CHAVEZ v. MARTINEZ

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760 OCTOBER TERM, 2002
Syllabus
CHAVEZ v. MARTINEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1444. Argued December 4, 2002—Decided May 27, 2003
While respondent Martinez was being treated for gunshot wounds re-
ceived during an altercation with police, he was interrogated by peti-
tioner Chavez, a patrol supervisor. Martinez admitted that he used
heroin and had taken an officer’s gun during the incident. At no point
was Martinez given Miranda warnings. Although he was never
charged with a crime, and his answers were never used against him in
any criminal proceeding, Martinez filed a 42 U. S. C. § 1983 suit, main-
taining, among other things, that Chavez’s actions violated his Fifth
Amendment right not to be “compelled in any criminal case to be a
witness against himself,” and his Fourteenth Amendment substantive
due process right to be free from coercive questioning. The District
Court ruled that Chavez was not entitled to qualified immunity, and
the Ninth Circuit affirmed, finding that Chavez’s coercive questioning
violated Martinez’s Fifth Amendment rights even though his statements
were not used against him in a criminal proceeding, and that a police
officer violates due process when he obtains a confession by coercive
conduct, regardless of whether the confession is subsequently used at
trial.
Held: The judgment is reversed, and the case is remanded.
270 F. 3d 852, reversed and remanded.
Justice Thomas, joined by The Chief Justice, Justice O’Connor,
and Justice Scalia, concluded in Part II–A that Chavez did not de-
prive Martinez of his Fifth Amendment rights. Pp. 766–773.
(a) An officer is entitled to qualified immunity if his alleged conduct
did not violate a constitutional right. See Saucier v. Katz, 533 U. S.
194, 201. The text of the Fifth Amendment’s Self-Incrimination Clause
cannot support the Ninth Circuit’s view that mere compulsive ques-
tioning violates the Constitution. A “criminal case” at the very least
requires the initiation of legal proceedings, and police questioning does
not constitute such a case. Statements compelled by police interroga-
tion may not be used against a defendant in a criminal case, but it is not
until such use that the Self-Incrimination Clause is violated, see United
States v. Verdugo-Urquidez, 494 U. S. 259, 264. Martinez was never
made to be a “witness” against himself because his statements were
never admitted as testimony against him in a criminal case. Nor was

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Syllabus
he ever placed under oath and exposed to “ ‘the cruel trilemma of self-
accusation, perjury or contempt.’ ” Michigan v. Tucker, 417 U. S. 433,
445. Pp. 766–767.
(b) The Ninth Circuit’s approach is also irreconcilable with this
Court’s case law. The government may compel witnesses to testify at
trial or before a grand jury, on pain of contempt, so long as the witness
is not the target of the criminal case in which he testifies, see, e. g.,
Kastigar v. United States, 406 U. S. 441, 443; and this Court has long
permitted the compulsion of incriminating testimony so long as the
statements (or evidence derived from them) cannot be used against the
speaker in a criminal case, id., at 458. Martinez was no more compelled
in a criminal case to be a witness against himself than an immunized
witness forced to testify on pain of contempt. That an immunized wit-
ness knows that his statements may not be used against him, while
Martinez likely did not, does not make the immunized witness’ state-
ments any less compelled and lends no support to the Ninth Circuit’s
conclusion that coercive police interrogations alone violate the Fifth
Amendment. Moreover, those subjected to coercive interrogations
have an automatic protection from the use of their involuntary state-
ments in any subsequent criminal trial, e. g., Oregon v. Elstad, 470 U. S.
298, 307–308, which is coextensive with the use and derivative use im-
munity mandated by Kastigar. Pp. 767–770.
(c) The fact that the Court has permitted the Fifth Amendment privi-
lege to be asserted in noncriminal cases does not alter the conclusion in
this case. Judicially created prophylactic rules—such as the rule allow-
ing a witness to insist on an immunity agreement before being com-
pelled to give testimony in noncriminal cases, and the exclusionary
rule—are designed to safeguard the core constitutional right protected
by the Self-Incrimination Clause. They do not extend the scope of that
right itself, just as violations of such rules do not violate a person’s
constitutional rights. Accordingly, Chavez’s failure to read Miranda
warnings to Martinez did not violate Martinez’s constitutional rights
and cannot be grounds for a § 1983 action. And the absence of a “crimi-
nal case” in which Martinez was compelled to be a “witness” against
himself defeats his core Fifth Amendment claim. Pp. 770–773.
Justice Souter delivered the opinion of the Court with respect to
Part II, concluding that the issue whether Martinez may pursue a claim
of liability for a substantive due process violation should be addressed
on remand. Pp. 779–780.
Justice Souter, joined by Justice Breyer, concluded in Part I
that Martinez’s claim that his questioning alone was a violation of the
Fifth and Fourteenth Amendments subject to redress by a 42 U. S. C.
§ 1983 damages action, though outside the core of Fifth Amendment

