that prison

officials cannot punish a prisoner for filing grievances or

lawsuits, see, e.g., Brodheim v. Cry, 584 F.3d 1262, 1269–73

(9th Cir. 2009); Rizzo v. Dawson, 778 F.2d 527, 531–32 (9th

Cir. 1985). In Rhodes, prison officials brought a motion to

dismiss a prisoner’s § 1983 action, alleging that they

retaliated against him for filing inmate grievances by, among

other things, destroying and confiscating his personal

property. 408 F.3d at 563. The prison officials argued that

they were entitled to qualified immunity because it was not

clearly established that a prisoner has a constitutional right to

be free from retaliatory conduct that does not chill or deter

the exercise of the prisoner’s constitutional rights, and they

argued that the prisoner’s repeated filings, including the

§ 1983 action, showed that the prisoner’s First Amendment

rights had not been chilled. Id. at 566.

13

Because we decide that it was not clearly established that Chavez

had a right to counsel at his sex offender treatment program, we need not

address Moore’s additional argument that she did not violate Chavez’s

right to counsel because Chavez made the demand only to Robinson.

44 CHAVEZ V. ROBINSON

We held that in the prison context, the “prohibition

against retaliatory punishment is ‘clearly established law’ in

the Ninth Circuit for qualified immunity purposes.” Id.

at 569 (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.

1995)). We explained that the First Amendment right to file

prison grievances and pursue civil rights litigation in the

courts is fundamentally important because “[w]ithout those

bedrock constitutional guarantees, inmates would be left with

no viable mechanism to remedy prison injustices.” Id. at 567.

Therefore, a prisoner can make a viable claim of First

Amendment retaliation by alleging five basic elements:

“(1) An assertion that a state actor took some adverse action

against an inmate (2) because of (3) that prisoner’s protected

conduct, and that such action (4) chilled the inmate’s exercise

of his First Amendment rights, and (5) the action did not

reasonably advance a legitimate correctional goal.” Id.

at 567–68 (footnote omitted). The prisoner does not have to

allege a “total chilling of his First Amendment rights to file

grievances and to pursue civil rights litigation in order to

perfect a retaliation claim.” Id. at 568 (emphasis in original).

Rhodes concluded that at the motion to dismiss stage, the

prisoner had adequately satisfied the pleading requirements,

and therefore the officers were not entitled to qualified

immunity. Id. at 569–70.

There are significant distinctions between Rhodes and the

facts alleged in the SAC. Unlike in Rhodes, the SAC in this

case does not present a retaliatory action in a prison context,

but instead alleges that Chavez is a releasee attending a sex

offender treatment program. Chavez cites no case holding

that a person providing rehabilitation therapy for a supervised

releasee may not discharge the releasee from the program in

response to a lawsuit. It is not “arbitrary and irrational” for

a sex offender treatment program director, like Robinson, to

CHAVEZ V. ROBINSON 45

conclude that when a participant in a therapy program is

adversarial, repeatedly refuses to participate in the threshold

requirement for admission, and brings a legal action against

the therapist, no therapeutic relationship could be developed,

and therefore such a program would be ineffective in

promoting a Chavez’s rehabilitation. See Brodheim, 584 F.3d

at 1272. Under these circumstances, Robinson could

reasonably conclude he had a “legitimate correctional goal”

in dismissing Chavez from the sex offender treatment

program. Rhodes, 408 F.3d at 567–68. Thus, in the “specific

context of th[is] case,” Keates, 883 F.3d at 1235 (citation

omitted), nothing would have given Robinson “fair notice”

that his “conduct was unlawful,” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018). Accordingly, Robinson is entitled to

qualified immunity.

For the same reason, we conclude that Moore is entitled

to qualified immunity. Once Robinson terminated Chavez

from the sex offender treatment program, Chavez was no

longer in compliance with the court-ordered condition of

probation and supervised release. Although Chavez argues

that Moore had “ready alternatives” to giving him a jail

sanction that would have achieved the same penological goal

(such as transferring him to a different sex offender treatment

program), see Shaw v. Murphy, 532 U.S. 223, 228 (2001),

there is no clearly established law precluding a probation

officer from imposing a sanction under these circumstances.

AFFIRMED.

46 CHAVEZ V. ROBINSON

BERZON, Circuit Judge, concurring in part in the judgment

and dissenting in part:

The Fifth Amendment provides that “[n]o person . . . shall

be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. Daniel Chavez was

incarcerated for declining to admit to criminal conduct during

therapy prescribed as a condition of his parole. An appeal of

his conviction was pending at the time, and his concern was

that if his appeal succeeded—which it did—any statement he

made about the crime for which he was convicted could be

used against him in a retrial.

To me, it takes no complex analysis to conclude that

Chavez was “compelled in [a] criminal case” to be a witness

against himself and imprisoned because he would not be,

violating his Fifth Amendment rights and giving rise to a

cause of action under 42 U.S.C. § 1983. The applicable

precedents have taken some twists and turns, but, after

working through them, I am convinced that the

straightforward conclusion is the correct one: On the record

viewed most favorably to Chavez, Robinson and Moore

violated a well-established prohibition on incarcerating a

parolee for failing to incriminate himself, recognized in

United States v. Antelope, 395 F.3d 1128, 1139 (9th Cir.

