No. 16-832

IN THE

United States Court of Appeals for the Ames Circuit

_______________________________________________

AUSTIN FERRIS,

Plaintiff-Appellant,

v.

MARTIN BUELLER, IN HIS INDIVIDUAL CAPACITY AND HIS OFFICIAL CAPACITY AS BORK CITY MANAGER, AND

BRADLEY STEIN, IN HIS INDIVIDUAL CAPACITY,

Defendants-Appellees. _______________________________________________

On Appeal from the United States District Court for the District of Ames

No. 16-cv-957 _______________________________________________

REPLY BRIEF FOR THE PLAINTIFF-APPELLANT _______________________________________________

The Fred T. Korematsu Memorial Team FREDERICK J. DING L. VIVIAN DONG HENRY DRUSCHEL LYDIA LICHLYTER March 21, 2017, 6:15 PM RAEESA I. MUNSHI Ames Courtroom WILLIAM SCHMIDT Harvard Law School

Counsel for Plaintiff-Appellant Oral Argument

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................ iii

INTRODUCTION .................................................................................. 1

ARGUMENT ........................................................................................... 3

I. The Favorable-Termination Rule Does Not Bar Ferris’s § 1983 Claim. ................................................................................ 3

A. Ferris’s § 1983 claim would not necessarily imply the invalidity of his conviction, so favorable termination is not required. .............................................................................. 3

1. Fifth Amendment violations do not always imply the invalidity of later convictions. ....................................... 3

2. A guilty plea can sustain a conviction even when there is a preceding Fifth Amendment violation. ................ 4

3. A § 1983 claim only implies the invalidity of a guilty plea if it contradicts the factual basis for the resulting conviction. ............................................................. 5

4. A constitutional defect in the issuance of the summons would not imply the invalidity of Ferris’s conviction. ............................................................................ 6

B. Precedent suggests that the favorable-termination rule should not be extended to apply to plaintiffs who, like Ferris, were never eligible for habeas. ..................................... 7

1. The Supreme Court has left open whether the favorable-termination rule applies to habeas-ineligible § 1983 plaintiffs. .................................................. 7

2. Defendants incorrectly suggest that the majority of circuits categorically apply the favorable-termination rule to habeas-ineligible plaintiffs. ................. 8

3. Ferris’s failure to appeal within Ames’s fourteen-day window should not bar his claim. ....................................... 9

ii

4. Ferris’s claim requires only that this Court decline to extend the favorable-termination rule to plaintiffs who were never eligible for habeas. ................................... 10

C. The favorable-termination rule should not apply in a way that would deprive Ferris of a federal forum to vindicate his federal rights. .................................................... 11

II. Defendants’ Use of Ferris’s Statement Violated His Fifth Amendment Right Against Self-Incrimination. ................ 12

A. The core of the right against self-incrimination is the use of a compelled statement in a criminal case. .................. 12

B. Defendants’ confusion of the Fifth Amendment right with the privilege against self-incrimination results in an arbitrarily limited definition of “criminal case.” .............. 13

C. Text and precedent support a distinction between pre-charge and post-charge judicial hearings, not one between custodial and noncustodial hearings. ...................... 15

D. Courts distinguish between self-incrimination and substantive due process claims. ............................................. 17

E. Ferris’s proposed rule provides an administrable definition of “criminal case” that is grounded in the constitutional text. .................................................................. 17

CONCLUSION ..................................................................................... 19

iii

TABLE OF AUTHORITIES

CASES

Allen v. McCurry, 449 U.S. 90 (1980) .................................................... 11

Best v. City of Portland, 554 F.3d 698 (7th Cir. 2009) .......................... 15

Bishop v. County of Macon, 484 F. App’x 753 (4th Cir. 2012) .............. 10

Boykin v. Alabama, 395 U.S. 238 (1969) ................................................. 4

Burd v. Sessler, 702 F.3d 429 (7th Cir. 2012) ....................................... 10

Carr v. O’Leary, 167 F.3d 1123 (7th Cir. 1999) ...................................... 9

Chavez v. Martinez, 538 U.S. 760 (2003) .................................. 12, 13, 16

Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006) ............................... 6, 10

Heck v. Humphrey, 512 U.S. 477 (1994) ......................................... passim

Hill v. Murphy, 785 F.3d 242 (7th Cir. 2015) ..................................... 3, 5

Kastigar v. United States, 406 U.S. 441 (1972) .................................... 13

McMann v. Richardson, 397 U.S. 759 (1970) ......................................... 4

Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271 (11th Cir. 2010) ............................................................................. 9, 10

Muhammad v. Close, 540 U.S. 749 (2004) .............................................. 7

Murray v. Earle, 405 F.3d 278 (5th Cir. 2005) ...................................... 17

Neder v. United States, 527 U.S. 1 (1999) ............................................... 3

Ove v. Gwynn, 264 F.3d 817 (9th Cir. 2001) ........................................... 4

Parker v. North Carolina, 397 U.S. 790 (1970) ....................................... 4

Powers v. Hamilton Cty. Pub. Defender Comm’n, 501 F.3d 592 (6th Cir. 2007) ............................................................. 10

Reilly v. Herrera, 622 F. App’x 832 (11th Cir. 2015) ............................ 10

Renda v. King, 347 F.3d 550 (3d Cir. 2003) .......................................... 17

Sornberger v. City of Knoxville, 434 F.3d 1006 (7th Cir. 2006) ...... 15, 17

Spencer v. Kemna, 523 U.S. 1 (1998) ....................................................... 9

Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009) ..................... 15, 17

Tollett v. Henderson, 411 U.S. 258 (1973) ............................................... 4

Vogt v. City of Hayes, 844 F.3d 1235 (10th Cir. 2017) .................... 15, 16

Williams v. California Department of Corrections, 103 F. App’x 641 (9th Cir. 2004) ........................................................ 9

iv

STATUTES

Kan. Stat. Ann. § 22-2902(3) ................................................................. 16

RULES

Fed. R. Crim. P. 9 ..................................................................................... 7

Fed. R. Crim. P. 58(b)(1) .......................................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ....................................................................... 14, 18

TREATISES

4 Wayne R. LaFave et al., Criminal Procedure § 14.1(a) (4th ed. 2015) ...................................................................................... 7

1

INTRODUCTION

In the absence of binding precedent, circuit courts must apply to

novel situations the principles established by the Supreme Court.

Defendants attempt to tie this Court’s hands, relying on a narrow and

mechanical view of the law to suggest that any development not

already advanced by the Supreme Court would be impermissible.

Ferris is not asking this Court to rewrite the law of § 1983 or the

Fifth Amendment. He simply asks that the principles that have guided

courts in the past govern this case as well.

2

3

ARGUMENT

I. THE FAVORABLE-TERMINATION RULE DOES NOT BAR FERRIS’S § 1983 CLAIM.

A. Ferris’s § 1983 claim would not necessarily imply the invalidity of his conviction, so favorable termination is not required.

1. Fifth Amendment violations do not always imply the invalidity of later convictions.

Ferris is only required to attain favorable termination if “a

judgment in [his] favor . . . would necessarily imply the invalidity of his

conviction or sentence.” Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Defendants assert that “a Fifth Amendment violation”

necessarily implies the invalidity of “an outstanding conviction based

upon a coerced confession, because the two are incompatible.” Appellee

Br. 17 (citing Hill v. Murphy, 785 F.3d 242, 245 (7th Cir. 2015)). But the

single case they cite in support of this proposition shows the opposite,

recognizing two § 1983 claims that alleged Fifth Amendment violations

because those violations were deemed not necessary to the conviction.

Murphy, 785 F.3d at 245–46. A “violation of the Fifth Amendment’s

guarantee against self-incrimination” may be “harmless” to the validity

of an underlying conviction. Neder v. United States, 527 U.S. 1, 18

(1999).

4

2. A guilty plea can sustain a conviction even when there is a preceding Fifth Amendment violation.

On appeal or collateral attack, a court can sustain a conviction

based on a voluntary and intelligent guilty plea even if it finds that the

plea was motivated by an antecedent Fifth Amendment violation. See

McMann v. Richardson, 397 U.S. 759, 767 (1970), cited in Appellant Br.