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protection, could be recognized if a core guarantee, or the judicial capac-
ity to protect it, would be placed at risk absent complementary protec-
tion, see, e. g., McCarthy v. Arndstein, 266 U. S. 34, 40. However, Mar-
tinez cannot make the “powerful showing” necessary to expand
protection of the privilege against self-incrimination to the point of the
civil liability he requests. Inherent in his purely Fifth Amendment
claim is the risk of global application in every instance of interrogation
producing a statement inadmissible under the Fifth and Fourteenth
Amendments, or violating one of the complementary rules this Court
has accepted in aid of the core privilege. And Martinez has offered no
reason to believe that this new rule is necessary in aid of the basic
guarantee. Pp. 777–779.
Thomas, J., announced the judgment of the Court and delivered an opin-
ion, which was joined by Rehnquist, C. J., in full, by O’Connor, J., as to
Parts I and II–A, and by Scalia, J., as to Parts I and II. Souter, J.,
delivered an opinion, Part II of which was for the Court and was joined
by Stevens, Kennedy, Ginsburg, and Breyer, JJ., and Part I of which
concurred in the judgment and was joined by Breyer, J., post, p. 777.
Scalia, J., filed an opinion concurring in part in the judgment, post, p. 780.
Stevens, J., filed an opinion concurring in part and dissenting in part,
post, p. 783. Kennedy, J., filed an opinion concurring in part and dissent-
ing in part, which was joined by Stevens, J., in full and by Ginsburg, J.,
as to Parts II and III, post, p. 789. Ginsburg, J., filed an opinion concur-
ring in part and dissenting in part, post, p. 799.
Lawrence S. Robbins argued the cause for petitioner.
With him on the briefs were Roy T. Englert, Jr., Kathryn S.
Zecca, Alan E. Wisotsky, Jeffrey Held, and Gary L. Gillig.
Deputy Solicitor General Clement argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Olson, Assistant
Attorney General Chertoff, Assistant Attorney General Mc-
Callum, John P. Elwood, Barbara L. Herwig, and Peter R.
Maier.
Richard S. Paz argued the cause for respondent. With
him on the brief was Sonia Mercado.*
*Briefs of amici curiae urging reversal were filed for the State of Cali-
fornia ex rel. Bill Lockyer by Mr. Lockyer, Attorney General, pro se, Rob-
ert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior

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Opinion of Thomas, J.
Justice Thomas announced the judgment of the Court
and delivered an opinion.*
This case involves a 42 U. S. C. § 1983 suit arising out of
petitioner Ben Chavez’s allegedly coercive interrogation of
respondent Oliverio Martinez. The United States Court of
Appeals for the Ninth Circuit held that Chavez was not enti-
tled to a defense of qualified immunity because he violated
Martinez’s clearly established constitutional rights. We
conclude that Chavez did not deprive Martinez of a constitu-
tional right.
I
On November 28, 1997, police officers Maria Pen˜ a and An-
drew Salinas were near a vacant lot in a residential area of
Oxnard, California, investigating suspected narcotics activ-
ity. While Pen˜ a and Salinas were questioning an individual,
they heard a bicycle approaching on a darkened path that
crossed the lot. They ordered the rider, respondent Marti-
nez, to dismount, spread his legs, and place his hands behind
his head. Martinez complied. Salinas then conducted a
Assistant Attorney General, Stan Cross, Supervising Deputy Attorney
General, and Lee E. Seale and Patrick J. Whalen, Deputy Attorneys Gen-
eral; for the City of Escondido by Jeffrey R. Epp and Richard J. Schnei-
der; for 50 California Cities et al. by Girard Fisher; for the Criminal Jus-
tice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and
for the National Association of Police Organizations by Devallis Rutledge
and William J. Johnson.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union Foundation et al. by Mark D. Rosenbaum, Steven R.
Shapiro, Susan N. Herman, John T. Philipsborn, and Erwin Chemerin-
sky; for the Association of Trial Lawyers of America by Jeffrey L. Needle;
and for the National Police Accountability Project et al. by Susan R. Klein
and Michael Avery.
*The Chief Justice joins this opinion in its entirety. Justice O’Con-
nor joins Parts I and II–A of this opinion. Justice Scalia joins Parts
I and II of this opinion.

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patdown frisk and discovered a knife in Martinez’s waist-
band. An altercation ensued.1
There is some dispute about what occurred during the al-
tercation. The officers claim that Martinez drew Salinas’
gun from its holster and pointed it at them; Martinez denies
this. Both sides agree, however, that Salinas yelled, “ ‘He’s
got my gun!’ ” App. to Pet. for Cert. 3a. Pen˜ a then drew
her gun and shot Martinez several times, causing severe in-
juries that left Martinez permanently blinded and paralyzed
from the waist down. The officers then placed Martinez
under arrest.
Petitioner Chavez, a patrol supervisor, arrived on the
scene minutes later with paramedics. Chavez accompanied
Martinez to the hospital and then questioned Martinez there
while he was receiving treatment from medical personnel.
The interview lasted a total of about 10 minutes, over a 45-
minute period, with Chavez leaving the emergency room for
periods of time to permit medical personnel to attend to
Martinez.
At first, most of Martinez’s answers consisted of “I don’t
know,” “I am dying,” and “I am choking.” App. 14, 17, 18.
Later in the interview, Martinez admitted that he took the
gun from the officer’s holster and pointed it at the police.
Id., at 16. He also admitted that he used heroin regularly.
Id., at 18. At one point, Martinez said “I am not telling you
anything until they treat me,” yet Chavez continued the in-
terview. Id., at 14. At no point during the interview was
Martinez given warnings under Miranda v. Arizona, 384
U. S. 436 (1966). App. to Pet. for Cert. 4a.
Martinez was never charged with a crime, and his answers
were never used against him in any criminal prosecution.
Nevertheless, Martinez filed suit under Rev. Stat. § 1979, 42
1 The parties disagree over what triggered the altercation. The officers
maintain that Martinez ran away from them and that they tackled him
while in pursuit; Martinez asserts that he never attempted to flee and
Salinas tackled him without warning.

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U. S. C. § 1983, maintaining that Chavez’s actions violated his
Fifth Amendment right not to be “compelled in any criminal
case to be a witness against himself,” as well as his Four-
teenth Amendment substantive due process right to be free
from coercive questioning. The District Court granted
summary judgment to Martinez as to Chavez’s qualified im-
munity defense on both the Fifth and Fourteenth Amend-
ment claims. Chavez took an interlocutory appeal to the
Ninth Circuit, which affirmed the District Court’s denial of
qualified immunity. Martinez v. Oxnard, 270 F. 3d 852
(2001). Applying Saucier v. Katz, 533 U. S. 194 (2001), the
Ninth Circuit first concluded that Chavez’s actions, as al-
leged by Martinez, deprived Martinez of his rights under the
Fifth and Fourteenth Amendments. The Ninth Circuit did
not attempt to explain how Martinez had been “compelled in
any criminal case to be a witness against himself.” Instead,
the Ninth Circuit reiterated the holding of an earlier Ninth
Circuit case, Cooper v. Dupnik, 963 F. 2d 1220, 1229 (1992)
(en banc), that “the Fifth Amendment’s purpose is to prevent
coercive interrogation practices that are destructive of
human dignity,” 270 F. 3d, at 857 (internal quotation marks
omitted), and found that Chavez’s “coercive questioning” of
Martinez violated his Fifth Amendment rights, “[e]ven
though Martinez’s statements were not used against him in
a criminal proceeding,” ibid. As to Martinez’s due process
claim, the Ninth Circuit held that “a police officer violates
the Fourteenth Amendment when he obtains a confession
by coercive conduct, regardless of whether the confession is
subsequently used at trial.” Ibid.
The Ninth Circuit then concluded that the Fifth and Four-
teenth Amendment rights asserted by Martinez were clearly
established by federal law, explaining that a reasonable offi-
cer “would have known that persistent interrogation of the
suspect despite repeated requests to stop violated the sus-