2005); Chavez may sue for damages under 42 U.S.C. § 1983

for that violation; and Chavez’s Fifth and Fourteenth

Amendment claim is not barred by qualified immunity. As

the majority decides otherwise, I dissent from the majority’s

Fifth Amendment § 1983 holding.

I also write separately to address the majority’s reasoning

on Chavez’s Sixth Amendment claim. To the extent the

majority reaches the merits (which is not clear), I disagree

CHAVEZ V. ROBINSON 47

with the majority’s assertion that Chavez’s Sixth Amendment

claim fails because he had access to counsel at other stages of

his appeal and because the Sixth Amendment does not apply

to supervised release proceedings. These arguments

mischaracterize Chavez’s claim: that he had a right to consult

with counsel about waiving his Fifth Amendment privilege

while his appeal was still pending. I agree, however, that

there is no clearly established law on whether Chavez had a

right to consult with counsel under the circumstances, and so

concur in holding that Chavez’s Sixth Amendment claim is

barred by qualified immunity.1

I. Self-Incrimination

Again, the self-incrimination language of the Fifth

Amendment (which is incorporated to the states via the

Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6

(1964)), guarantees that “[n]o person . . . shall be compelled

in any criminal case to be a witness against himself.” U.S.

Const. amend. V. “The constitutional privilege against self-

incrimination has two primary interrelated facets: The

Government may not use compulsion to elicit self-

incriminating statements, and the Government may not

permit the use in a criminal trial of self-incriminating

statements elicited by compulsion.” Murphy v. Waterfront

Comm’n of N.Y. Harbor, 378 U.S. 52, 57 n.6 (1964) (citation

omitted), overruled on other grounds by United States v.

Balsys, 524 U.S. 666, 684, 688 & n.11 (1998) (abrogating

Waterfront Commission to the extent it relied on historical

analysis for a more expansive interpretation of the Self-

1

I concur in the majority’s resolution of Chavez’s First Amendment

§ 1983 claim.

48 CHAVEZ V. ROBINSON

Incrimination Clause).2 The second facet of this guarantee is

protected by a set of procedural safeguards ensuring that,

when an individual does give self-incriminating testimony in

non-criminal proceedings in response to government

compulsion, that testimony may not be admitted in any

related criminal proceedings. See Chavez v. Martinez,

538 U.S. 760, 770–71 (2003) (plurality opinion). As the

majority ably demonstrates, our circuit’s interpretation of

Chavez does not allow for a cause of action under § 1983

where an individual gives self-incriminating statements

outside of a criminal proceeding. See Aguilera v. Baca,

510 F.3d 1161, 1174 n.9 (9th Cir. 2007).

But this rule does not control where the privilege is

invoked, no statement is given, and the individual suffers

punishment as a consequence—here, the classic punishment

of incarceration. First, long-standing Supreme Court law

makes clear that the compulsion itself is of constitutional

significance. See Lefkowitz v. Cunningham, 431 U.S. 801,

806 (1977). Second, a case from this court nearly identical to

this one, United States v. Antelope, holds that the Fifth

Amendment was violated by compulsion, although there was

no use of a compelled statement in a criminal proceeding.

See 395 F.3d at 1134–39. Third, the actual holding of the

Chavez case has no application in these circumstances, and

the language that the majority relies upon in the Chavez

opinions as reaching the present circumstances is not binding.

See infra, pp. 54–56; Tekoh v. County of Los Angeles,

2

Waterfront Commission says “criminal trial,” but the amendment

itself says “criminal case.” Consistent with the text, case law has made

clear that the self-incrimination protection applies to aspects of criminal

proceedings other than trial. See Stoot v. City of Everett, 582 F.3d 910,

925 (9th Cir. 2009).

CHAVEZ V. ROBINSON 49

985 F.3d 713, 722 (9th Cir. 2021). And finally, no binding

case law of the Supreme Court or of this court bars a § 1983

cause of action seeking damages for the revocation of

supervised release and incarceration as violative of the Fifth

Amendment’s prohibition against compulsion, and both

Supreme Court case law and policy considerations support

such a cause of action.

a. The Scope of the Privilege

Chavez was told that if he did not admit to the criminal

conduct underlying his conviction during prescribed therapy

sessions, his supervised release would be revoked. He

refused to incriminate himself and was immediately jailed,

three times. The first two times this happened, he was not

offered immunity for any retrial or other future criminal

proceedings. As Chavez was detained immediately after he

refused to incriminate himself, see infra p. 61 n.3, he had no

opportunity to seek immunity from a judge. So: Chavez was

punished—compelled (by jail time) for refusing to be a

witness against himself (by admitting to the underlying

criminal conduct), with his criminal case not concluded and

a retrial possible.

At its most fundamental, the Fifth Amendment

not only permits a person to refuse to testify

against himself at a criminal trial in which he

is a defendant, but also “privileges him not to

answer official questions put to him in any

other proceeding, civil or criminal, formal or

informal, where the answers might

incriminate him in future criminal

proceedings.”

