Publications

Greetings, Court Fans!

While the world continued to react Friday’s decision in Dobbs, The Nine were back this morning with three more:

• In Kennedy v. Bremerton School District (No. 21-418), a 6-3 Court held that the Free Exercise and Free Speech Clauses of the First Amendment protected a high school football coach from being disciplined for demonstratively praying on the field after games;

• In Concepcion v. United States (No. 20-1560), Justices Thomas and Gorsuch joined with the Court’s three liberals to hold that the First Step Act gives district courts the authority to consider intervening changes in law or facts in exercising their discretion to reduce a sentence under the Act;

• And in Ruan v. United States (No. 20-1410), the Court unanimously held that in order to convict a doctor for dispensing a controlled substance in an unauthorized manner, the government must prove beyond a reasonable doubt that the doctor knew the prescription was not for a legitimate medical purpose.

That leaves four more cases to be decided before the Court ends its term this week. We expect those stragglers Wednesday or Thursday. For now, we’ve got summaries of last week’s decisions in Vega v. Tekoh (No. 21-499) and Nance v. Ward (No. 21-439), both of which address the scope of the federal civil-rights statute, 42 U.S.C. § 1983.

First up, Vega, which held that a violation of the so-called Miranda rules does not provide a basis for a claim under Section 1983 because the rights promoted by Miranda are not “secured by the Constitution.”

The facts of Vega are straightforward. Terrence Tekoh, a nursing assistant, was accused by a patient of sexual assault. A deputy sheriff questioned Tekoh about the incident, obtaining a potentially incriminating statement. But before doing so, the deputy didn’t inform Tekoh of his rights under Miranda v. Arizona (1966). The trial court nevertheless allowed Tekoh’s statement to be introduced against him at trial. Despite that, a jury acquitted him. Tekoh then sued the deputy and others under Section 1983, alleging that they violated his Fifth Amendment right against self-incrimination. When it came time to instruct the jury, the district court denied Tekoh’s request that the jury be told it could find a violation of the Fifth Amendment merely from the deputy’s failure to give a Miranda warning, reasoning that because Miranda was just a prophylactic rule, Tekoh could only prevail if he proved that the deputy had in fact coerced or compelled his statement. After the jury found in the deputy’s favor, Tekoh appealed. The Ninth Circuit then reversed, holding that the alleged violation of Miranda was itself enough to support Tekoh’s Section 1983 claim.

The Court reversed in a short decision written by Justice Alito and joined by the Court’s five other conservatives. Section 1983 provides a cause of action to those who have been deprived of “any rights, privileges, or immunities secured by the Constitution and laws.” So, per the majority, the determinative question is whether a violation of Miranda amounts to a violation of the Fifth Amendment itself. Alito then distinguished between the core Fifth Amendment right—the right against being compelled to testify against oneself—and mere “prophylactic rules” developed to provide “additional procedural protections” against the violation of that right. Miranda itself treated its rule as purely prophylactic, and every Supreme Court decision since has viewed the case in the same terms. A police officer’s violation of Miranda thus may preclude the State from introducing a statement obtained without a Miranda warning at trial, but it is not itself a violation of the Fifth Amendment.

That did not entirely resolve the case, however, because Section 1983 claims can also be based on the deprivation of any “rights, privileges, or immunities secured by the . . . laws,” not just the Constitution. Even if it’s not part of the Constitution, isn’t Miranda part of federal law? Alito didn’t think so, reasoning that a prophylactic rule extends only as far as is necessary to serve the rule’s purpose, here the goal of minimizing compelled self-incrimination. Because Miranda already forecloses the introduction at trial of a statement obtained in violation of Miranda, there was no “additional deterrent value” (and there would be considerable difficulties) in allowing a Section 1983 claim for Miranda violations.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. In their view, the majority  read Section 1983 too narrowly. The statute is not limited to violations of particular clauses of the Constitution, but rather provides a civil action for violations of rights, privileges or immunities secured by the Constitution. Whether or not one views Miranda as itself part of the Fifth Amendment’s core guarantee or as just a “prophylactic” rule, it indisputably grants defendants legally enforceable entitlements—aka rights—namely, the right to have a statement taken in violation of Miranda excluded at trial. And prior decisions of the Court (chief among them, Dickerson v. United States (2000)) established that Miranda was in no uncertain terms a “constitutional rule,” one that even the federal government could not abrogate by legislation. As a result, the deputy’s alleged violation of Miranda infringed a right of Tekoh’s that was secured by the Fifth Amendment, giving rise to a Section 1983 claim. Justice Kagan went on to reject the majority’s claim that there was no value to recognizing such a claim, pointing out that often times the exclusion of evidence alone would be an insufficient remedy (as in this case, where Tekoh’s un-Mirandized statement was not suppressed).

On to Nance, where the Court grappled with the question of how death-row inmates may challenge a state’s method of execution under the Eighth Amendment when the prisoner proposes an alternative method not authorized under the state’s law. In a 5-4 decision (with the Chief and Justice Kavanaugh joining the Court’s liberals), the Court held that Section 1983, rather than a habeas petition, is the appropriate vehicle for such a claim, a holding that is significant primarily because it avoids the habeas statute’s limits on “second or successive” habeas petitions.

