# Reply Brief — City of Hays v. Vogt, 138 S. Ct. 55 (2017) (No. 16-1495) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0757%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2017 ## Text No. 16—1495 In the Supreme Court of the Anited States City OF HAYS, KANSAS, PETITIONER U. MATTHEW JACK DWIGHT VOGT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT REPLY BRIEF FOR THE PETITIONER DAVID R. COOPER LAUREN LAUSHMAN FISHER, PATTERSON, SAYLER & SMITH LLP 3550 SW Sth Street Topeka, KS 66606 JOHN T. BIRD City ATTORNEY GLASSMAN, BIRD, BROWN & POWELL LLP 200 West 13th, PO Box 727 Hays, KS 67601 TOBY J. HEYTENS Counsel of Record DANIEL R. ORTIZ UNIVERSITY OF VIRGINIA SCHOOL OF LAW SUPREME COURT LITIGATION CLINIC 580 Massie Road Charlottesville, VA 22903 heytens@virginia.edu (434) 924-3229 TABLE OF CONTENTS . Vogt proposes no workable test for determining which pretrial uses violate the Self-Incrimination Clause... The grand jury analogy underscores the fundamental problems with the Tenth ES ES I BE ne . Holding that the Self-Incrimination Clause can be violated by use during pretrial proceedings would cause severe problems . Vogt’s remaining arguments do not warrant e . sc anesiaanin . At minimum, the Court should hold that no Garrity violation can occur before trial TABLE OF AUTHORITIES Cases: Best v. City of Portland, 554 F.3d 698 oS ee eee rn 2 Chavez v. Martinez, 538 U.S. 760 (2003)...... 14, 20, 21 Coleman v. Alabama, 399 U.S. 1 (1970) ................... 11 Counselman v. Hitchcock, 142 U.S. 547 (1892).......... 9 Crawford v. Washington, 541 U.S. 36 (2004) ....... 3, 18 Cruz v. New York, 481 U.S. 186 (1987) 18 Digital Equip. Corp. v. Desktop Direct, Inc., eae FS |: a ers 7 Douglas v. California, 372 U.S. 353 (1963) .............. 11 Estelle v. Smith, 451 U.S. 454 (1981) 3,7 Garrity v. New Jersey, 385 U.S. 493 (1967)........ 14, 21 Gerstein v. Pugh, 420 U.S. 103 (1975) . 5 Halbert v. Michigan, 545 U.S. 605 (2005) ................ 11 Hiibbel v. Sixth Judicial Dist. Ct., 4's B00 . 17 Jackson v. Denno, 378 U.S. 368 (1968) 12 Kastigar v. United States, 406 U.S. 441 (1972)........ 10 Michigan v. Bryant, 562 U.S. 344 (2011)............ 18, 20 Michigan v. Tucker, 417 U.S. 433 (1974) 20 Miranda v. Arizona, 384 U.S. 436 (1966) ................. 21 Pennsylvania v. Ritchie, 480 U.S. 39 (1987).............. 1 People v. Melotik, 561 N.W.2d 453 Gn 15 Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) . . 12 II Rayyis v. Superior Court, 35 Cal. Rptr. 3d 12 e 15 State v. Butler, 897 P. 2d 1007 (Kan. 1995) 4, 5, 8 State v. Moats, 457 N. W. 2d 299 (Wis. 1990) 16 State v. Zimmerman, 660 P. 2d 960 (Kan. 1983) 7 United States v. Hubbell, 530 U.S. 27 (2000) 17, 18 United States v. North, 910 F.2d 843 e ..... 15 United States v. Verdugo-Urquidez, r 1. 10 Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) 6 Waller v. Georgia, 467 U.S. 39 (1984) 12 Whorton v. Bockting, 549 U.S. 406 (2007)................ 18 Constitutional Provisions, Statutes and Rules: e ̃ . 10 Kan. Stat. Ann. § 22-2902(1) (20 16) 5, 6 Kan. Stat. Ann. § 22-2902(3) (2016)........................ 4,5 Miscellaneous: Albert W. Alschuler, A Peculiar Privilege In Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625 (1996) 19 Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086 (1994) 19 John H. Langbein, The Historical Origin of the Privilege Against Self-Incrimination At Common Law, 92 Mich. L. Rev. 1047 (1994)..................00.... 19 U.S. Attorneys’ Manual: Principles of Federal — 16 REPLY BRIEF FOR THE PETITIONER Our position is straightforward. It is based in the constitutional text. And it has remained consistent throughout these proceedings. See Pet. Cert. Reply Br. 4 (Our argument does not turn on when a ‘criminal case’ begins.”). A person cannot be a “witness against” a criminal defendant until the stage where guilt and punishment are determined—that is, at trial. That is why this Court has described the Self-Incrimination Clause and the Confrontation Clause as trial rights. That is why defendants may not attack indictments by claiming that the grand jury violated either Clause and why the Confrontation Clause does not apply to constitutionally mandated bail hearings. Pet. Br. 19- 22. And that is why there is no warrant for holding that the Self-Incrimination Clause is violated—and civil liability triggered—by use of allegedly compelled statements during pretrial hearings that are not con- stitutionally required and that are expressly designed to substitute for the very grand jury proceedings where the Fifth Amendment would pose no such bar. Vogt's position, in contrast, is a moving target. Ac- cording to Vogt, the Self-Incrimination Clause covers uses “at any point in the criminal case.” Resp. Br. 10, 32. Except (maybe) not uses before a grand jury. Id. at 45. Or (probably) not during post-charge bail hearings. Id. at 29, 48 n.12. And (perhaps) not during proceed- ings held to determine the defendant’s competency to stand trial. /d. at 29, 38 n.8. And definitely not during ! United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (‘The privilege against self-incrimination * * * is a fundamental trial right of criminal defendants.”); Pennsylvania v Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion) (“The opinions of this Court show that the right to confrontation is a trial right). 