50 CHAVEZ V. ROBINSON

Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). This right is

meaningless if the state may incarcerate individuals for

refusing to incriminate themselves. The Supreme Court has

long recognized that the Fifth Amendment, incorporated to

the states via the Fourteenth Amendment, “secures . . . the

right of a person to remain silent unless he chooses to speak

in the unfettered exercise of his own will, and to suffer no

penalty . . . for such silence.” Malloy, 378 U.S. at 8

(emphasis added). Governments therefore may not “penalize

assertion of the constitutional privilege against compelled

self-incrimination by imposing sanctions to compel testimony

which has not been immunized,” Cunningham, 431 U.S. at

806, nor does the Fifth Amendment permit law enforcement

officers to use threats of harsh treatment to compel self-

incrimination by criminal defendants, see Tobias v. Arteaga,

996 F.3d 571, 582 (2021).

Threatened imprisonment is a quintessential “penalt[y]

capable of forcing the self-incrimination which the

Amendment forbids.” Cunningham, 431 U.S. at 806. The

protection guaranteed by the Self-Incrimination Clause

therefore “forbids the States to resort to imprisonment . . . to

compel [someone] to answer questions that might incriminate

him.” Malloy, 378 U.S. at 8. Likewise, “there are no

circumstances in which law enforcement officers may suggest

that a suspect’s exercise of the right to remain silent may

result in harsher treatment.” Tobias, 996 F.3d at 582 (quoting

United States v. Harrison, 34 F.3d 886, 891–92 (9th Cir.

1994)). This logic applies with equal force in the probation

context: “[I]f the state, either expressly or by implication,

asserts that invocation of the privilege would lead to

revocation of probation, it would have created the classic

CHAVEZ V. ROBINSON 51

penalty situation.” Murphy, 465 U.S. at 435; see Antelope,

395 F.3d at 1138 n.4.

Nor is the prohibition on penalizing the refusal to self-

incriminate limited to threats of incarceration. Uniformed

Sanitation Men Ass’n v. Commissioner of Sanitation,

392 U.S. 280 (1968), held that the state of New York violated

the Fifth Amendment when it terminated public employees

for “invoking and refusing to waive their constitutional right

against self-incrimination.” Id. at 283; accord Garrity v. New

Jersey, 385 U.S. 493, 497 (1967). Turley likewise held that

architects suffered constitutional injury when they were

disqualified from contracting with the state as punishment for

refusing to self-incriminate. See 414 U.S. at 82–83. And

Cunningham recognized that requiring an official in a state

political party to relinquish his public office constituted

unconstitutional compulsion. See 431 U.S. at 807.

In these latter cases, “the attempt to override the

witnesses’ privilege proved unsuccessful,” and no coerced

statement was ever made or admitted. Murphy, 465 U.S.

at 434. Nonetheless, “the Court ruled that the State could not

constitutionally make good on its prior threat” of penalty. Id.

It was the coercive acts themselves—the acts of

compulsion—that triggered protection under the Fifth

Amendment. See Cunningham, 431 U.S. at 803–04; Turley,

414 U.S. at 76; Uniformed Sanitation Men, 392 U.S. at 283.

So these cases demonstrate that the constitutional prohibition

against “compel[ling] a [person] to speak about his past

crimes despite a desire to remain silent,” McKune v. Lile,

536 U.S. 24, 36 (2002) (plurality opinion), forbids acts of

compulsion—and most especially incarceration—where, as

here, there is a pending criminal proceeding and no promise

52 CHAVEZ V. ROBINSON

that any statements made will not be used during that

proceeding.

We held exactly that in United States v. Antelope.

Antelope considered near-identical facts to this one: A

plaintiff released from prison on supervised release was

required, as a condition of his mandated treatment program,

to detail his sexual history without any assurance of

immunity. 395 F.3d at 1130. He repeatedly refused; in

response, the government revoked his supervised release and

incarcerated him. Id. On direct appeal of the revocation,

Antelope asserted that the government’s conduct violated his

right against compelled self-incrimination. Id. at 1131–32.

We agreed, holding that Antelope had established a Fifth

Amendment violation by showing that “(1) that the testimony

desired by the government carried the risk of incrimination,

and (2) that the penalty he suffered”—incarceration—

“amounted to compulsion.” Id. at 1134 (citations omitted).

Notably, as here, Antelope did not make any incriminating

statement, and so the case did not concern the invocation of

an evidentiary privilege during a criminal proceeding.

For its holding, Antelope relied heavily on the Supreme

Court’s reasoning in McKune v. Lile, which Antelope read as

prohibiting the government from revoking supervised release

as a result of a defendant’s “refusal to disclose his sexual

history without receiving immunity from prosecution.” Id.

at 1139; see id. at 1135–39. McKune concerned a § 1983

challenge to a sexual abuse treatment program administered

in a Kansas prison. 536 U.S. at 30–31 (plurality opinion).

Participants in the program were required to “detail[] all prior

sexual activities”; providing this information was not

immunized. Id. at 30, 34. Participants who refused to

participate in the program had their privileges reduced,

CHAVEZ V. ROBINSON 53

received curtailed “visitation rights, earnings, work

opportunities, . . . and other privileges,” and were advised

they would be transferred to a higher-security unit. Id.

at 30–31.