Some background is necessary to set the stage. In 2004, the Court held in Nelson v. Campbell that a prisoner on death row can assert an Eighth Amendment challenge to a state’s proposed method of execution via Section 1983 when the prisoner’s alternative method is already authorized under the executing state’s laws. Then in Bucklew v. Precythe (2019) the Court held that a prisoner bringing a method-of-execution claim is not constrained to the executing state’s laws when identifying an alternative method, but can point as well to methods used in other states. But the Court did not address in Bucklew whether a Section 1983 action was the proper procedural vehicle for asserting such a claim (as it is under Nelson when the alternative method proposed is already authorized under state law). As noted above, this is a significant question, for if a prisoner is permitted to challenge his method of execution through a Section 1983 action, he would not be subject to the limitations of the habeas statute.

Michael Nance was sentenced to death after shooting and killing a bystander while fleeing a bank robbery. After unsuccessfully challenging his conviction and sentence on direct appeal, in state collateral proceedings and then in federal habeas, Nance brought a Section 1983 claim, seeking to enjoin Georgia from killing him via lethal injection (the only authorized method of execution under Georgia law). Instead of lethal injection, which Nance claimed would cause him intense pain and burning due to a medical condition, Nance proposed death by firing squad, an approved execution method in four other states. The district court dismissed Nance’s suit as untimely under the statute of limitations, but the Eleventh Circuit affirmed for a different reason. It construed Nance’s Section 1983 action as a habeas petition, reasoning that Nance was attempting to “invalidate” his death sentence because “if Nance could not be executed by lethal injection, then he could not be executed at all” under Georgia law. Because Nance had already sought (and been denied) habeas relief, the Eleventh Circuit then dismissed the petition as “second or successive” under 18 USC § 2244(b).

The Supreme Court reversed, in a decision written by Justice Kagan. The majority’s analysis applied the standard set forth in Nelson, under which a method-of-execution claim can be brought only via habeas where granting the prisoner relief “would necessarily prevent [the state] from carrying out its execution.” While Georgia would have to change its laws in order to carry out Nance’s execution by firing squad, Justice Kagan concluded that this did not mean that it was “necessarily” prevented from executing him. Though enacting legislation may take some time and effort, such incidental delay had no bearing on whether the requested relief would “necessarily” invalidate Nance’s death sentence. Kagan faulted the Eleventh Circuit for treating Georgia’s statute as “immutable,” when it was not. Indeed, the Court noted that Section 1983 claims “not uncommonly” require changing state law, even when the relief granted may require a new statutory appropriation for the prison (such as hiring more doctors). And in fact, Georgia had a track record of enacting changes to its execution method. Because Nance’s method-of-execution claim “challenges not the validity of a death sentence, but only the State’s mode of carrying it out,” it is properly regarded as a Section 1983 claim. The contrary holding would cause “the vagaries of state law” to determine the vehicle for a prisoner’s claim and, in turn, the viability of the claim. What’s more, in many instances it would be almost impossible to assert a method-of-execution claim through habeas because such a claim typically postdates an initial habeas claim by many years and would thus be barred by AEDPA’S second-or-successive bar.

Finally, Kagan addressed the concern that inmates might use Section 1983 method-of-execution suits as a delay method. She warned that the Court “do[es] not for a moment countenance ‘last-minute’ claims relied on to forestall an execution,” but noted that courts remain free to police such dilatory tactics and that Section 1983 itself incorporates state statutes of limitations. Indeed—and unfortunately for Nance—the district court in this very case had already found Nance’s claim to be time-barred. 

Justice Barrett dissented, joined by Justices Thomas, Alito, and Gorsuch. In her view, the majority “is looking too far down the road.” Instead, the Court should “take state law as we fine it” and conclude that “the consequence of the relief that a prisoner seeks depends on state law as it currently exists.” Because there is no question that Nance’s preferred method of execution is not currently permitted by Georgia law (and because he objects to the sole method that is permitted), “Nance’s challenge necessarily implies the invalidity of his legally injection sentence: He seeks to prevent the Sate from executing him in the only way it lawfully can.” The only proper way of challenging the method of execution, therefore, is through a habeas petition. Justice Barrett brushed aside the majority’s concerns about prisoners’ entitlement to constitutional relief turning on the “vagaries of state law.” In her view, that sort of variability is an “unremarkable consequence of federalism: States make different choices in exercising their power to define punishment, and the law has long recognized a sovereign’s interest in mandating a particular form of capital punishment.” And while she understood “the impulse to find a way out of habeas and into § 1983”—particularly given the second-or-successive bar problem—Barrett insisted that “the unavailability of federal habeas relief does  not justify recourse to § 1983.”

With that, we’ll break for the day. But we’ll be back soon with summaries of this morning’s decisions.

Dave and Tadhg