As I read the 5th Circuit’s decision, the court rules that (a) retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment, (b) retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment, and (c) such retaliation doesn’t violate the Fifth Amendment.

The court’s Fifth Amendment ruling strikes me as missing some complications, and I thought I would blog about why I think it’s a tricky issue.

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I. The facts and ruling

In the case, the plaintiff, Lionel Alexander, was pulled over and declined to answer police questions. According to his complaint, which at this stage of the case the court assumes is accurate (but may not be — that’s a factual question to be developed later), the police conduct was seriously out of control. Specifically, Alexander claims that the police retaliated against Alexander’s refusal to answer their questions by ordering him out of his car and then “pinn[ing] him face down onto the ground.” Several officers joined in, with “one officer press[ing] a boot or knee on the back of Alexander’s neck as his face was mashed into the concrete.” The police then handcuffed him, and an officer asked, “Are you ready to talk to me now?” Alexander responded with an expletive, which led the police to shackle his legs. Amazingly, at that point the officers arrested Alexander. The precise basis for the arrest is a little bit murky. But at least as it was written up in the police report, Alexander was arrested for obstructing a police officer.

Alexander filed a civil suit against the officers and the municipality (collectively, “the officers”). The district court rejected the civil suit, and the 5th Circuit reversed in part and affirmed in part, in an opinion by Judge Edith Brown Clement joined by Judge Jerry Smith and Judge Leslie Southwick.

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The 5th Circuit’s new decision makes several rulings against the officers in the case. It rules that Alexander has stated a Fourth Amendment claim for unlawful detention and arrest; that qualified immunity should not apply to those claims; and that Alexander has stated a claim for excessive force.

That all seems correct to me. But I was more interested in the court’s rulings in the officers’ favor, specifically on Alexander’s retaliation claim. Alexander claimed that the officers retaliated against him for refusing to speak to them. According to Alexander, the officers’ retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit ruled that any retaliation could not violate Alexander’s Fifth Amendment right and that any First Amendment claim was barred by qualified immunity.

II. The retaliation claims

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Let’s look more specifically at the courts’ reasoning on the retaliation claims. Here’s the court rejecting the Fifth Amendment claim:

Alexander’s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza’s questions is easily disposed of. As this court has noted on multiple occasions, “[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F. Supp. 2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated.

And here’s the discussion of the First Amendment claim, with most citations omitted:

We hold that Alexander’s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer’s questions during a Terry stop.” Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011). Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly on point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer’s questions during a stop like the one at issue here. One court summarized the issue well: “Plaintiffs contend that they can state such a First Amendment retaliation claim because Defendants retaliated against them for exercising their right not to speak. However, this right not to speak has been limited to the context of government-compelled speech with respect to a particular political or ideological message. Plaintiffs cite no authority to support the application of the First Amendment protection against government-compelled ideological or political speech into the context of police interviews.” It is instructive that Alexander points to no case supporting the contention that there is a clearly established First Amendment right not to answer an officer’s questions during a traffic stop. We therefore conclude that the officers are entitled to qualified immunity on Alexander’s First Amendment retaliation claim.

I’ll leave it to the First Amendment experts to weigh in on that claim (calling Eugene!). But I did want to focus on the Fifth Amendment claim, as I think it is more complicated than the court’s short analysis suggests.

III. The three versions of the Fifth Amendment

Here’s the problem. Much to the confusion of students of criminal procedure, the Fifth Amendment right against self-incrimination has been interpreted by the Supreme Court in three different ways to do three different things.

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The first Fifth Amendment right against self-incrimination is what you might call the classic Fifth Amendment right against self-incrimination. The law can’t force you to speak in a way that might subject you to criminal liability. When a person is being compelled to say something that might make them admit to committing a crime, they must “plead the Fifth” and a judge can then rule on whether the privilege applies. If the right is not asserted before the statement is made, the right normally is waived.

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The second Fifth Amendment right against self-incrimination is a right to the suppression of coerced statements in a later criminal proceeding. If the government interrogates you and you confess, the confession can be thrown out if it was not voluntary. This is an old common-law voluntariness standard that was later construed as part of the Fifth Amendment’s due process requirement. See, e.g., Jackson v. Denno, 378 U.S. 368, 376 (1964) (“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession[.]”). Although most of the cases construing this right view it as part of the due process clause, some case law also (confusingly) grounds this right in the Fifth Amendment right against self-incrimination. See, e.g., Chavez v. Martinez, 538 U.S. 760 (2003); Dickerson v. United States, 530 U.S. 428, 433-34 (2000).

The third right is the Miranda v. Arizona right, which is a broader right in custodial interrogation to be given warnings and to be able to stop questioning if you ask for a lawyer or instruct that you wish to remain silent. The Supreme Court says that this is a “prophylactic” on the underlying Fifth Amendment right. There are dozens of Supreme Court cases on this right, and essentially they treat Miranda rights as a separate set of rights inspired by the traditional right against self-incrimination but also separate from it. See generally Dickerson v. United States, 530 U.S. 428 (2000).

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Importantly, these are three distinct rights that are all justified by the same constitutional text that no person “shall be compelled in any criminal case to be a witness against himself.” The first is a right a person can assert not to be compelled by threat of legal punishment to say something that would expose them to criminal liability. The second is a right not to have forced confessions admitted in a criminal proceeding. The third is a right to get warnings in custody and to be able to call off interrogations. They’re all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But they’re three distinct rights with three distinct histories.

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IV. The Fifth Amendment analysis in Alexander

Now back to the Alexander case. The court’s statement that the Fifth Amendment applies only in custodial interrogation is only about the third of these rights, the Miranda right. But this case doesn’t involve a Miranda claim, so I don’t think that can be a strong basis for the court’s ruling.

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Admittedly, exactly how to classify Alexander’s Fifth Amendment claim isn’t at all clear. That’s why I think the case is tricky. Is it a classic Fifth Amendment claim, in which Alexander was refusing to comply with officers’ questions despite state law that (the officers seemed to think, at least) required him to cooperate? Or is it more of a claim about the second kind of Fifth Amendment right? It’s true that there was no trial against Alexander, and maybe that ends the matter under the second type of claim under Chavez. But at the very least, it seems important to realize that there is a lot more to the Fifth Amendment merits than just Miranda case law.

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More broadly speaking, the facts of Alexander bring up some real tension in cases like Miranda, Salinas v. Texas, and United States v. Okatan about what the “right to remain silent” actually means. Miranda speaks broadly of the right, suggesting it is part of the Fifth Amendment and that you never have to answer police questions. Salinas says you have the right to remain silent but you have to invoke it first. Okatan says that if you did invoke it, the government can’t comment at trial on the fact that you refused to answer questions.

Alexander seems to have invoked his right properly, and at least according to the complaint he was punished for doing so. It may be that the Fifth Amendment has nothing to say with that: As long as Alexander wasn’t prosecuted, maybe the government can retaliate against him for not speaking so long as it does so within Fourth Amendment bounds in terms of detaining him and using force. Maybe the idea that you have a “right to remain silent” is itself inaccurate, as you have much more limited rights than such a broad phrase would suggest. But my sense is that there are difficult issues lurking in the court’s Fifth Amendment ruling that didn’t come out in the short passage in the opinion.