A fractured Court held that the program did not violate

the Fifth Amendment, but only on the ground that the

consequences of silence—“transfer to another prison where

television sets are not placed in each inmate’s cell, where

exercise facilities are not readily available, and where work

and wage opportunities are more limited”—were not severe

enough to rise to the level of compulsion. Id. at 36; see id. at

48–49 (O’Connor, J., concurring in the judgment). There was

no majority opinion regarding the standard applicable when

evaluating what conduct constitutes compulsion. See id.

at 48. But Justice Kennedy’s plurality opinion, which

proposed the most demanding standard, acknowledged that

the outcome might be different if the decision not to

participate in the treatment program resulted in a longer

prison sentence. See id. at 38 (plurality opinion). And Justice

O’Connor’s concurrence, which Antelope held is controlling,

see 395 F.3d at 1133 n.1, likewise noted that “longer

incarceration” imposes a penalty “far greater than those we

have already held to constitute unconstitutional compulsion,”

McKune, 536 U.S. at 52 (O’Connor, J., concurring in the

judgment).

As Antelope held, Chavez v. Martinez is not to the

contrary. See 395 F.3d at 1140. Two opinions in Chavez,

together subscribed to by a majority of the justices,

distinguish between core Fifth Amendment rights and

“prophylactic” protections of those rights. See 538 U.S.

at 770 (plurality opinion); see also id. at 777–78 (Souter, J.,

concurring in the judgment). But that case did not “unseat

54 CHAVEZ V. ROBINSON

decades of Supreme Court law” holding that penalties for

invoking the privilege against self-incrimination violate the

Fifth Amendment. Antelope, 395 F.3d at 1140. To the

contrary, Justice Thomas’s plurality opinion in Chavez

recognized that “no ‘penalty’ may ever be imposed on

someone who exercises his core Fifth Amendment right not

to be a ‘witness’ against himself in a criminal case,” while

drawing on the Supreme Court’s line of penalty cases.

538 U.S. at 768–69 (plurality opinion). And Justice Souter

recognized that the holding of those penalty cases was

necessary “to protect the basic right” against self-

incrimination. Id. at 777–78 (Souter, J., concurring in the

judgment). Rather than limit the scope of the Fifth

Amendment’s protections, Chavez concerned the scope of

§ 1983’s affirmative action for damages arising out of a

violation of those protections. See Antelope, 395 F.3d

at 1141. It is to this question that I now turn.

b. The Scope of § 1983 Liability

The majority maintains that, despite the square holding of

Antelope that a parole revocation and imprisonment for

refusing to make non-immunized incriminatory statements is

impermissible under the Fifth Amendment, Chavez v.

Martinez does not permit an affirmative action in damages for

that impermissible compulsion. I disagree.

i.

First, there is no controlling opinion in Chavez regarding

whether § 1983 actions are available in such circumstances.

This circuit recently held that “none of the six opinions [in

Chavez] provides a binding rationale,” and specifically that

“Justice Thomas’s plurality . . . cannot control.” Tekoh,

CHAVEZ V. ROBINSON 55

985 F.3d at 722. In so holding, Tekoh applied the analysis set

out in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016)

(en banc), for determining what rule we apply when faced

with “fractured Supreme Court decision[s],” id. at 1021–22.

Under Davis, we are bound by such decisions only to the

extent that “a majority of the Justices agree upon a single

underlying rationale and one opinion can reasonably be

described as a logical subset of the other.” Id. at 1022.

Where no such “common denominator of the Court’s

reasoning exists, we are bound only by the specific result.”

Id. at 1028 (internal quotation marks omitted).

In Chavez, Justice Thomas’s narrower view of the scope

of the Fifth Amendment reflected a “rationale significantly

broader than those of the concurring Justices.” Tekoh,

985 F.3d at 722. Justice Thomas broadly maintained that

“violations of ‘judicially crafted prophylactic rules do not

violate the constitutional rights of any person’ and therefore

‘cannot be grounds for a § 1983 action.’” Id. at 721 (quoting

Chavez, 538 U.S. at 772 (plurality opinion)). Justice Souter,

by contrast, agreed that civil liability was inappropriate in

Chavez, but he would not have held, as Justice Thomas did,

that enforcement of the right against self-incrimination was

limited to evidentiary exclusion. Chavez, 538 U.S. at 777–78

(Souter, J., concurring in the judgment).

Rather, Justice Souter explained that the Supreme Court’s

penalty cases “express[] a judgment that the [Fifth

Amendment’s] core guarantee, or the judicial capacity to

protect it, would be placed at some risk in the absence of [the]

complementary protection[s]” those cases recognized. Id.

at 778. Although he noted that recognizing a § 1983 cause of

action absent the “courtroom use of a criminal defendant’s

compelled, self-incriminating testimony” would “be well

56 CHAVEZ V. ROBINSON

outside the core of Fifth Amendment protection,” Justice

Souter rejected the plurality’s position that “that alone” was

“a sufficient reason to reject Martinez’s claim,” id. at 777,

and concluded only that, in the Chavez case before the

court—in which the Fifth Amendment violation consisted of

“questioning alone”—Martinez could not “make the

‘powerful showing,’ subject to a realistic assessment of costs

and risks, necessary to expand protection of the privilege

against compelled self-incrimination to the point of” civil

liability, id. at 777–78 (quoting Miranda v. Arizona, 384 U.S.

436, 515, 517 (1966) (Harlan, J., dissenting)).

