Chavez v. Robinson, No. 18-36083 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's dismissal of plaintiff's 42 U.S.C. 1983 action alleging that his constitutional rights were violated when, as a condition of his supervised release and while his appeal of his conviction was pending, he was required to complete a sex offender treatment program, and then was discharged from the program and given a limited jail sanction for refusing to admit to the conduct underlying his conviction, a required part of his treatment.
The panel held that it was bound by the rule adopted by six justices in Chavez v. Martinez, 538 U.S. 760, 770 (2003) (plurality opinion), as enunciated in this court's precedent, and consistent with the rule adopted by sister circuits—that the Fifth Amendment is not violated unless and until allegedly coerced statements are used against a suspect in a criminal case. The panel concluded that because plaintiff did not make a statement that was used in a criminal proceeding, he may not bring a civil action against the government under section 1983 for a violation of his Fifth Amendment right against self-incrimination. Accordingly, the panel affirmed the district court's dismissal of this claim. The panel also affirmed the dismissal of plaintiff's claims alleging that the government officials involved in this incident violated plaintiff's Sixth Amendment right to counsel and his First Amendment right to bring a civil lawsuit against the government.
Court Description: Civil Rights. The panel affirmed the district court’s dismissal of a complaint brought pursuant to 42 U.S.C. § 1983 by Daniel Chavez alleging that his constitutional rights were violated when, as a condition of his supervised release and while his appeal of his conviction was pending, he was required to complete a sex offender treatment program, and then was discharged from the program and given a limited jail sanction for refusing to admit to the conduct underlying his conviction, a required part of his treatment. Chavez brought suit for damages against his probation officer and the director of the therapy program alleging defendants violated his rights under the Fifth Amendment and Fourteenth Amendment by requiring him to admit to the conduct underlying his conviction; violated his Sixth Amendment right to counsel; and violated his First Amendment right to free speech by dismissing him from treatment after he filed the pending lawsuit. Addressing Chavez’s claim that defendants violated his Fifth Amendment right against self-incrimination, the panel stated that the claim required consideration of the distinction between the core constitutional right protected by the Self- Incrimination Clause and the prophylactic rules designed to safeguard that right. The panel held that it was bound by the rule adopted by six justices in Chavez v. Martinez, 538 U.S. CHAVEZ V. ROBINSON 3 760, 770 (2003) (plurality opinion), as enunciated in this court’s precedent, and consistent with the rule adopted by sister circuits—that the Fifth Amendment is not violated unless and until allegedly coerced statements are used against a suspect in a criminal case. Because Chavez did not make a statement that was used in a criminal proceeding, he could not bring a civil action against the government under § 1983 for a violation of his Fifth Amendment right against self- incrimination. Thus, the panel held that Chavez’s claim was based on a violation of the judge-made protection from being forced to give incriminating testimony. Because this privilege is a prophylactic rule designed to safeguard the core constitutional right protected by the Self-Incrimination Clause rather than the core constitutional right itself, Chavez could use the privilege only defensively as a shield and could not wield it as a sword in an action for damages. Addressing defendants’ contention that they were entitled to qualified immunity as to the Fifth Amendment claim, the panel stated that the analysis raised some close questions. The panel noted that under United States v. Antelope, 395 F.3d 1128, 1139 (9th Cir. 2005), state officials may not impose sanctions on a sex offender for failure to make incriminating statements as part of a treatment program, where the officials expressly decline to offer immunity and insist that a sex offender’s statements can be used in subsequent criminal proceedings. In Antelope, the court reversed the revocation of a sex offender’s supervised release. Rather than decide whether Antelope clearly established a rule that applied to defendants in this somewhat different context, the panel deemed it prudent to rely on its holding that Chavez’s Fifth Amendment claim could not proceed in the absence of the use of a coerced statement in a criminal 4 CHAVEZ V. ROBINSON proceeding, and so the panel did not reach the second prong of the qualified immunity analysis. The panel next rejected Chavez’s claim that defendants violated his Sixth Amendment rights by denying him counsel at a critical stage. Chavez argued that defendants’ refusal to allow him to consult his attorney before making admissions was in effect a complete deprivation of counsel at the critical stage of determining whether to appeal or withdraw an appeal. The panel held that even assuming that a decision to withdraw an appeal is a critical stage, Chavez was not denied access to counsel for that purpose. Nor did any precedent support Chavez’s argument that his meeting with defendant Robinson for sex therapy treatment was a critical stage of his appeal. Moreover, the panel stated that this court’s precedent made clear that the Sixth Amendment has no application to supervised release proceedings. Because no existing precedent established that a prisoner who is prevented from contacting counsel during sex offender treatment has been denied counsel on appeal, defendants were also entitled to qualified immunity on this claim under the second prong of the qualified immunity analysis. Finally, the panel held that Chavez had not identified any case holding that a convicted sex offender participating in a treatment program as a condition of probation or supervised release is entitled to counsel before complying with the requirement (typical of such programs) to admit the conduct underlying the conviction, even if such admission has the potential to prejudice a potential retrial after a successful appeal. Accordingly, defendants were entitled to qualified immunity on the Sixth Amendment right to counsel claim. Addressing Chavez’s claim that defendants violated his First Amendment right by terminating him from the sex CHAVEZ V. ROBINSON 5 offender treatment program and revoking his supervision in retaliation for his lawsuit, the panel held that defendants were entitled to qualified immunity. Chavez cited no case holding that a person providing rehabilitation therapy for a supervised releasee may not discharge the releasee from the program in response to a lawsuit. Concurring in part in the judgment and dissenting in part, Judge Berzon stated that Chavez was compelled in a criminal case to be a witness against himself and imprisoned because he would not be, violating his Fifth Amendment rights and giving rise to a cause of action under § 1983. On the record viewed most favorably to Chavez, defendants violated a well- established prohibition on incarcerating a parolee for failing to incriminate himself, recognized in Antelope, 395 F.3d at 1139; Chavez could sue for damages under § 1983 for that violation; and Chavez’s Fifth and Fourteenth Amendment claim was not barred by qualified immunity. Judge Berzon therefore dissented from the majority’s Fifth Amendment § 1983 holding. Judge Berzon also wrote separately to address the majority’s reasoning on Chavez’s Sixth Amendment claim. To the extent the majority reached the merits (which was not clear), she disagreed with the majority’s assertion that Chavez’s Sixth Amendment claim failed because he had access to counsel at other stages of his appeal and because the Sixth Amendment did not apply to supervised release proceedings. These arguments mischaracterized Chavez’s claim: that he had a right to consult with counsel about waiving his Fifth Amendment privilege while his appeal was still pending. Judge Berzon agreed, however, that there was no clearly established law on whether Chavez had a right to consult with counsel under the circumstances, and so 6 CHAVEZ V. ROBINSON concurred in holding that Chavez’s Sixth Amendment claim was barred by qualified immunity.
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