Sheriff?s Dep?t Did Not Violate Constitution by Punishing Deputies for Refusing to Give Statements for Internal Criminal Investigation into Their Conduct.

Plaintiffs,? four? L.A.? County? Sheriff?s? deputies, were instructed to wait at the police station at the end of their shift to be interviewed by internal affairs officers as part of a criminal investigation into excessive force allegations.?? After about 3? hours of waiting, the deputies were asked questions but declined to answer them on advice of counsel. The deputies were reassigned from patrol to station duties pending completion of the investigation. ?A year ?later,? the ?district ?attorney ?compelled statements but did not ask that they waive their constitutional? right? to? immunity? for? their statements in a criminal proceeding. ?Within days, the deputies were cleared of wrongdoing.?? They were? never? criminally? charged,? and? their? duties were restored. ?The deputies brought section 1983 claims against their superiors challenging their initial detention to answer questions and their punishment for failing to give non-privileged statements.? ?They alleged unreasonable seizure under the Fourth Amendment for being told to wait in the office to be interviewed, violation of Fifth Amendment due process for having to choose between their right against self-incrimination and their employment, and that Fourteenth Amendment substantive? due? process? was? violated.? ?The? trial court? granted? summary? judgment? for? the defendants on all claims. ?On a 2-1 vote, the Ninth Circuit affirmed.?? ?The Court of Appeals explained:?? ??When determining whether a superior law enforcement officer ?seized? a subordinate, we must glean from the circumstances whether the subordinate?s decision to heed his superior?s order to remain at a designated location stemmed from a fear if he tried to leave, of physical detention, or merely adverse employment consequences.??? Weighing several facts, the Court held it was the latter. ?An employer? ?may? not? seize? its? employees? and detain them against their will without probable cause.??? Nevertheless, ?the Fourth Amendment does not protect against the threat of demotions or job loss? and ?we hold that a law enforcement agency has the authority as an employer to direct its officers to remain on duty and to answer questions from supervisory officers as part of a criminal investigation into the subordinates? alleged misconduct.??? ?Rejecting the self- incrimination claim, the Ninth Circuit relied on its finding that ?the deputies were not compelled to answer the investigator?s questions or to waive their immunity from self-incrimination? and that no self-incriminating statement was ever used against them in a criminal proceeding?sine qua non for a claim. ?Finally, the majority dispatched the substantive due process claim with little discussion, concluding that the transfer from patrol to station duties did not meet constitutional standards to establish a claim.? ?In a lengthy dissent, Judge Kozinski saw the evidence very differently, concluding there may have been an illegal seizure because there was no probable cause and it was a disputed fact whether a reasonable person would have believed she was free to go.? ?And, he recognized the Fifth Amendment ?claim? as ?one ?for ?retaliation, ?on which a jury could find liability because ?defendants played cat and mouse with plaintiffs for 12 months, forcing plaintiffs to guess whether any statements they gave could be used to prosecute them,? improperly putting economic pressure on them to give up their right against self-incrimination.?? ?Aguilera ?v. ?Baca, ?No. ?05-6617 (Dec. 27, 2007, Kozinski, Kleinfeld, Tallman)