In Justice Souter’s view, then, the availability of a § 1983

claim depends on whether such a rule is “necessary in aid of

the basic guarantee” of the Fifth Amendment privilege. Id.

at 779. And, contrary to Justice Thomas’s assertion that a

violation of the Fifth Amendment absent courtroom use of

inadmissible statements could never be the basis for a § 1983

claim, Justice Souter did not suggest that such a claim would

be unavailable where there is an “imposition[] of[ a] penalt[y]

that would undermine the right to immunity.” Id. at 778

(citing Uniformed Sanitation Men, 392 U.S. at 284–85;

Turley, 414 U.S. at 77–79; Cunningham, 431 U.S. at 804–06;

McKune, 536 U.S. at 35 (plurality opinion)). Thus, as in

Tekoh, there is no controlling opinion in Chavez regarding the

availability of § 1983 under the present circumstances. See

Tekoh, 985 F.3d at 722.

To be sure, Antelope recognized that, after Chavez, it is

sometimes appropriate to distinguish “defensive” Fifth

Amendment challenges from an affirmative action brought

under § 1983. See Antelope, 395 F.3d at 1141. But Antelope

did not resolve whether § 1983 liability would attach to a

claim arising out of the constitutional violation recognized in

CHAVEZ V. ROBINSON 57

that case. The opinion noted only that the government

“might” prevail in such a posture; it did not hold that it

would. Id. There is therefore no controlling precedent, either

from the Supreme Court or this circuit, directly resolving the

§ 1983 availability question before us now.

The majority recognizes Tekoh’s holding that “none of the

six separate opinions in Chavez ‘provides a binding

rationale,’” Maj. Op. at 21 (quoting Tekoh, 985 F.3d at 722),

yet it resists the conclusion that follows—that “the broad

principles in Justice Thomas’s opinion are not binding,”

Tekoh, 985 F.3d at 722. Instead, the majority relies on cases

which it maintains have read Chavez to stand for the

proposition 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.” Aguilera,

510 F.3d at 1173 (quoting Chavez, 538 U.S. at 769). The

cases the majority cites, however, predate our analysis in

Tekoh, which held conclusively that “none of the six opinions

[in Chavez] provides a binding rationale.” Tekoh, 985 F.3d at

722. Indeed, the majority’s cases did not analyze Chavez

under Davis or Marks v. United States, 430 U.S. 188 (1977),

the Supreme Court case Davis interpreted. Tekoh undertook

that analysis for the first time in our circuit, rendering any

reliance on Justice Thomas’s plurality opinion as binding no

longer good law.

Moreover, none of the cases cited by the majority

addressed the set of circumstances at issue here, in which the

plaintiff invoked his Fifth Amendment privilege during the

pendency of a criminal proceeding and was punished for

doing so. In Aguilera, law enforcement deputies were

threatened with “re-assignment from field to desk duty” for

declining to answer questions about possible misconduct.

58 CHAVEZ V. ROBINSON

510 F.3d at 1173; see id. at 1172. We dismissed the deputies’

§ 1983 claim in large part on the ground that the plaintiffs had

failed to show compulsion. See id. at 1173. We further

stated that “the deputies’ Fifth Amendment claim . . . fails

because the deputies were never charged with a crime, and no

incriminating use of their statements has ever been made.”

Id. Unlike the deputies in Aguilera, Chavez was charged with

a crime and was in the midst of an active appeal. Aguilera is

therefore inapposite.

The majority’s reliance on Stoot v. City of Everett,

582 F.3d 910 (9th Cir. 2009), is misplaced as well. There, we

addressed a § 1983 claim for a violation of the plaintiff’s

Fifth Amendment privilege after a state court had suppressed

the plaintiff’s confession as “the product of impermissible

coercion.” Id. at 917. Citing Chavez, we noted that “coercive

police questioning does not violate the Fifth Amendment,

absent use of the statements in a criminal case.” Id. at 923.

But, like Chavez itself, Stoot involved impermissible

“questioning alone.” Chavez, 538 U.S. at 777 (Souter, J.,

concurring in the judgment). We had no occasion to decide

in Stoot whether a § 1983 cause of action exists when a

plaintiff is actually punished for invoking his Fifth

Amendment privilege. Nor did we address that question in

United States v. Hulen, 879 F.3d 1015 (9th Cir. 2018), which

assessed whether a proceeding to revoke supervised release

constitutes a criminal case, not the imposition of punishment

for the invocation of the Fifth Amendment privilege, id.

at 1017–21.

Once one considers only the “specific result” in Chavez

as precedential, see Tekoh, 985 F.3d at 722 (quoting Davis,

825 F.3d at 1028), the majority’s holding loses any tether to

the Fifth Amendment or to § 1983 jurisprudence. The

CHAVEZ V. ROBINSON 59

“specific result” in Chavez does not govern this case because,

unlike Daniel Chavez here, the plaintiff in Chavez was never

charged with a crime, nor was he penalized for declining to

incriminate himself. See 538 U.S. at 764. And, as my earlier

discussion indicates, incarcerating the petitioner here for

refusing to incriminate himself while his direct appeal was

pending violates long-standing precedent concerning the

scope of the Fifth Amendment’s protections against

compelling individuals to incriminate themselves, whether

one terms some of those protections “prophylactic” and

others “core” or not. As in Antelope, “whether we describe

[the] decision as arising out of a ‘prophylactic’ or

‘constitutional’ rule, the same result obtains: [Chavez]

followed the appropriate course of action by refusing to

answer the sexual history question until he was assured that

his answers would be protected by immunity.” 395 F.3d at

1141.

ii.