2 suppression hearings designed “to filter out [the] com- pelled statements themselves,” id. at 55 n.14, but (maybe) during hearings held to determine the admis- sibility of other evidence, see Best v. City of Portland, 554 F.3d 698, 702-703 (7th Cir. 2009) (holding that plaintiff had stated claim based on use of compelled statements during a suppression hearing). These hedges, caveats, and qualifications are nec- essary to prevent Vogt’s proposed resolution of this case from too flagrantly violating this Court's prece- dent or practical realities. But they illustrate a deeper problem. To the extent Vogt proposes a clear rule that he attempts to ground in the constitutional text, that rule sweeps far beyond this case and creates conse- quences he is unwilling to accept. And when Vogt tries to limit the damage, his “rule” becomes increasingly ad hoc, jerry-rigged, and removed from the constitutional text and purpose. A. Vogt proposes no workable test for deter- mining which pretrial uses violate the Self- Incrimination Clause I. Vogt's primary argument involves a reading of the constitutional text that cannot be squared with this Court’s precedent or his own concessions about which pretrial uses the Fifth Amendment does and does not restrict. As Vogt points out, “(t]he Self-Incrim- ination Clause prohibits the government from ‘com- pel[ing]’ a person ‘to be a witness against himself” ‘in any criminal case. Resp. Br. I. According to Vogt, a “criminal case” exists once formal proceedings have been initiated, id. at 16-18, and the sole function of the words “witness against himself” is to “describe[] the 3 type of evidence covered by the Clause,” id. at 9, re- gardless of “how or when the prosecution later uses that statement,” id. at 20. As the Federal Government has already explained (U.S. Br. 18-19), that argument is inconsistent with Esteile v. Smith, 451 U.S. 454 (1981), which involved the constitutional restrictions on use of a defendant's statements from a court-ordered competency examina- tion. The statements were compelled and testimonial, id. at 463-464, 468, and they were obtained and used after a criminal case had been commenced, id. at 456- 457 (noting that the examination took place after the defendant was indicted). Yet the Court was clear that although use of the defendant’s statements in one type of proceeding (a sentencing hearing to determine his future dangerousness) had violated the Self-Incrimi- nation Clause, id. at 466, “no Fifth Amendment issue would have arisen” had the statements been used dur- ing a hearing held to “ensur{e] that [the defendant] un- derstood the charges against him and was capable of assisting in his defense,” id. at 465; see id. at 468. Es- telle thus demonstrates that, contrary to Vogt’s sug- gestions, the exact same statements may or may not trigger Self-Incrimination Clause concerns depending on “how or when the prosecution later uses” them, Resp. Br. 20. Cf. Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004) (reaffirming that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”). In fact, Vogt himself relies on a context- and pur- pose-based approach when attempting to avoid the un- tenable consequences of his own proposed rule. For ex- ample, Vogt argues that there is no constitutional 4 problem with using a compelled statement for pur- poses of determining the statement’s admissibility at trial because “the point of a suppression hearing is to determine whether the statement is compelled and el- igible for Fifth Amendment protection.” Resp. Br. 55 n.14. Vogt makes the same move when discussing bail hearings and competency proceedings. Id. at 48 n.12 (referring to the “purpose” served by bail hearings); id. at 29 (discussing bail hearings and competency pro- ceedings). We agree with Vogt that the context and purpose for which an allegedly compelled statement is being used matters for Fifth Amendment purposes. But, at that point, even Vogt has abandoned the idea that the “witness against himself” determination can be based solely “on the nature of the evidence given and the circumstances surrounding that person’s statement at the time it is made.” Id. at 20. 2. Although the precise formulations vary, Vogt suggests three more reasons why use of his allegedly compelled statements during the probable cause hear- ing violated the Fifth Amendment. The first rests on a mischaracterization of the nature of that hearing. The second and third have no basis in the constitutional text and are endlessly manipulable. a. At times, Vogt suggests that the Self-Incrimina- tion Clause was violated because the purpose of the probable cause hearing was to determine his guilt or innocence. See, e.g., Resp. Br. 9 (“to demonstrate his criminal guilt”); id. at 28 (“showing his guilt of the charged crime”). That simply isn’t so. Under Kansas law, “[a] preliminary hearing is not a trial of a defend- ant’s guilt or innocence but rather an inquiry as to whether the defendant should be held for trial.” State