15; Tollett v. Henderson, 411 U.S. 258, 267 (1973); Parker v. North

Carolina, 397 U.S. 790, 796–97 (1970). A finding of a Fifth Amendment

violation therefore does not necessarily imply the invalidity of a

conviction obtained with a guilty plea. Defendants argue that, because

Ferris reserved the right to challenge his conviction on appeal or

collateral attack, the conviction is now “vulnerable to invalidation” by

this § 1983 suit. Appellee Br. 16. However, the inquiry Heck prescribes

is not whether a past challenge could hypothetically have invalidated

the conviction, but whether the present § 1983 action would

“necessarily imply” the invalidity of the conviction. Heck, 512 U.S. at

487. A finding that Ferris’s right against self-incrimination was

violated at the pretrial hearing would not necessarily imply the

invalidity of his subsequent “knowing and voluntary” plea, J.A. 18, and

a guilty plea “is itself a conviction; nothing remains but to give

judgment and determine punishment.” Boykin v. Alabama, 395 U.S.

238, 242 (1969). Ferris’s plea is sufficient to sustain his conviction. See

Ove v. Gwynn, 264 F.3d 817, 823 (9th Cir. 2001) (holding that a § 1983

5

suit “would not necessarily imply the invalidity of [the plaintiffs’]

convictions” because “[t]heir convictions derive from their pleas, not

from verdicts obtained with supposedly illegal evidence” (emphasis in

original)).

3. A § 1983 claim only implies the invalidity of a guilty plea if it contradicts the factual basis for the resulting conviction.

While Defendants are correct that “courts regularly and ably

apply Heck” in cases “where the underlying conviction resulted from a

guilty plea,” Appellee Br. 15 (citing Murphy, 785 F.3d at 247), they fail

to recognize that Heck’s favorable-termination rule only applies in

cases where “an element of [the] conviction would be negated” by the

alleged constitutional violation, Murphy, 785 F.3d at 248. In Murphy,

the plaintiff alleged two distinct Fifth Amendment violations: one that

occurred when he was coerced into making a false statement to federal

officers — the crime of which he was convicted — and an another when

he was coerced into confessing to that crime. Id. His § 1983 claim on

the coercion of the false statement itself was barred by Heck, as success

on the claim would have negated an element of the crime. Id. at 246.

But his claim on the coercion of the confession was not barred, as the

confession was merely evidence of the crime and not an element of it.

Id.

Success on Ferris’s § 1983 claim cannot negate an element of his

crime, as the claim does not attack any of the facts underlying his

6

offense. He does not allege, for example, that he was coerced into

possession of marijuana. A finding in Ferris’s favor would therefore not

necessarily imply the invalidity of his resulting conviction. See also

Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (barring under

Heck only those claims in a § 1983 suit on which the plaintiff could not

prevail “unless he were innocent of the crimes for which he was

convicted”), cited in Appellee Br. 15.

Courts draw this distinction in an effort to avoid “the possibility

of inconsistent verdicts based on the same underlying factual scenario.”

Appellee Br. 14; see also Heck, 512 U.S. at 484–85. No such possibility

exists in this case. Ferris’s conviction was based on facts that he does

not contest; there is no inconsistency between his possession of

marijuana in April and Defendants’ violation of his Fifth Amendment

rights through the use of his compelled confession in May, see J.A. 9–

10.

4. A constitutional defect in the issuance of the summons would not imply the invalidity of Ferris’s conviction.

Ferris’s statement was used to obtain a warrant and summons,

and this claim alleges the unconstitutionality of that use. Defendants

argue that success on this claim, by undermining the summons, would

imply the invalidity of his conviction. Appellee Br. 14. This argument

appears to confuse a summons with a charging instrument. A

summons — which requires a judicial finding of probable cause —

7

informs the defendant of the charges pending against him and

demands his presence in court. See, e.g., Fed. R. Crim. P. 9. A charging

instrument — here, a misdemeanor criminal complaint, J.A. 10, which

generally requires no such finding1 — is what creates those charges,

see, e.g., Fed. R. Crim. P. 58(b)(1). Success on this § 1983 claim would

impugn the search warrant and summons, which were both issued by a

judge in reliance on Ferris’s compelled statement. But success would

not impugn the charging instrument, the charges it contained, or the

conviction that resulted.

B. Precedent suggests that the favorable-termination rule should not be extended to apply to plaintiffs who, like Ferris, were never eligible for habeas.

1. The Supreme Court has left open whether the favorable-termination rule applies to habeas-ineligible § 1983 plaintiffs.

Defendants claim that the favorable-termination rule “applies to

all § 1983 plaintiffs, regardless of habeas eligibility.” Appellee Br. 17.

But the Supreme Court stated in Muhammad v. Close, 540 U.S. 749

(2004), that it did not intend to “settle the issue” of whether

“unavailability of habeas . . . dispense[s] with the Heck requirement.”

Id. at 752 n.2 (2004) (per curiam). Such a statement would be out of

place if, as Defendants suggest, the Court had settled the issue when it

decided Heck a decade earlier.

1 See 4 Wayne R. LaFave et al., Criminal Procedure § 14.1(a) n.2 (4th ed. 2015) (“[S]tate law generally does not provide a vehicle in misdemeanor cases for a pretrial judicial assessment of whether the prosecution is supported by probable cause.”).

8

To suggest that the Court has foreclosed Ferris’s claim,

Defendants treat Heck’s analogy to the tort of malicious prosecution as

“binding reasoning” that shows that the favorable-termination rule,

like the common-law tort, “does not require the plaintiff to be in

custody.” Appellee Br. 18–19. However, Defendants ignore that the

Supreme Court selected the malicious-prosecution analogy precisely

because of that tort’s connection to custody: in contrast with the other

torts considered by the Court, malicious prosecution “provides damages

for confinement pursuant to legal process.” Heck, 512 U.S. at 484; see

also id. at 486 n.5. In fact, when seeking an analogy, the Court

specifically expressed its intention to find a common-law cause of

action that shared the defining characteristic of the Heck plaintiff’s

claim — incarceration. Id. at 483. The favorable-termination rule

therefore inherits the assumption that the plaintiff was confined, at

least at some point, and had access to habeas as a result. Applying the

favorable-termination rule to a plaintiff who, like Ferris, was never

confined overtaxes the Court’s analogy.

2. Defendants incorrectly suggest that the majority of circuits categorically apply the favorable-termination rule to habeas-ineligible plaintiffs.

Defendants argue that the majority of circuits would bar Ferris’s

claim. Appellee Br. 25. They note that the Seventh, Ninth, and

Eleventh Circuits “do not categorically exempt habeas-ineligible

9

plaintiffs from the favorable-termination requirement.” Appellee Br.

25–26. But it does not follow that those circuits apply Defendants’ rule

and categorically require favorable termination of habeas-ineligible

plaintiffs. The Seventh Circuit stated that “Heck would not be an

obstacle” to a formerly imprisoned plaintiff who “could no longer bring

a habeas corpus proceeding” because the Supreme Court had “cast[]

sufficient doubt on the applicability of Heck” to such cases. Carr v.

O’Leary, 167 F.3d 1123, 1127 (7th Cir. 1999) (citing Spencer v. Kemna,

523 U.S. 1 (1998)). Similarly, the Ninth Circuit in Williams v. California

Department of Corrections, 103 F. App’x 641 (9th Cir. 2004), reversed

the dismissal of a § 1983 action because the plaintiff was “no longer

imprisoned” and “habeas relief may no longer [have been] available.”

Id. at 642 (citing Spencer, 523 U.S. at 18); cf. Morrow v. Fed. Bureau of

Prisons, 610 F.3d 1271, 1272–73 (11th Cir. 2010) (declining to extend

Heck’s rule to a similarly situated plaintiff who was not in custody);

Morrow, 610 F.3d at 1273–74 (Anderson, J., concurring) (emphasizing

unavailability of habeas).

3. Ferris’s failure to appeal within Ames’s fourteen-day window should not bar his claim.

Defendants argue that most circuits would bar Ferris’s claim

because he did not pursue an appeal. Appellee Br. 27. But they cite no

case to show that Ferris’s failure to appeal within the fourteen days

allotted is sufficiently indiligent to bar his present claim. The cases

10

Defendants cite show, at most, that courts may sometimes bar § 1983

claims by plaintiffs who had access to favorable termination for years,

yet neglected to pursue it. See Reilly v. Herrera, 622 F. App’x 832, 833

(11th Cir. 2015) (three years); Burd v. Sessler, 702 F.3d 429, 431 (7th

Cir. 2012) (at least two years); Bishop v. County of Macon, 484 F. App’x

753, 755 (4th Cir. 2012) (three years); Guerrero, 442 F.3d at 705 (three

years). In fact, circuits have allowed claims from plaintiffs who, like

Ferris, had short periods of time to pursue favorable termination. See,

e.g., Powers v. Hamilton Cty. Pub. Defender Comm’n, 501 F.3d 592, 603

(6th Cir. 2007) (no more than thirty days), cert. denied, 555 U.S. 813

(2008); Morrow, 610 F.3d at 1272 (ten days).

4. Ferris’s claim requires only that this Court decline to extend the favorable-termination rule to plaintiffs who were never eligible for habeas.

Heck suggests three categories of § 1983 plaintiffs with a prior

criminal conviction: (1) those who currently have access to habeas, such

as prisoners; (2) those who no longer have access to habeas but once

did, such as former prisoners; and (3) those who never had access to

habeas, such as Ferris. See 512 U.S. at 500 (Souter, J., concurring in the

judgment), cited in Spencer, 523 U.S. at 21 (Ginsburg, J., concurring).

No one disputes that the favorable-termination rule applies to

plaintiffs in the first category. Defendants, however, by referring only to

“habeas-eligible” and “habeas-ineligible” plaintiffs, see, e.g., Appellee Br.

11

17, create the appearance that this Court, in order to grant relief to

Ferris, would have to exclude from Heck’s reach all plaintiffs who do

not have access to habeas at the time of their suits. But Defendants fail

to discern the third category: individuals who were never eligible for

habeas at all. Granting relief to Ferris only requires the modest step of

declining to extend the rule to such individuals.

C. The favorable-termination rule should not apply in a way that would deprive Ferris of a federal forum to vindicate his federal rights.

Defendants argue that Ferris should not be allowed access to a

federal forum, because his situation does not fall into one of the “three

limited circumstances in which a federal forum is guaranteed.”

Appellee Br. 30 (citing Allen v. McCurry, 449 U.S. 90 (1980)). But Allen

concerned a plaintiff who was seeking to relitigate a claim in federal

court after “a full and fair hearing in a state court.” Allen, 449 U.S. at

101. Ferris asks for no such exception; he has yet to litigate this claim

in any court.

Defendants do not sufficiently address Ferris’s arguments for

why he deserves a federal forum, and they neglect the original and

continuing purpose of § 1983.

12

II. DEFENDANTS’ USE OF FERRIS’S STATEMENT VIOLATED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.

Neither side in this case disputes that there are phases of the

“investigatory process,” Chavez v. Martinez, 538 U.S. 760, 766 (2003)

(plurality opinion), outside the scope of a “criminal case” for the

purposes of the Fifth Amendment. See Appellant Br. 40; Appellee Br.

33. Defendants, by acknowledging that the Supreme Court has

recognized Fifth Amendment violations at sentencing proceedings, also

concede that the lower court erred in holding that the Fifth

Amendment is limited to statements admitted at trial. See Appellee Br.

34. The only subject of disagreement between the parties, therefore, is

what set of non-trial proceedings should be regarded as part of a

criminal case. Defendants’ argument that this set should be limited to

trial, certain “trial-adjacent” proceedings, id., and possibly “pretrial

custodial hearings,” id. at 38, is justified neither by the text of the Fifth

Amendment nor case law, and would prove very difficult to administer.

This Court should hold that use of a compelled confession as

evidence at a pretrial judicial hearing is use in a “criminal case,” and

therefore violates the Fifth Amendment.

A. The core of the right against self-incrimination is the use of a compelled statement in a criminal case.

Defendants assert that “the ‘core’ of the [Fifth Amendment]

privilege is trial,” and object to the idea that it applies with equal force

13

at pretrial and trial proceedings. Appellee Br. 34, 38 (citing Chavez, 538

U.S. at 777 (Souter, J., concurring in the judgment)). But neither the

Chavez plurality nor Justice Souter’s concurrence said that the Self-

Incrimination Clause applies differentially across the phases of a

criminal case. Instead, the opinions distinguish between use of

compelled statements in a criminal case and the compulsion of

statements that are not used. Chavez, 538 U.S. at 770 (plurality

opinion); see also id. at 777–78 (Souter, J., concurring in the judgment).

The former violates the “core constitutional right,” while the latter

violates judicially created “prophylactic rules designed to safeguard”

the right, rather than the right itself. Id. at 770. Ferris’s statement was

used, J.A. 10–11; the only question is whether the pretrial judicial

hearing was part of a criminal case.

B. Defendants’ confusion of the Fifth Amendment right with the privilege against self-incrimination results in an arbitrarily limited definition of “criminal case.”

Defendants fail to distinguish between the self-incrimination

privilege — described by the Chavez plurality as a prophylactic rule,

538 U.S. at 770 — and the self-incrimination right itself. For example,

Defendants mistakenly state that Kastigar v. United States, 406 U.S.

441 (1972), recognized that the Fifth Amendment right can be violated

by use of a compelled statement in a grand jury proceeding. Appellee

Br. 34. But Kastigar concerned only the assertion of the Fifth

14

Amendment privilege by a grand jury witness. See id. This mistake

pervades Defendants’ argument. See Appellee Br. 33–38, 40–42, 44, 48.

Defendants’ conflation of the right and the privilege leads them

to mechanically define “criminal case” as limited to “the categories in

which the Supreme Court has recognized the self-incrimination

privilege.” Appellee Br. 35. They conclude that Ferris’s claim fails

because “the Supreme Court has not extended the self-incrimination

privilege” to pretrial judicial hearings. Appellee Br. 34. But Ferris is not

attempting to claim his Fifth Amendment privilege; he is asserting a

violation of his Fifth Amendment right. The right against self-

incrimination, unlike the privilege designed to protect it, is not a

creation of the Supreme Court, and is not “extended” to new situations

on an ad hoc basis. It is a provision of the Constitution that applies in a

“criminal case.” U.S. Const. amend. V. As the Supreme Court has left

undefined the precise boundary of the right, the issue facing this Court

in determining whether it applies at a pretrial judicial hearing is what

the constitutional language means. Nothing in the text of the Clause

limits its application to Defendants’ categories of “trial-adjacent”

proceedings or those proceedings that “implicate the defendant’s

liberty,” Appellee Br. 34, 36.

15

C. Text and precedent support a distinction between pre-charge and post-charge judicial hearings, not one between custodial and noncustodial hearings.

While Defendants admit that some circuits have recognized

Fifth Amendment violations at certain pretrial hearings, they

characterize those hearings as “custodial,” in an attempt to distinguish

them from the one at issue here. Appellee Br. 36–38. In two of the three

cases Defendants rely on, however, the courts give no indication that

the boundary of the right against self-incrimination falls between

custodial and noncustodial hearings. See Best v. City of Portland, 554

F.3d 698, 702 (7th Cir. 2009) (“Best alleges that statements he made

were used in violation of the Fifth Amendment long after charges were

initiated against him, at a suppression hearing. . . . [T]hat is enough to

allege that the statements were used in a ‘criminal case.’”); Stoot v. City

of Everett, 582 F.3d 910, 923–24 (9th Cir. 2009) (holding that uses of

coerced statements in an affidavit of probable cause “make the

declarant a witness against himself in a criminal proceeding” and

therefore violate the Fifth Amendment).