As neither Chavez nor Antelope squarely decides whether

§ 1983 liability attaches to a scenario in which an individual

has suffered a coercive penalty—here, incarceration—for

refusing to incriminate himself, we turn to McKune v. Lile, in

which the Supreme Court considered an almost identical

question. As discussed supra, McKune and this case share

key facts. Like the plaintiff in McKune, Chavez was required

to share details of his sexual history as part of a court-

imposed sexual abuse treatment program and faced adverse

consequences for refusing to do so. But unlike the plaintiffs

in McKune, who were already incarcerated and faced a

penalty of reduced prison privileges and transfer to a higher-

security facility, 536 U.S. at 31 (plurality opinion), Chavez,

who entered his treatment program on supervised release, was

60 CHAVEZ V. ROBINSON

immediately incarcerated for declining to share those details.

Put simply, Chavez was jailed for refusing to incriminate

himself. So, while McKune held that no § 1983 action was

available to the plaintiffs because the relevant penalties were

not severe enough to rise to the level of compulsion, id. at 36;

see id. at 48–49 (O’Connor, J., concurring in the judgment),

the penalty faced by Chavez in this case—incarceration—is

precisely the type all nine justices in McKune indicated would

amount to impermissible compulsion. See id.

Crucially, no opinion in McKune intimated that the

plaintiff’s action under § 1983 for violation of his Fifth

Amendment self-incrimination privilege failed because, as

here, no incriminating statements were made and so no

incriminating statements were introduced in any criminal

proceeding. The alleged harm suffered by the plaintiff in

McKune was a penalty for his silence, not adverse

consequences at trial; the § 1983 suit failed because there was

no compulsion for Fifth Amendment purposes, not because

no incriminating statement was sought to be introduced at

trial. McKune therefore is fully consistent with holding that

a § 1983 cause of action is available to Chavez here.

Moreover, this case decidedly does not present the danger

identified in Justice Souter’s Chavez concurrence that, if we

were to recognize possible liability, § 1983 would in the

future apply “in every instance of interrogation producing a

statement inadmissible under Fifth or Fourteenth Amendment

principles.” 538 U.S. at 778 (Souter, J., concurring in the

judgment). At the end of the day, the plaintiff in Chavez

suffered no constitutional injury: He was never charged with

a crime, id. at 764 (plurality opinion), and although his

medical condition when questioned by law enforcement may

have made the interrogation coercive, he was neither

CHAVEZ V. ROBINSON 61

penalized nor threatened with a penalty for refusing to self-

incriminate, nor was he harmed by the admission of

incriminating evidence at trial. Even if recognizing a cause

of action in cases like Chavez would “offer[] no limiting

principle” to civil liability for alleged Fifth Amendment

cases, id. at 779 (Souter, J., concurring), this is not such a

case. Here, unlike in Chavez, the plaintiff was the subject of

an ongoing criminal appeal, and was actually incarcerated for

declining to incriminate himself. Recognizing a § 1983 cause

of action under these circumstances would not expose the

government to liability “in every instance” in which an

involuntary confession is obtained. Id. at 778. Rather, under

the logic articulated in Justice Souter’s concurrence, Chavez

has made a “powerful showing,” that his “core guarantee, or

the judicial capacity to protect it,” was violated. Id. at 778.3

3

The majority asserts that Chavez “could have sought protection from

government sanctions in other ways,” such as by demanding immunity

before making any incriminating statements or by appealing the

revocation of his supervised release. Maj. Op. at 29 & n.8. This suggestion

is belied by the record. Chavez explained in exhibits to his original

complaint that the moment he refused to incriminate himself, he “was

immediately apprehended, handcuffed and taken to jail,” where he was

“detained without bail,” and he relied on that assertion in his opening brief

on appeal. The majority maintains that this allegation should be ignored

because, it contends, Chavez did not reattach these exhibits to his Second

Amended Complaint. Id. at 31 n.8. But the district court repeatedly cited

the docket entry containing the exhibits to the original complaint in its

order dismissing Chavez’s Second Amended Complaint. In particular, the

district court considered the “Violation and Structured Sanction Reporting

Form,” filled out by Moore with regard to Chavez’s third incarceration.

That form establishes that Chavez’s “[c]ustody” began on March 10—the

date he refused to participate in his therapy—even though the sanction

was not officially imposed until March 22, presumably after a hearing

before the State Board of Parole and Post-Prison Supervision. So, these

62 CHAVEZ V. ROBINSON

Thus, even though, as we recognized in Antelope, the “scope

of the Fifth Amendment’s efficacy is narrower when used as

a sword in a civil suit than when used as a shield against

criminal prosecution,” 395 F.3d at 1141, this case comes

within that scope.

In sum, defendants Robinson and Moore violated

Chavez’s “right . . . to remain silent unless he chooses to

speak in the unfettered exercise of his own will, and to suffer

no penalty . . . for such silence.” Malloy, 378 U.S. at 8.