v. Butler, 897 P.2d 1007, 1020 (Kan. 1995) (emphases added); accord Kan. Stat. Ann. § 22-2902(3) (2016) 5 (framing issue as whether “there is probable cause to believe that a felony has been committed by the de- fendant”). The probable cause hearing thus “fulfills the function of a grand jury proceeding,” Butler, 897 P.2d at 1007, for which it is an express statutory substitute, Kan. Stat. Ann. § 22-2902(1) (2016) (providing “a right to a preliminary examination before a magistrate, un- less such charge has been issued as a result of an in- dictment by a grand jury). b. Vogt’s next argument is framed in the negative. Unlike certain other pretrial proceedings, Vogt sug- gests, probable cause hearings implicate the Fifth Amendment because they are not “so divorced from the ultimate determination of guilt and punishment as to warrant different treatment” than uses at trial. Resp. Br. 29. There are several fatal problems with this argu- ment. Vogt never explains how a “so divorced” test can be squared with his proposed interpretation of “crimi- nal case” and “witness against.” What is more, Vogt's own explanations only underscore the severe line- drawing problems that would be created by such a standard. For example, Vogt all but concedes that the Fifth Amendment does not apply to use of the defend- ant’s statements at constitutionally mandated bail hearings. Resp. Br. 29, 48 n.12. But why not? The ulti- mate legal question is the same as at Kansas’s proba- ble cause hearing: whether there is “probable cause to believe the suspect has committed a crime.” Gerstein v. Pugh, 420 U.S. 103, 120 (1975) (bail hearings); see Kan. Stat. Ann. § 22-2902(3) (2016) (probable cause hearing). True, the hearings may be governed by some- what different procedural rules, Resp. Br. 48 n.12, and the consequences of an affirmative answer are some- what different. But those differences have nothing to 6 do with the text of the Fifth Amendment nor with the relationship between the question to be decided at the hearing and “the ultimate determination of guilt and punishment.” Id. at 29; cf. Van Cauwenberghe v. Biard, 486 U.S. 517, 527 (1988) (holding that even an order denying a motion to dismiss based on forum non conveniens was not “completely separate from the mer- its” for purposes of the collateral order doctrine). c. At still other points, Vogt suggests that use of his statements violated the Self-Incrimination Clause because the probable cause hearing was “a necessary step the State had to take to continue prosecuting him,” Resp. Br. 29, and thus gave Vogt “a chance to avoid trial in the first place,” id. at 12. That claim likewise cannot withstand scrutiny. For one thing, it depends on a very specific use of the word “necessary.” Unlike the constitutionally mandated bail hearings at which Vogt seems to acknowledge that the Self-Incrimination Clause would have posed no bar to the use of his statements, the Federal Constitution did not require Kansas to conduct a preliminary hearing at all. Pet. Br. 20-21. Even under Kansas law, moreo- ver, there is no right to a probable cause hearing where the defendant has been indicted by a grand jury. Kan. Stat. Ann. § 22-2902(1) (2016). In other words, neither the Federal Constitution nor Kansas law made the hearing “necessary” in the sense of being “essential.” A chance-to-avoid-trial test also proves far too much and is endlessly manipulable. A defendant who challenges his competency to stand trial has “a chance to avoid trial in the first place,” Resp. Br. 12, but this Court has said that use of compelled statements dur- ing competency hearings does not violate the Self. In- 7 crimination Clause, Estelle, 451 U.S. at 465, 468. De- fendants file suppression motions because they hope “to avoid trial in the first place,” Resp. Br. 12, but Vogt disclaims any suggestion that the Clause is violated by use of allegedly compelled statements at suppression hearings, Resp. Br. 55 n.14. This Court has been care- ful to police against facile use of chance-to-avoid-trial reasoning in other contexts. See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994) (ob- serving that “virtually every right that could be en- forced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial’”) (citation omitted). Similar vigilance is war- ranted here. A chance-to-avoid-trial theory is particularly dubi- ous here for two additional reasons, one involving Vogt’s own inaction and the other involving Kansas law. As we and the Federal Government have pointed out, it appears that Vogt made no effort to prevent con- sideration of his allegedly compelled statements dur- ing the probable cause hearing, whether by filing a prehearing motion or objecting at the hearing itself. Pet. Br. 28; U.S. Br. 4 n.2. If the Fifth Amendment problem was compromising his chance to avoid a trial, it was at least partly of Vogt’s own making. The final problem with a chance-to-avoid-trial ar- gument can be illustrated by imagining a counterfac- tual where the state trial court found probable cause and allowed the criminal case to proceed. Vogt could not have taken an immediate appeal, because in Kan- sas, like the federal system, criminal defendants are not permitted interlocutory appeals. State v. Zimmer- man, 660 P.2d 960, 963 (Kan. 1983). So even if Vogt had objected to the use of his statements during the probable cause hearing or filed a motion to suppress 8 his statements after it—and even if such a claim had merit—Vogt still could have been faced with the choice “between trial and a plea” had the judge wrongly over- ruled Vogt's objection, “even though the prosecution should never have been entitled to go to trial in the first place.” Resp. Br. 58.2 B. The grand jury analogy underscores the fundamenta! problems with the Tenth Cir- cuit’s ruling Everyone agrees that “this case does not involve grand jury proceedings.” Resp. Br. 45. And it is under- standable why the Federal Government—w hich, un- like the States, is constitutionally required to prose- cute via grand jury—would resist the comparison to minimize the risk of adverse impact on federal prose- cutions. U.S. Br. 9 n.3. But the grand jury analogy is a telling one, and Vogt’s inability to refute it underscores the weaknesses of his position. 1. To briefly restate the point: A criminal defend- ant may not attack an indictment by claiming that the grand jury considered his own previously compelled statements. The Federal Constitution permits States to use—or not use—grand juries as they see fit, and Kansas law specifically provides that the hearing that 2 Vogt could have challenged the conduct of his probable cause hearing via an appeal from a judgment of conviction. Even there, however, Kansas law provides that “where an accused has gone to trial and been found guilty beyond a reasonable doubt, any er- ror at the preliminary hearing stage —including consideration of inadmissible evidence—‘is harmless unless it appears that the error caused prejudice at trial.” Butler, 897 P.2d at 1021. Vogt thus seeks to impose Section 1983 liability against the City based on something that would not have supported relief even had he gone to trial. 9 occurred in this case is a substitute for and an alterna- tive to proceeding via grand jury. The Federal Consti- tution also would permit Kansas to eliminate probable cause hearings entirely and leave criminal defendants with no opportunity to challenge the decision to prose- cute. Pet. Br. 19-21. 2. Vogt disputes none of that. Instead, he suggests that the difference is that there is no “‘criminal prose- cution’ at the time the grand jury does its work,” that “the grand jury’s unique role and history” explain why “the Fifth Amendment's constraints” are “ease[d]” in that context, and that there is no anomaly in saying that the Constitution imposes fewer restrictions on proceedings that are often constitutionally required (grand juries) than on proceedings that are never con- stitutionally required (probable cause hearings). Resp. Br. 45-47. None of these arguments withstands scru- tiny. a. The presence or absence of an ongoing “criminal prosecution” provides no basis for treating grand juries and probable cause hearings differently for Self-In- crimination Clause purposes. The reason is simple. The words “criminal prosecution” appear only in the Sixth Amendment, whereas both the Grand Jury Clause and the Self-Incrimination Clause are housed in the Fifth Amendment. The Self-Incrimination Clause applies to “criminal casels].“ Vogt's whole argument, of course, is premised on the idea that probable cause hearings are part of a criminal case. But, as Vogt acknowledges, this Court has said that grand jury proceedings also “are part of a ‘criminal case’ under the Fifth Amendment.” Resp. Br. 25 (citing Counselman v. Hitchcock, 142 U.S. 547, 563 (1892)). Although Counselman was overruled on 10 other grounds by Kastigar v. United States, 406 U.S. 441 (1972), its conclusion about the scope of “criminal case” has never been disavowed. Indeed, it is rein- forced by the Fifth Amendment's clarification that there is no right to a grand jury “in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” U.S. Const. amend. V (emphasis added). By underscoring that grand jury proceedings are part of the “criminal case,” the constitutional text thus refutes any effort to distin- guish between grand juries and probable cause hear- ings on that basis. b. Vogt’s assertion that “the grand jury's unique role and history” explain why this Court has easeld] the Fifth Amendment’s constraints in grand jury pro- ceedings,” Resp. Br. 46, suffers from two problems. First, it assumes the answer to the question being asked by presupposing what the Self-Incrimination Clause would have required had it not been “ease[d].” Second, it amounts to nothing less than a suggestion that grand juries have a non-textual entitlement to vi- olate the Self-Incrimination Clause. In contrast, any anomaly disappears once it is recognized that “[t]he privilege against self-incrimination * * * is a funda- mental trial right” that can be violated “only at trial.” Verdugo-Urquidez, 494 U.S. at 264. c. Vogt is right that the Federal Constitution sometimes imposes restrictions on procedures that States are not required to create in the first place. Resp. Br. 46-47. But when the Constitution