Aguilera v. Baca

KOZINSKI, Chief Judge,

dissenting for the most part:

When a law enforcement agency suspects one of its employees of criminal *1175 wrongdoing, their relationship becomes a strained and complex one. The employer, of course, retains all powers over the employee qua employer — -it may ask him to work overtime, complete reports, answer the questions of supervisors and generally comply with the terms of the employment relationship. In addition, however, the employer is also in the business of detecting and prosecuting criminal activity, so the employer can — and generally has the duty to — gather evidence that may be used to prosecute the employee and others.

Whether the employer is wearing one hat or the other (or both) is often unclear, which can put the employee in a precarious situation by forcing him to choose between disobeying an order from his employer and giving up the constitutional privilege against self-incrimination. In such situations, the employer must not play on this ambiguity to the disadvantage of the employee; rather, it must clarify whether it is questioning the employee in its capacity as an employer or as a law enforcer. Where the employer fails to do this, the employee is entitled to act on the assumption that he is dealing with a law enforcement agency, if a reasonable person in his position would have so believed. Plaintiffs here easily meet this standard, and so they are entitled to bring their case before a jury; this is precisely the kind of conflict that a group of citizens drawn from the community is in the best position to resolve.

1. Arrest Without Probable Cause

Plaintiffs here presented a triable issue of fact on their claim that they were arrested without probable cause because a jury could find, on the evidence presented, that reasonable people in plaintiffs’ position would have believed they were placed under arrest and not merely asked to work overtime. As the majority admits with commendable candor, there is evidence that “militate[s] toward finding that a seizure took place.” Maj. op. at 1170. After all, plaintiffs were told they were under criminal investigation, and they were interviewed by the Internal Criminal Investigation Bureau (ICIB), which investigates only criminal allegations against employees. Id. at 1165. Moreover, plaintiffs’ superior, Captain Angel, speaking in a “harsh, accusatory manner,” told them that he knew one of them had used excessive force on Flores, that the others were covering up and that one or more of them would go to prison and lose their jobs unless they gave statements. Id.

The majority relies on three cases in support of its finding that plaintiffs were not detained, but cites them only selectively. Id. at 1168. United States v. Baird, 851 F.2d 376 (D.C.Cir.1988), found no seizure because the Coast Guard officer there was told that the interview was “voluntary” and that he “was free to go whenever he wanted to.” Id. at 378 ; see id. at 380, 383 . United States v. Muegge, 225 F.3d 1267 (11th Cir.2000) (per curiam), found no seizure because the public employee “was told he was free to leave at any time and did not have to answer any questions.” Id. at 1270 . Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002), turned on the fact that the police officer there “was never informed that he was the suspect for any particular crime, nor was he spoken to in a menacing or threatening manner.” Id. at 648 .

Our case is materially different from Baird, Muegge and Driebel . Plaintiffs weren’t told they were free to leave, and they weren’t told they didn’t have to answer questions. Cf. Muegge, 225 F.3d at 1270 ; Baird, 851 F.2d at 378 . Instead, plaintiffs were told they were suspects in a criminal investigation, and their superior spoke to them in a harsh, accusatory tone and threatened criminal sanctions. Cf. Driebel, 298 F.3d at 648 . A seizure may be effected solely by “the use of language *1176 or tone of voice indicating that compliance with the officer’s request would be compelled.” Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir.1987). Given the context, plaintiffs could reasonably have believed that they had to stay at the police station on pain of arrest. At least, a reasonable jury could so find.

I don’t share the majority’s worry that letting this case go to trial would undermine the employer’s authority to insist that employees remain on duty past their shifts to answer questions. See maj. op. at 1171. An employer can exercise that right without difficulty if he makes it clear that the employees are not under arrest and he avoids the kind of accusations Captain Angel hurled at plaintiffs here. But where the employer brings in criminal investigators, yells at the employees, accuses them of crimes, threatens them with criminal punishment and does not make it clear that they’re not under arrest, a reasonable jury could find that the employees were seized.

If plaintiffs were arrested, the seizure was unconstitutional because the police had no probable cause. Dunaway v. New York, 442 U.S. 200, 216 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). Flores never identified the officer who hit him. Instead, he claimed to have been hit by a male deputy who was possibly Hispanic, but all of the officers in the area were Hispanic and all but one were male. That one member of a group may have committed a crime doesn’t establish probable cause to arrest everyone in that group. United States v. Brown, 951 F.2d 999, 1003 (9th Cir.1991).

Nor were defendants entitled to qualified immunity because the law on unconstitutional seizures was “clearly established” at the time of the incident. Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). No reasonable officer would have believed that he could arrest plaintiffs based on the evidence available. If a jury determines that plaintiffs were in fact arrested when they were detained at the police station, they would be entitled to damages — if only nominal ones — for the harm they suffered as a result of the unlawful arrest. I would therefore reverse the district court’s grant of summary judgment for defendants on plaintiffs’ Fourth Amendment claims and remand for trial on the issue.

2. Retaliation

Plaintiffs claim that defendants retaliated against them for failing to provide statements about the Flores incident for about a year — until defendants explicitly ordered them to provide such statements. According to plaintiffs, only at that point could they be sure that their statements could not be used against them in criminal proceedings and so they reasonably remained silent to preserve their constitutional privilege against self-incrimination. If defendants had really wanted those statements, they could easily have ordered plaintiffs to provide them at any time following the incident, and thereby have removed all doubt as to whether the statements could be used to prosecute plaintiffs. Instead, defendants played cat and mouse with plaintiffs for 12 months, forcing plaintiffs to guess whether any statements they gave could be used to prosecute them. In other words, defendants put economic pressure on plaintiffs to give up their Fifth Amendment rights — or so a jury could reasonably find on this record. I would therefore remand on this issue as well, and allow it to go to trial.

My disagreement with the majority proceeds along four lines:

a. First, I believe there is genuine doubt as to whether plaintiffs were under compulsion to give a statement, and thus whether any statements they gave could *1177 have been used to prosecute them. Certainly, there was no express order. The closest we have is Captain Angel’s statement on the morning following the incident, where he spoke to plaintiffs in a harsh, accusatory manner and told them that they could go to prison or lose their jobs if they did not give statements. But it’s not clear that this was an order; it might have been a prediction or a threat. Or, Captain Angel might have been using a variant of the Prisoner’s Dilemma by suggesting that each of the officers try to save his own skin by pointing the finger at one or more of the others.

Significantly, Captain Angel mentioned that plaintiffs could go to prison if they did not make statements; disobeying an employer’s order can result only in job discipline, never criminal punishment. By including the risk of prison as one of the consequences of not speaking, Captain Angel was clearly doing something other than giving a command to a subordinate. Had some of the plaintiffs given statements, and had they been used against them in criminal proceedings, the prosecution would doubtless have claimed that plaintiffs waived their privilege against self-incrimination because Captain Angel’s statement was not a command. I can’t say for sure that such an argument would have failed.

Whether a person faces compulsion is a question of fact, see United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), and plaintiffs have raised a genuine dispute as to whether they were under compulsion to give statements. A jury might well look at the situation — including the fact that defendants could have removed all doubt on the subject by giving plaintiffs a direct order — and conclude that plaintiffs were not under compulsion.

This factual dispute is material because, whether plaintiffs faced government compulsion determines whether they had immunity, which in turn determines whether they could be punished for refusing to make self-incriminating statements. Public employees automatically have immunity when they are compelled to make self-incriminating statetnents during criminal investigations related to their official duties. See Minnesota v. Murphy, 465 U.S. 420, 434 , 104 S.Ct. 1136 , 79 L.Ed.2d 409 (1984); Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of N.Y., 392 U.S. 280, 284 , 88 S.Ct. 1917 , 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 278 , 88 S.Ct. 1913 , 20 L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 500 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967). When a public employee is ordered to speak, his statements can’t be used against him in a criminal proceeding, and he can therefore be subjected to adverse employment consequences for refusing to speak. See Gardner, 392 U.S. at 276, 278 , 88 S.Ct. 1913 . But if plaintiffs weren’t compelled to make self-incriminating statements, they didn’t automatically have immunity. And, if they had no immunity, they were constitutionally entitled to remain silent. Reasonable jurors could find that plaintiffs didn’t have immunity, thus making it unconstitutional for defendants to punish them for refusing to make self-incriminating statements. See Lekowitz v. Turley, 414 U.S. 70, 84-85 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973); Uniformed Sanitation Men, 392 U.S. at 283 , 88 S.Ct. 1917 ; Gardner, 392 U.S. at 276, 278 , 88 S.Ct. 1913 .

b. Second, I would hold that if the government doesn’t expressly inform public employees that any statements they give can’t be used against them in criminal proceedings, it may not punish them for refusing to speak. This strikes me as the only constitutionally permissible rule. It is also the only just rule, and police officers are entitled to be treated justly and with dignity, no less than anyone else. *1178 The majority, instead, adopts the harsh and unfair rule of the Fifth and Eighth Circuits by permitting the government to punish police officers who refuse to make self-incriminating statements, even though they may not be sure whether or not they have immunity. See Hill v. Johnson, 160 F.3d 469, 471 (8th Cir.1998); Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th Cir.1982).

The Second, Seventh and Federal Circuits have the better approach: The government must tell public employees that they have immunity before it can constitutionally punish them for refusing to make self-incriminating statements. See Weston v. U.S. Dep’t of Hous. & Urban Dev., 724 F.2d 943, 948 (Fed.Cir.1983); Confederation of Police v. Conlisk, 489 F.2d 891 , 895 & n. 4 (7th Cir.1973); Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of N.Y., 426 F.2d 619, 621, 627 (2d Cir.1970) (Friendly, J.). 1 It’s common knowledge that the Fifth Amendment protects the privilege against self-incrimination, as this is explained in the Miranda warning which has “become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). A public employee under criminal investigation should be able to rely on the privilege against self-incrimination, as plaintiffs did here, until he is told in clear terms that the statements can’t be used to prosecute him.

We treat immunity as a substitute for the Fifth Amendment privilege against self-incrimination because immunity “leaves the witness and the [government] in substantially the same position as if the witness had claimed his privilege.” Kasti-gar v. United States, 406 U.S. 441, 458-59 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972) (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 , 84 S.Ct. 1594 , 12 L.Ed.2d 678 (1964)). Usually, the government needs to affirmatively grant immunity, see id. at 459 , 92 S.Ct. 1653 , which concurrently informs the witness that he has immunity. The same is not true where the immunity kicks in automatically, such as when a government employee is ordered to give a statement during the course of a criminal investigation. The employee may, first of all, have doubts as to whether or not he has been ordered to give the statement. This case amply demonstrates this ambiguity and there are numerous other fact patterns where it would not be clear whether the employee has been ordered to speak. I see no justification for forcing the employee to guess whether or not he’s been given an order and, hence, whether he has immunity. See pp. 1176-78 supra.

But even when it is clear that the employee has been given an order, the employee may not know that this gives him automatic immunity. Automatic immunity only leaves a public employee “in substantially the same position as if the [employee] had claimed his privilege,” Kastigar, 406 U.S. at 458-59 , 92 S.Ct. 1653 , when the employee knows without a doubt that he has immunity. See Hill, 160 F.3d at 472-73 (Heaney, J., dissenting); Kalkines v. United States, 200 Ct.Cl. 570 , 473 F.2d 1391, 1395 (1973). After all, “[t]he logic underlying Gardner is that an officer under investigation is not required to speculate as to what his constitutional rights are.” Lybarger v. City of L.A., 40 Cal.3d *1179 822, 834 , 221 Cal.Rptr. 529 , 710 P.2d 329 (1985) (Bird, C.J., concurring). A person who doesn’t know he has immunity, like the plaintiffs here, see maj. op. at 1166, would justifiably believe that “any statement he [makes] may be used ... against him.” Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

We can’t expect public employees who are pressured to give a statement to know that they have immunity. I, for example, had no idea, even though I have been a government employee involved in law-related activities for almost three decades. The employer is in complete control of these situations, and it would be easy as pie for supervisors to inform employees that they have been ordered to speak and therefore have immunity. I can see no legitimate argument against this simple and easily administered rule, which would avoid the kind of mess we have here.

c. Third, the majority’s reliance on Chavez v. Martinez, 538 U.S. 760 , 123 S.Ct. 1994 , 155 L.Ed.2d 984 (2003), see maj. op. at 1173-74, is misplaced because Chavez only applies where a party actually makes self-incriminating statements. In Chavez , the Supreme Court held that there is no Fifth Amendment violation when someone makes a self-incriminating statement but that statement is never used against him. Chavez, 538 U.S. at 769 , 123 S.Ct. 1994 (plurality opinion); id. at 777-79 , 123 S.Ct. 1994 (Souter, J., concurring in the judgment). The majority tries to import the Chavez rule — a Fifth Amendment violation can only occur when a self-incriminating statement is used against someone — into cases, like this one, where there are no self-incriminating statements. But Chavez itself rejected this. The Court there explicitly stated that the government couldn’t “penalize public employees ... to induce them to waive their immunity.” Id. at 768 n. 2, 123 S.Ct. 1994 (plurality opinion). So, under Chavez , the Fifth Amendment would be violated if a public employee were fired for refusing to make self-incriminating statements, even though no self-incriminating statement could ever have been used against the employee.

d. Fourth, contrary to Supreme Court precedent, the majority would only find unconstitutional retaliation for actions taken against public employees that are the “equivalent to losing one’s job.” Maj. op. at 1173. The Court has rejected the argument that “only those employment decisions that are the substantial equivalent of a dismissal violate a public employee’s [constitutional rights].” Rutan v. Republican Party of III., 497 U.S. 62, 75 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990) (internal quotation marks omitted). Here, plaintiffs allege that they were reassigned to less prestigious desk jobs and that they were denied promotions because they refused to make self-incriminating statements. If this was done to punish them for asserting their constitutional rights, it would be unconstitutional, as “even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising herfconstitu-tional] rights,” violates the Constitution. Id. at 76 n. 8, 110 S.Ct. 2729 (internal quotation marks omitted).

Defendants are not entitled to qualified immunity on plaintiffs’ Fifth Amendment claims, because it was “clearly established,” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 , that plaintiffs couldn’t be retaliated against for refusing to make self-incriminating statements if they didn’t have immunity. See Murphy, 465 U.S. at 429 , 436 n. 7, 104 S.Ct. 1136 ; Gardner, 392 U.S. at 276, 278 , 88 S.Ct. 1913 . Plaintiffs could thus also proceed with their conspiracy claims against the individual defendants. Additionally, municipalities aren’t protected by qualified immunity, see Owen v. City *1180 of Independence, 445 U.S. 622, 650 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980), so plaintiffs should likewise be entitled to proceed with their Monell v. Department of Social Services of New York, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), claims against the County and Sheriffs Department. I would therefore reverse the district court’s grant of summary judgment for defendants on plaintiffs’ retaliation claims and remand for trial on these issues as well. 2

* ‡ *

I dissent from Parts III, IV, VI and VII. I join Part V because defendants didn’t violate plaintiffs’ substantive due process rights.

. State courts — including California where these events took place — have also adopted this position. See, e.g., Eshelman v. Blubaum, 114 Ariz. 376, 378-79 , 560 P.2d 1283 (Ct.App.1977); Lybarger v. City of L.A., 40 Cal.3d 822, 829 , 221 Cal.Rptr. 529 , 710 P.2d 329 (1985); Gandy v. State ex rel. Div. of Investigation & Narcotics, 96 Nev. 281, 284 , 607 P.2d 581 (1980); City of Warrensville Heights v. Jennings, 58 Ohio St.3d 206, 209-10 , 569 N.E.2d 489 (1991).

. Because I would hold that plaintiffs could establish a Fifth Amendment violation, the district court's exclusion of Sergeant Kagy's ICIB report wasn’t harmless error. Rather, the district court abused its discretion in excluding the report because plaintiffs offered it for the non-hearsay purpose of proving the police department knew that plaintiffs hadn't harmed Flores months before plaintiffs were returned to their pre-investigatory duty assignments. See Standard Oil Co. of Cal. v. Moore, 251 F.2d 188 , 217 n. 36 (9th Cir.1958).