Recognizing a cause of action under § 1983 for this conduct

would not impermissibly expand civil liability beyond that

needed to preserve a meaningful Fifth Amendment protection

where (1) there is a pending criminal proceeding as to which

the compelled statements may be pertinent; (2) there was no

assurance of immunity in that proceeding and no opportunity

to obtain that assurance; and (3) the plaintiff invoked his Fifth

Amendment privilege and was actually imprisoned. In these

narrow circumstances, I would hold that Chavez has stated a

claim for damages under § 1983.

c. Qualified Immunity

Once it is established that Chavez has a cause of action

under § 1983, it is clear that his claim is not barred by

qualified immunity: Antelope “clearly established” the

constitutional right that Chavez alleges was violated.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Again, Antelope

held that “revok[ing] . . . supervised release as a result of [a

documents show that, at best, the alternatives suggested by the majority

could only have limited—not eliminated—the period of Chavez’s renewed

incarceration.

CHAVEZ V. ROBINSON 63

criminal defendant’s] refusal to disclose his sexual history

without receiving immunity from prosecution . . . violate[s]

his Fifth Amendment right against self-incrimination.”

395 F.3d at 1139; see also Murphy, 465 U.S. at 435. That is

precisely what happened here. Chavez and was told to

“admit or go to jail.” When he declined to give details of his

sexual history, he was, as promised, sent to jail. He was not

offered immunity until after his second jail sanction, and he

had until then no realistic opportunity to seek it. Any

“representation that Chavez would be given immunity” prior

to that point, Maj. Op. at 35 (emphasis added), is irrelevant;

at the time he invoked his Fifth Amendment rights, Chavez

had neither been offered nor “receiv[ed] immunity from

prosecution,” Antelope, 395 F.3d at 1139. As Antelope’s

holding directly controls, there is “clearly established law

[that is] ‘particularized’ to the facts of the case.” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). I would

therefore hold that Chavez’s Fifth Amendment claim may

proceed.

II. Right to Counsel

With respect to Chavez’s Sixth Amendment claim, it is

not altogether clear whether the majority has ruled only that

the claim is barred by qualified immunity or has instead

reached the merits of the Sixth Amendment issue. To the

extent the majority decides this question only on the grounds

of qualified immunity, I agree that Chavez’s Sixth

Amendment claim (incorporated to the states via the

Fourteenth Amendment, Douglas v. California, 372 U.S. 353,

356–57 (1963)), is barred by qualified immunity, because it

remains an open question whether Chavez was denied access

to counsel at a “critical stage” of his case. But to the extent

64 CHAVEZ V. ROBINSON

that the majority indicates Chavez was not “denied counsel

on appeal” because he had access to counsel at other stages

of his appeal or because the Sixth Amendment does not apply

to supervised release proceedings, Maj. Op. at 38–40, the

majority misconstrues the nature of Chavez’s claim and of the

Sixth Amendment’s protections. I would therefore affirm on

the Sixth Amendment issue only, and explicitly, on the

ground that Chavez has not alleged a violation of a clearly

established constitutional rule.

Chavez asserts that Robinson and Moore violated his right

to counsel by refusing to allow him to consult with his

attorney when he was forced to decide whether to admit to his

crimes as a part of his treatment program. Chavez contends

that, because defendants forced him to “admit or go to jail,”

and admitting to the conduct underlying his convictions

would have decimated his chances of winning a retrial,

making it “pointless to pursue an appeal,” he was effectively

deprived of his right to be represented at a critical stage of his

appeal—the decision whether to continue or to abandon his

appeal.

“[T]he right to be represented by counsel is among the

most fundamental of rights.” Penson v. Ohio, 488 U.S. 75,

84 (1988). This right “applies at all critical stages of

prosecution,” United States v. Rice, 776 F.3d 1021, 1024 (9th

Cir. 2015) (citing Marshall v. Rodgers, 569 U.S. 58, 62

(2013) (per curiam)), including on appeal, see Douglas,

372 U.S. at 356–57. The majority nevertheless appears to

reject Chavez’s Sixth Amendment claim on the grounds that

he had counsel “during the appellate court’s actual decisional

process,” Maj. Op. at 38 (quoting Penson, 488 U.S. at 88),

and that he was not directly denied access to counsel for the

CHAVEZ V. ROBINSON 65

purpose of deciding “outside of the sex treatment therapy

program” whether to withdraw his appeal, id.

These analyses misunderstand both our Sixth Amendment

case law and Chavez’s claim. To start, Chavez’s claim is that

he was denied the right to consult with his counsel at a

particularly critical moment—when Robinson and Moore

demanded that he waive his Fifth Amendment privilege and

make incriminating admissions regarding the conduct

underlying his convictions. It is immaterial to that claim that

he had access to counsel at other points during his appeal.

The question, rather, is whether Chavez was denied counsel

at a “critical stage” of prosecution—any step of a criminal

proceeding “that h[olds] significant consequences for the

accused.” Bell v. Cone, 535 U.S. 685, 695–96 (2002).

That Chavez was represented “during the appellate

court’s actual decisional process,” Penson, 488 U.S. at 88, is

not dispositive of that question. The right to counsel applies

“at any stage of the prosecution, formal or informal, in court

or out, where counsel’s absence might derogate from the

accused’s right to a fair trial.” United States v. Hamilton,

391 F.3d 1066, 1070 (9th Cir. 2004) (quoting United States

v. Wade, 388 U.S. 218, 226 (1967)). Both the Supreme Court

and this Circuit have faithfully applied this principle to

various discrete phases of criminal proceedings, holding inter

alia that a defendant’s Sixth Amendment rights are

implicated when he is denied access to counsel: during

overnight recess, Geders v. United States, 425 U.S. 80, 90–91

(1976); during jury deliberations, Musladin v. Lamarque,

555 F.3d 830, 835, 842 (9th Cir. 2009); and at closing

argument, Herring v. New York, 422 U.S. 853, 864–65

(1975); see also Missouri v. Frye, 566 U.S. 134, 140 (2012)

(collecting examples). To suggest that Chavez was not

66 CHAVEZ V. ROBINSON

denied counsel in one critical phase of his appeal because he

had counsel in another critical phase of his appeal flies in the

face of these cases.

