Warning You Of Your Right To Remain Silent Is Not A Right After All

• Published date: 19 July 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Dinsmore & Shohl
• Author: Justin M. Burns and Brady R. Wilson

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. Arizona² 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 students⁶; holding prison guards liable for using excessive force that caused death in the Toledo, Ohio area⁷; and challenging the Ohio Department of Health's refusal to change sex markers on birth certificates for transgender persons⁸.

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...