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pect’s Fifth and Fourteenth Amendment right to be free
from coercive interrogation.” Id., at 858.
We granted certiorari. 535 U. S. 1111 (2002).
II
In deciding whether an officer is entitled to qualified im-
munity, we must first determine whether the officer’s alleged
conduct violated a constitutional right. See Katz, 533 U. S.,
at 201. If not, the officer is entitled to qualified immunity,
and we need not consider whether the asserted right was
“clearly established.” Ibid. We conclude that Martinez’s
allegations fail to state a violation of his constitutional
rights.
A
1
The Fifth Amendment, made applicable to the States by
the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1
(1964), requires that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U. S.
Const., Amdt. 5 (emphases added). We fail to see how,
based on the text of the Fifth Amendment, Martinez can
allege a violation of this right, since Martinez was never
prosecuted for a crime, let alone compelled to be a witness
against himself in a criminal case.
Although Martinez contends that the meaning of “criminal
case” should encompass the entire criminal investigatory
process, including police interrogations, Brief for Respond-
ent 23, we disagree. In our view, a “criminal case” at the
very least requires the initiation of legal proceedings. See
Blyew v. United States, 13 Wall. 581, 595 (1872) (“The words
‘case’ and ‘cause’ are constantly used as synonyms in statutes
and judicial decisions, each meaning a proceeding in court, a
suit, or action” (emphasis added)); Black’s Law Dictionary
215 (6th ed. 1990) (defining “[c]ase” as “[a] general term for
an action, cause, suit, or controversy at law . . . ; a question
contested before a court of justice” (emphasis added)). We

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need not decide today the precise moment when a “criminal
case” commences; it is enough to say that police questioning
does not constitute a “case” any more than a private inves-
tigator’s precomplaint activities constitute a “civil case.”
Statements compelled by police interrogations of course
may not be used against a defendant at trial, see Brown v.
Mississippi, 297 U. S. 278, 286 (1936), but it is not until
their use in a criminal case that a violation of the Self-
Incrimination Clause occurs, see United States v. Verdugo-
Urquidez, 494 U. S. 259, 264 (1990) (“The privilege against
self-incrimination guaranteed by the Fifth Amendment is
a fundamental trial right of criminal defendants. Although
conduct by law enforcement officials prior to trial may ulti-
mately impair that right, a constitutional violation occurs
only at trial” (emphases added; citations omitted)); Withrow
v. Williams, 507 U. S. 680, 692 (1993) (describing the Fifth
Amendment as a “ ‘trial right’ ”); id., at 705 (O’Connor, J.,
concurring in part and dissenting in part) (describing “true
Fifth Amendment claims” as “the extraction and use of com-
pelled testimony” (emphasis altered)).
Here, Martinez was never made to be a “witness” against
himself in violation of the Fif th Amendment’s Self-
Incrimination Clause because his statements were never ad-
mitted as testimony against him in a criminal case. Nor was
he ever placed under oath and exposed to “ ‘the cruel tri-
lemma of self-accusation, perjury or contempt.’ ” Michigan
v. Tucker, 417 U. S. 433, 445 (1974) (quoting Murphy v. