Warning You of Your Right to Remain Silent is Not a Right After All

July 15, 2022Articles
National Law Review

Warning You of Your Right to Remain Silent is Not a Right After All

You have the right to remain silent and to an attorney, and what you say can be used against you in a court of law.  From Sergeant Joe Friday on “Dragnet” to Lennie Briscoe on “Law & Order,” millions of television viewers have been Mirandized by these all-too-familiar warnings such that they have become as much a part of police work as handcuffs and a badge.  The late Supreme Court Chief Justice William Rehnquist observed, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”[1]  The “Miranda warnings,” which arose out of a “constitutional rule” provided by the Supreme Court in Miranda v. Arizona[2] over 50 years ago, has become guarded precedent such that the Court has shielded it from attack even if subsequent jurists disagreed with its decree – at least for now.[3]

Another well-established rule is the ability to sue the government when one’s rights have been violated.  Section 1983 is a federal statute that allows a person to sue those in government who cause a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”[4]   The statute was passed at a time when the federal government became concerned with states that may be “unable or unwilling” to protect individual freedoms and enforce the laws, and if a state would not intervene, federal courts could do so.[5]  Section 1983 is the statute often used to claim the government acted in an unconstitutional manner and that a statute should be enjoined or an injured party should be compensated with money damages – e.g., challenging an Ohio public school district’s discipline of students[6]; holding prison guards liable for using excessive force that caused death in the Toledo, Ohio area[7]; and challenging the Ohio Department of Health’s refusal to change sex markers on birth certificates for transgender persons[8].

Miranda and Section 1983 recently intersected in the matter of Vega v. Tekoh.  The Supreme Court faced a dilemma: if police officers violated a “constitutional rule” created by Miranda that was meant to protect the Fifth Amendment right to remain silent, could a person sue for money damages under Section 1983 as he would for any other violation of a right?  (Spoiler Alert:  No.)

The case arose out of a confession to sexual assault.  A patient accused Terence Tekoh (“Tekoh”), a certified nursing assistant, of sexual assault, and after questioning by Deputy Carlos Vega (“Vega”), Tekoh eventually signed a written confession.  That confession was used at trial over Tekoh’s objection.  Tekoh was acquitted, and he sued Vega in federal court alleging a violation of his civil rights – specifically, for violating his Fifth Amendment right against compelled self-incrimination because Vega obtained a confession without first providing Miranda warnings that was later used against him.

One could reasonably conclude that when police officers obtain a confession without first issuing the Miranda warnings, a “constitutional rule” has been violated and the suspect could sue in federal court under Section 1983 for money damages.  After all, that is the purpose of Section 1983:  “The purpose of [Section 1983] is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.”[9]  That conclusion is arguably even more appropriate within the Miranda context considering, as a group of scholars did in an amicus brief filed Vega, similar warnings had been provided as a well-established practice for hundreds of years before the Miranda decision itself.  The warnings were a fundamental part of legal culture.[10]

The Supreme Court, however, saw the issue differently.  In Vega, Justice Samuel Alito wrote that even if Miranda was based on the Constitution, there is no “right” to Miranda warnings, and thus no ability to invoke Section 1983 to vindicate a non-existent right.  “At no point in the [Miranda] opinion did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination.”[11]  Miranda was not itself a right, but rather, a set of “rules” designed to “safeguard’ other rights during interrogation.[12]  While a confession obtained without Miranda warnings could be suppressed at a criminal trial (an evidentiary remedy recognized by Miranda and its progeny), a person could not also sue for money damages because, simply put, there is no “right” to Miranda in the Constitution to create a Section 1983 cause of action.  In other words, violating a “constitutional rule” was not akin to violating a “right” because the Fifth Amendment says nothing about a right to receive Miranda warnings.  

While Vega is not itself transformative – after all, the Fifth Amendment does not actually state that one has a right to receive Miranda warnings – the path the Court took to arrive at that conclusion provides some indication about how the Court views its role and its own power.  For instance, Vega suggests that the Court is skeptical about the bounds of government action and its limited authority, even if the action at issue has become commonplace and routine.  Last term, the Court decided AMG Capital Management, LLC v. Federal Trade Commission, which struck down the Federal Trade Commission’s (“FTC”) practice of seeking monetary relief in certain circumstances – an established FTC practice that, as many observed, had become the “norm.”  The Court, however, found such action exceeded statutory authority and struck down a practice even though it became commonplace.[13]  Recently, in Dobbs v. Jackson Women’s Health Organization, the Court overruled precedent recognizing a right to abortion despite the country adapting to that right for decades.[14]  And with respect to Miranda, Justice Alito questioned whether the Court had the authority to issue Miranda in the first place:

Whether this Court has the authority to create constitutionally based prophylactic rules that bind both federal and state courts has been the subject of debate among jurists and commentators. . . . But that is what the Court did in Miranda, and we do not disturb that decision in any way. Rather, we accept it on its own terms, and for the purpose of deciding this case, we follow its rationale.[15]

The Court’s second-guessing of its own authority, together with restricting that authority and the authority of other branches of government unless a statute or the Constitution clearly allows it, is an emerging theme that may very well guide future cases before the current Court.

Second, there is the issue of stare decisis and when, if ever, precedent should be overruled.  Stare decisis is the idea that “today’s Court should stand by yesterday’s decisions” because respecting precedent is a “foundation stone of the rule of law.”[16]  The doctrine arose out of the Framers of the Constitution itself – it is a doctrine that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.”[17]  Stare decisis does not mean that prior cases can never be overturned.  The doctrine permits that practice, but in so doing, reserves such a drastic change for the rarest of cases.

Recent developments suggest that the Court’s disagreement with prior case law could place well-settled understandings of law in question.  Justice Alito, for example, questioned the Court’s authority to issue Miranda, which had become part of the “national culture,” in a footnote (quoted above), even though that question was likely not directly related to the question before the Court or dispositive of any legal issue, thereby raising questions about whether the Court would reconsider Miranda itself in a future case.[18]  The Court’s recent decision in Dobbs, which recognized how abortion had become part of American life for nearly five decades, also signaled the Court’s willingness to discard established precedent because, in the Court’s view, the prior decision was “wrong.”[19]  If stare decisis is the bedrock of our legal system and a closely guarded foundation of the rule of law, the current Court may be poised to expand upon when and in what cases future jurists can use their disagreement with prior cases to disturb settled precedent – which, as a consequence, could open up large swaths of cases to reexamination when they were once thought to be untouchable.

The issue before the Court in Vega was narrow, and the Court’s decision was undoubtedly a win for government officials.  But placing Vega in context and considering the direction of the Court could mean that Vega, as in other cases over the past two terms, is another iteration of a Court that will not hesitate to check the government’s (including its own) authority, even if doing so means overruling decades of precedent that, at least for the current generation, has always been the law. 

[1] Dickerson v. United States, 530 U.S. 428, 443 (2000).

[2] Miranda v. Arizona, 384 U.S. 436 (1966).

[3] See id. at 443–44 (“Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now . . . .”).

[4] 42 U.S.C. 1983

[5] See Monroe v. Pape, 365 U.S. 167, 173–80 (1961) (“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.”).

[6] Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975)

[7] See Coley v. Lucas Cnty., 799 F.3d 530 (6th Cir. 2015).  The plaintiffs later accepted an offer of judgment and received an award of over $1.2 million.  See Coley v. Lucas Cnty., Case No. 3:09-CV-00008 (S.D. Ohio), Doc. No. 192.

[8] Ray v. McCloud, 507 F. Supp. 3d 925, 928 (S.D. Ohio 2020); see also J. Burns & S. Brinker, “Federal Judge Confirms Transgender Ohio Residents Are Entitled to Accurate Birth Certificates,” available at https://www.dinsmore.com/justin-m-burns/publications/federal-judge-confirms-transgender-ohio-residents-are-entitled-to-accurate-birth-certificates/ (last accessed July 11, 2022).

[9] Wyatt v. Cole, 504 U.S. 158, 161 (1992).

[10] See generally, Brief of Amici Curiae Historians of Criminal Procedure, Vega v. Tekoh.

[11] Vega v. Tekoh, ___ U.S. ____, 29 Fla. F. Weekly Fed. S. 421 (2022).

[12] Id.

[13] AMG Capital Mgt., LLC v. FTC, ___ U.S. ____, 141 S. Ct. 1341 (2021).

[14] Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___ 2022), 2022 U.S. LEXIS 3057, at *22 (2022).

[15] Vega, __ S.Ct. at fn. 5.

[16] Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015) (quotation omitted).

[17] Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1411 (2020) (quotation omitted).

[18] Dickerson, 530 U.S. at 443.

[19] Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___ 2022), 2022 U.S. LEXIS 3057, at *22 (2022).