does so, it is for some reason. Other than simply repeating his as- sertions about what the Fifth Amendment requires of its own force, Vogt identifies no such reason here. 11 In fact, Vogt’s own example undermines his argu- ment. As Vogt notes, Resp. Br. 46-47, “[t]he Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions.” Hal- bert v. Michigan, 545 U.S. 605, 610 (2005). But if States provide for such review, the Constitution re- quires them to “appoint counsel for an indigent defend- ant's first-tier appeal as of right.” Id. at 611. The Court’s decisions also explain why this is so: because of “both equal protection and due process concerns.” /d. at 610 (internal citation omitted). Here, in contrast, equality and fairness concerns cut against Vogt. In the appointment-of-counsel con- text, the salient distinction was between rich and poor defendants, and the Court’s decisions acted to address an existing disparity. See Douglas v. California, 372 U.S. 353, 355 (1963) (“[T]here can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has.”) (internal quotation marks and citation omitted) But Vogt is asking this Court to hold that the Constitution requires creating a distinction between different categories of defendants (those who can take issue with use of allegedly com- pelled statements during pretrial proceedings and those who cannot) and to do so based on a distinction over which States have unfettered choice and the de- fendants themselves often have no control (whether a particular prosecution involves a grand jury or a prob- able cause hearing). The Court's decision in Coleman v. Alabama, 399 U.S. 1 (1970), Resp. Br. 47, reflects a different principle. The Sixth Amendment has long been construed to require counsel at all critical stages of the State's criminal process, including stages that are not constitutionally required. Coleman, 399 U.S. at 7-9 (plurality opinion) (giving examples). The Court's holding was 12 C. Holding that the Self-Incrimination Clause can be violated by use during pretrial pro- ceedings would cause severe problems The court below acknowledged that if the Fifth Amendment applies to pretrial proceedings,” evidence that would be inadmissible at trial “would be consid- ered inadmissible in pretrial proceedings as well.” Pet. App. 19a. Such a holding would create severe prob- lems. 1. For one thing, the City is not the gatekeeper of evidence on Fifth Amendment grounds. It is the court, not the parties or the witnesses, that determines whether evidence was obtained in a constitutional manner and the uses to which it may be put in further proceedings. Cf. Jackson v. Denno, 378 U.S. 368 (1968); note 5, infra (discussing Kastigar hearings). What is more, Vogt seeks to hold the City liable based on at least two decisions the City did not make: the state prosecutors, not the City, decided to proceed via probable cause hearing rather than via grand jury and to use Vogt’s allegedly compelled statements at the probable cause hearing. Pet. Br. 27-29; State & Local Gov't Employers Amicus Br. 9, 12-14. thus based on a conclusion that the preliminary hearing at issue there was a “critical stage” for Sixth Amendment purposes. This case involves a different question: what uses of allegedly com- pelled statements make someone a “witness against himself” for purposes of the Self-Incrimination Clause. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986), and Waller v. Georgia, 467 U.S. 39 (1984), Resp. Br. 39 n.9, are even further afield, because those cases implicated im- portant public interests involving access to judicial proceedings. Waller, 467 U.S. at 46-47 (noting that the public-trial guarantee “ensure[s] that judge and prosecutor carry out their duties re- sponsibly’). 13 2. Vogt acknowledges that his position would re- quire courts to resolve admissibility issues before con- ducting at least some types of pretrial proceedings. Resp. Br. 53-55. As the State amici explain, requiring that such decisions be made before bail hearings or during grand jury proceedings would be incompatible with the nature of those proceedings. Kansas Amicus Br. 5-11. Even if the Court could identify some basis for lim- iting expansion of the Self-Incrimination Clause's re- strictions to probable cause hearings alone, but see Section A, supra, such a holding would still cause sig- nificant problems. The Federal Government and many States currently forbid courts from adjudicating sup- pression issues during probable cause hearings, U.S. Br. 29; Kansas Amicus Br. 13 & n.5, so all of those rules would have to be flipped to require courts to do so. But the current rules are well-justified, because “requir[ing] courts to make complex determinations about the admissibility of a defendant’s statements be- fore resolving other preliminary issues” “would change the nature and purpose of pretrial proceedings,” U.S. Br. 26, “either cause delays or would give the parties insufficient time to investigate and prepare” for those hearings, Kansas Amicus Br. 14 (quotation marks and citation omitted), and “raise difficult questions about what a defendant must do to preserve an argument that his statements were compelled,” U.S. Br. 30. 