Taken together, case law across several circuits instead suggests

a definition of criminal case that is contingent on the filing of formal

charges. See Vogt v. City of Hayes, 844 F.3d 1235, 1242 (10th Cir. 2017);

Sornberger v. City of Knoxville, 434 F.3d 1006, 1027 (7th Cir. 2006)

(holding that the Fifth Amendment was violated when the plaintiff’s

16

statement was introduced at a probable cause hearing); see also

Chavez, 538 U.S. at 760 (“A ‘criminal case’ at the very least requires

the initiation of legal proceedings.”).

Vogt is particularly compelling: in a factual scenario very similar

to the present one, the Tenth Circuit’s reasoning did not track

Defendants’ rule. With no reference to custodial implications, the Vogt

court held this January that “[t]he right against self-incrimination

applies to use in a probable cause hearing as well as at trial.” Vogt, 844

F.3d at 1241. Defendants, relying on a heavily edited quotation from

the opinion, write that Vogt’s “lack of clarity” makes it “a poor model

for this Court to follow,” Appellee Br. 38. However, an unedited version,

with the quoted footnote immediately after the sentence it follows,

demonstrates that Vogt’s holding is entirely clear:

We have already decided that Mr. Vogt’s right against self-incrimination was violated when his compelled statements were used in a probable cause hearing in 2014.8

8 We need not decide whether uses before the probable cause hearing would have constituted additional violations of the Fifth Amendment.

Vogt, 844 F.3d at 1247 & n.8.

Nor were the “features” of the probable cause hearing in Vogt

“vague,” Appellee Br. 38. Rather, they are clear from the relevant rules

of criminal procedure and common practice. See Kan. Stat. Ann. § 22-

2902(3) (West 2010) (requiring courts to determine if “there is probable

17

cause to believe that a [crime] has been committed by the defendant”).

These cases show that the right against self-incrimination includes

pretrial judicial hearings after charges have been filed, whether

custodial or not.

D. Courts distinguish between self-incrimination and substantive due process claims.

Defendants argue that the circuits that have recognized Fifth

Amendment violations at pretrial hearings were motivated by

“considerations of sympathy,” Appellee Br. 42, granting Fifth

Amendment relief to plaintiffs who actually alleged “near-miss due

process violations,” id. at 43. This is simply incorrect. A single instance

of coercive questioning can violate substantive due process rights and

also lead to a violation of the right against self-incrimination, if coerced

statements are later used in a criminal case. But courts deal with

claimed violations of the Fifth and Fourteenth Amendments separately.

See Stoot, 582 F.3d at 925, 929; Sornberger, 434 F.3d at 1023 n.11;

Murray v. Earle, 405 F.3d 278, 290 n.40 (5th Cir. 2005); Renda v. King,

347 F.3d 550, 552 n.2 (3d Cir. 2003).

E. Ferris’s proposed rule provides an administrable definition of “criminal case” that is grounded in the constitutional text.

Ferris asks for a clear and limited interpretation of “criminal

case,” one that would prevent the government from compelling a

confession and using it against the speaker in a pretrial judicial

18

hearing. By contrast, Defendants define “criminal case” as comprising

three categories: trial, certain “trial-adjacent” hearings that have

already been considered by the Supreme Court, and possibly “pretrial

custodial hearings” that implicate “liberty.” Appellee Br. 38. But this is

a disjointed approach to defining a single term.

By stitching together various Supreme Court cases as they arise

and inventing a vague concept of liberty untethered from case law,

Defendants ask this Court to adopt a definition of “criminal case” that

is unrecognizable as such. This Court should instead look to the text of

the Fifth Amendment and recognize that the use of Ferris’s compelled

confession at a pretrial judicial hearing made him “a witness against

himself in [a] criminal case.” U.S. Const. amend. V.

19

CONCLUSION

For the foregoing reasons, Austin Ferris respectfully requests

that the district court’s order granting dismissal be reversed.

6th day of March, 2017 Respectfully submitted,

Frederick J. Ding L. Vivian Dong Henry Druschel Lydia Lichlyter Raeesa Munshi William Schmidt Counsel for Plaintiff-Appellant