Nor does it matter to Chavez’s Sixth Amendment claim

that he had the opportunity outside the mandated treatment

program to communicate with counsel about withdrawing his

appeal. See Maj. Op. at 38. Chavez does not argue that he

was generally prevented from consulting with counsel about

bringing or withdrawing his appeal. To the contrary,

Chavez’s point is that waiving his Fifth Amendment privilege

and confessing to the conduct underlying his conviction while

his appeal was still pending would have had the same effect

as withdrawing his appeal. Such a waiver and confession

might “make it pointless to pursue an appeal” by rendering

any possible retrial “a mere formality,” Cahill v. Rushen,

678 F.2d 791, 795 (9th Cir. 1982), and so constitutes a

“critical stage” of the prosecution to the same degree as does

a discussion about whether procedurally to withdraw an

appeal, id.

The majority further contends that, because “the Sixth

Amendment has no application to supervised release

proceedings,” Chavez accordingly had no “right to counsel in

meetings or treatment prescribed by his supervised release

conditions.” Maj. Op. at 38–39 (first quoting United States

v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010); and then citing

Murphy, 465 U.S. at 424 n.3). That statement of law is true

but irrelevant. Chavez does not claim that he generally has “a

right to counsel in a sex offender treatment program.” Maj.

Op. at 40. He claims only a specific right—to consult with

his counsel about the implications of waiving his Fifth

Amendment privilege on his pending appeal and possible

retrial.

CHAVEZ V. ROBINSON 67

True, the fact that Chavez was in a sex offender treatment

program enabled Robinson and Moore to invoke the coercive

pressure of imprisonment to attempt to extract his confession.

But the reason Chavez was in a “critical stage” of his

prosecution was not because he was in a sex offender

treatment program but rather because waiving his privilege

would “h[old] significant consequences for” his likelihood of

success on appeal and retrial. Cone, 535 U.S. at 695–96.

For that reason, the majority’s invocation of United States

v. Spangle, 626 F.3d 488 (9th Cir. 2010), is beside the point.

In Spangle, we held that the Sixth Amendment did not apply

to supervised release proceedings because such proceedings

are “indistinguishable from the revocation of parole.”

626 F.3d at 494. Specifically, we relied on the Supreme

Court’s holding in Morrissey v. Brewer, 408 U.S. 471 (1972),

that the Sixth Amendment does not apply to the revocation of

parole because “revocation of parole is not part of a criminal

prosecution.” Spangle, 626 F.3d at 494 (quoting Morrissey,

408 U.S. at 480). By contrast, Chavez claims here that the

Sixth Amendment applied precisely because of the effect

waiving his Fifth Amendment privilege would have on his

appeal and potential retrial, both undoubtedly “part of a

criminal prosecution.” See Penson, 488 U.S. at 88 (appeal);

Cahill, 678 F.2d at 795 (retrial). Minnesota v. Murphy,

465 U.S. 420 (1984), is likewise inapposite because, in that

case as well, there was no pending prosecution or appeal as

to which the potential invocation of the right against self-

incrimination, including the possibility of seeking judicial

immunity, was pertinent, see id. at 422–25 & n.3.

Spangle, Morrissey, and Murphy, then, stand only for the

proposition that probation or supervised release proceedings

do not in and of themselves trigger the Sixth Amendment

68 CHAVEZ V. ROBINSON

right to counsel. It says nothing about the right to consult

counsel before being compelled to waive the Fifth

Amendment privilege during a pending appeal, when that

could render the entire appeal an exercise in futility.

Whether Chavez was denied counsel at a “critical stage”

of his appeal when he was not permitted to consult with his

attorney about whether to make the potentially self-

incriminating statements is therefore an open question on the

merits. As “[a]ny amount of additional jail time has Sixth

Amendment significance,” Frye, 566 U.S. at 147 (alterations

omitted) (quoting Glover v. United States, 531 U.S. 198, 203

(2001)), I believe it likely that he was. Nonetheless, it is not

necessary for us to conduct this fact-specific analysis here,

because, as the majority explains, neither Roe v. Flores-

Ortega, 528 U.S. 470 (2000), nor Cahill v. Rushen, 678 F.2d

791 (9th Cir. 1982), clearly establishes the right Chavez

asserts, and thus his right-to-counsel claim is foreclosed by

qualified immunity. I write separately, however, to

emphasize that Chavez’s right-to-counsel claim is foreclosed

on this ground only. Neither the fact that he had counsel at

other stages of his appeal nor the fact that the Sixth

Amendment is inapplicable to supervised release proceedings

has any bearing on his claim.

For the foregoing reasons, I respectfully concur in the

judgment as to the Sixth Amendment qualified immunity

issue but dissent with regard to the Fifth Amendment § 1983

issue and the majority’s reasoning on the Sixth Amendment

question.