3. Vogt's reassurances that there is no cause for alarm are unpersuasive. a. Much of Vogt’s argument rests on a bit of rhe- torical sleight-of-hand, specifically blurring the dis- tinction between what this Court must assume be- 14 cause of the procedural posture of this case and the ac- tual situation confronting the City. The reason “[t]here is no dispute before this Court that Officer Vogt's statements were compelled by [the City] and impli- cated him in criminal conduct,” Resp. Br. 1, is because the Court is reviewing a decision dismissing Vogt's complaint for failure te state a claim. The City, of course, did not have Vogt’s complaint when it acted, nor was it required to view the facts in the light most favorable to him. Yet much of Vogt's argument is premised on the idea that the City knew all along that Vogt would later argue that his interactions with his former superiors gave rise to obligations under Garrity v. New Jersey, 385 U.S. 493 (1967), and that the City should have avoided the whole problem by keeping the information about Vogt’s possible criminal wrongdoing from the KBI. Resp. Br. 48-52. But, as we and our amici have explained, matters will rarely be so clear in the real world, which is why courts hold suppression hearings in the first place. Pet. Br. 26-27; U.S. Br. 27- 28; Kansas Amicus Br. 67.“ b. Vogt asserts that “application of the Fifth Amendment at pretrial hearings is the law of the land in at least four circuits * * *, and there has been no sign that those proceedings have become unworkable for prosecutors in those parts of the country.” Resp. Br. Simply giving the information to the KI could not itself have been a Fifth Amendment violation because, at that point, there was no “criminal case.” See Chavez v. Martinez, 538 U.S. 760 (2003); Pet. Br. 18-19. This matter was nearly certain to be referred to the KBI in any event, becauee Vogt does not contend that the City compelled him to make his initial disclosures about the knife. And Vogt cites no authority for the proposition that the City was required to forgo even telling state officials that one of its police officers had been implicated in serious wrongdoing. 15 53-54. It would be more accurate to say that courts and litigants have yet to perceive the problem. The deci- sions comprising the Vogt-favoring side of the split were all civil cases decided within roughly the last dec- ade, see Pet. 7-8, and we have been unable to locate any cases where a criminal defendant relied on one of those decisions to support a claim that the Federal Constitution barred use of allegedly compelled state- ments during pretrial proceedings or required over- turning a conviction because such statements were im- properly used during such proceedings. That will doubtlessly change if Vogt prevails before this Court.“ 4. Vogt contends (Resp. Br. 29-30) that our posi- tion would permit the prosecution to require criminal defendants to take the witness stand at probable cause hearings and then use the resulting statements to sup- port binding the defendant over for trial. Vogt identi- fies no case where prosecutors attempted such a ma- neuver.® (And, of course, Vogt’s own approach would Vogt is incorrect that “courts have already determined that the Fifth Amendment requires pretrial proceedings in cases where testimony has been immunized.” Resp. Br. 56. Under cur- rent law, “a trial court may hold a Kastigar hearing pre-trial, post-trial, mid-trial (as evidence is offered), or it may employ some combination of these methods.” United States v. North, 910 F.2d 843, 854 (D.C. Cir. 1990). Under Vogts approach, these “time-consuming procedure[s],” Resp. Br. 56, often will need to occur far earlier and before other proceedings designed to take place immediately or soon after charges are filed. ® The decisions cited by NACDL (at 18), are not to the con- trary. Rayyis v. Superior Court, 35 Cal. Rptr. 3d 12, 13-14 (Cal. Ct. App. 2005), involved “the ‘corpus delicti rule, under which “the fact that a crime has been committed * * * cannot be proved based solely on extrajudicial statements of the defendant.” People v. Melotik, 561 N.W.2d 453, 455, 457 (Mich. Ct. App. 1997), and 16 permit such conduct before a grand jury, yet he pro- vides no reason for believing there have been problems in that context either.) The reason should be equally obvious: the strategy would be self-defeating. The defendant would be able to invoke the privilege against self-incrimination at the probable cause hearing and refuse to speak unless granted immunity. See Pet. Br. 12-15 (discussing the distinction between when the privilege against self-in- crimination may be invoked and when the Fifth Amendment is actually violated). And any victory won at the probable cause hearing by granting the defend- ant immunity would almost certainly be a pyrrhic one, because the resulting statements would be inadmissi- ble at trial and it seems unlikely that the prosecutors would be able to carry their burden of showing that none of their trial evidence was derived from the de- fendant’s immunized statements. See id. at 16-18 (dis- cussing immunity doctrines).’ D. Vogt’s remaining arguments do not war- rant a different result 1. Contrary to his repeated suggestions (Resp. Br. 20-24), the issue is not whether Vogt's statements State v. Moats, 457 N.W.2d 299, 302 (Wis. 1990), involved out-of- court statements obtained by police officers. Vogt is suggestion that this Court should act to prevent pros- ecutors from bringing cases where they know the “defendant's compelled statement would not be admissible at trial” solely in the “hope” of “extract{ing] a plea,” Resp. Br. 58, ignores ſt Ihe pre- sumption of regularity” and good faith accorded to those charged with enforcing the law. United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted); see U.S. Attorneys’ Manual: Princi- ples of Federal Prosecution § 9 27. 220 (instructing prosecutors to commence a case only if they “believe[] * * that the admissible evidence will be sufficient to obtain and sustain a conviction’ ). 17 were sufficiently testimonial to make him a “witness.” True, the Court has used that word to describe people who participate in “any investigation,” id. at 21 (cita- tion omitted), including those questioned by police of- ficers, Crim. Proc. Scholars Amicus Br. 18-19. But the Court has been equally clear that the Fifth Amend- ment cannot be violated absent some sort of courtroom use during a criminal proceeding. Pet. Br. 18-19. Ac- cordingly, the key question is whether use of Vogt's statements at the probable cause hearing was, by it- self, enough to render him “a witness against himself.” 2. Vogt claims “that a defendant becomes a ‘wit- ness against himself’ when he makes ‘incriminating communications that are ‘testimonial’ in charac- ter.“ Resp. Br. 19 (quoting United States v. Hubbell, 530 U.S. 27, 34 (2000)). That is not what Hubbell says. The sentence from which Vogt quotes only in part makes clear that the Court was speaking (a) about the meaning of “witness” rather than “witness against himself,” and (b) in terms of minimum requirements rather than comprehensive definitions. Hubbell, 530 U.S. at 34 (The word ‘witness’ in the constitutional text limits the relevant category of compelled incrimi- nating communications to those that are ‘testimonial’ in character.“). And Vogt’s claim that the sole function of the words “against himself” is to “require[] that the testimonial statements be incriminating” in some gen- eral sense is warranted by neither decision offered to support it. Resp. Br. 19-20 (citing Hubbell, 530 U.S. at 34, and Hiibbel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 189 (2004)).* Although he claims that our discussion of Hubbell “makes no sense,” Resp. Br. 42, Vogt cannot explain why the Court em- phasized the government's inability to show “that the evidence it 18 This Court’s decisions construing the similarly worded Confrontation Clause reinforce that one can- not “be a witness against [one]self” until the stage where guilt and punishment are determined. In Craw- ford v. Washington, 541 U.S. 36 (2004), for example, the Court noted that “[o]ne could plausibly read ‘wit- nesses against’ a defendant to mean those who actu- ally testify at trial, those whose statements are offered at trial, or something in-between,” id. at 42-43 (cita- tion omitted), but gave no hint that one could be a “wit- ness against” the defendant absent any use at trial. In Cruz v. New York, 481 U.S. 186 (1987), the Court stated that ſolrdinarily, a witness is considered to be a witness ‘against’ a defendant for purposes of the Con- frontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt,” id. at 190 (emphases added)—that is, the ev- idence at trial. Accord Michigan v. Bryant, 562 U.S. 344, 358 (2011) (describing “the basic objective of the Confrontation Clause” as “preventling] the accused from being deprived of the opportunity to cross-exam- ine the declarant about statements taken for use at trial”); Whorton v. Bockting, 549 U.S. 406, 413 (2007) (reiterating that the Confrontation Clause applies to “[tlestimonial statements of witnesses absent from trial”) (citation omitted). 3. Vogt's argument from history also fails. We agree that “the Framers could not possibly have in- tended the phrase [‘witness against himself'] to cover * * * proposed to use at trial was derived from legitimate [inde- pendent] sources.” Pet. Br. 18 n.11 (quoting Hubbell, 530 U.S. at 45). On Vogt’s view, that observation was irrelevant at best, and actively misleading at worst. 19 statements made by the defendant only at the trial it- self.” Resp. Br. 22. Like the Confrontation Clause, the Self-Incrimination Clause also covers at-trial use of a defendant's compelled pretrial statements. Pet. Br. 1, 9, 12-14. Where we disagree is whether a defendant has been made to be a “witness against himself” when he has neither been forced to take the witness stand at his own trial nor had his own previously compelled statements introduced against him at trial. As the Federal Government explains, the purpose of the pretrial examinations Vogt discusses was to gen- erate evidence that could later be used to prove the de- fendant’s guilt at trial. U.S. Br. 19-24.9 Vogt provides no evidence that the Fifth Amendment “was intended to guard against the use of a defendant's compelled statements for the limited purpose of determining whether the case should go forward upon a showing of probable cause after charges were filed, with no subse- quent use of the statements at the guilt or penalty stage.” U.S. Br. 23. Vogts sources agree. Albert W. Alschuler, A Peculiar Privi- lege In Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625, 2654 (1996) (‘Until the mid-eighteenth cen- tury, the record of the defendant's pretrial examination was rou- tinely read at her trial.”); John H. Langbein, The Historical Ori- gins of the Privilege Against Self-Incrimination At Common Law, 92 Mich. L. Rev. 1047, 1061 (1994) (Having impaled himself at pretrial, the criminal defendant would find that any supposed privilege against self-incrimination available at trial was worth little. If he declined to testify at trial, or attempted to recant upon his pretrial statement, the pretrial statement would be invoked against him at trial.”); Eben Moglen, Taking the Fifth: Reconsid- ering the Origins of the Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1098 (1994) (“All sources agreed” that the de- fendant’s pretrial “confession, if any, was to be admissible against him at trial.). 20 Vogt's contrary claims miss the mark because they neglect the critical distinction between when the priv- ilege against self-incrimination may be invoked and when the Fifth Amendment is actually violated. See Pet. Br. 12-15 (discussing this distinction). It is true that, at common law, a criminal defendant was barred from testifying at his own trial. Resp. Br. 22, 31. But that does not mean there was no way a defendant could be “a witness against himself” at such trials. Cf. Bryant, 562 U.S. at 357-358 (explaining that the basic purpose of the Confrontation Clause was to targe|t] the sort of abuses exemplified at the notorious treason trial of Sir Walter Raleigh,” where an accuser’s out-of-court statements were admitted against Ra- leigh at trial) (internal quotation marks & citation omitted). And that risk, in turn, explains why “defend- ants had throughout the criminal process a right to re- fuse to provide self-incriminating testimony under oath.” Resp. Br. 31. Not because compulsion, standing alone, would render the defendant “a witness against himself.” But rather because it was clear, then as now, “that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.” Michigan v. Tucker, 417 U.S. 433, 440-441 (1974). E. At minimum, the Court should hold that no Garrity violation can occur before trial This case is a far cry from Chavez v. Martinez, 538 U.S. 760 (2003). There, the plaintiff was subject to in- tense police questioning while “screaming in pain” af- ter being “shot in the face,” and the officer made no effort to dispel the perception that medical treatment was being withheld until [the plaintiff] answered the questions put to him.” /d. at 798 (Kennedy, J., concur- ring in part and dissenting in part). 21 Vogt cannot claim that he experienced “severe com- pulsion,” Chavez, 538 U.S. at 799 (Ginsburg, J., con- curring in part and dissenting in part), much less “tor- ture or its close equivalents,” id. at 789 (Kennedy, J. concurring in part and dissenting in part). Even cred- iting all allegations of the complaint, this case involves a police officer who notified his employer about his own misconduct and was then required, as a condition of his job (from which he had already decided to quit) to provide additional information about those same mat- ters. Pet. App. 49a. As we explained in our opening brief, “[e]ven if some types of Fifth Amendment violations could occur before trial, the Court should reject any such notion for * * * claims” like Vogt’s. Pet. Br. 25 (citing Garrity v. New Jersey, 385 U.S. 493 (1967)). Such claims bear no resemblance to the types of abuses that motivated the Self-Incrimination Clause. What is more, the Consti- tution specifically permits a public employer to inform an employee that he will be fired unless he cooperates with an official investigation so long as it follows cer- tain rules, and the appropriate time for determining whether those rules have been followed is at trial. Pet. Br. 25. Thus, as with Miranda v. Arizona, 384 U.S. 436 (1966), the Court should, at minimum, hold that no Garrity violation can occur short of trial. Cf. Chavez, 538 U.S. at 790 (Kennedy, J., concurring in part and dissenting in part) (stating that “[t]he identification of a Miranda violation and its consequences * * * ought to be determined at trial”). * * * The judgment of the court of appeals should be re- versed. 22 Respectfully submitted. DAVID R. COOPER LAUREN LAUSHMAN FISHER, PATTERSON, SAYLER & SMITH LLP 3550 SW Stu Street Topeka, KS 66606 JOHN T. BIRD CiTy ATTORNEY GLASSMAN, BIRD, BROWN & POWELL LLP 200 West 13th, Box 727 Hays, KS 67601 JANUARY 2018 ToBy J. HEYTENS Counsel of Record DANIEL R. ORTIZ UNIVERSITY OF VIRGINIA SCHOOL OF LAW SUPREME COURT LITIGATION CLINIC 580 Massie Road Charlottesville, VA 22903 heytens@virginia.edu (434) 924-3229 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0757%3A07. Public record. Not legal advice.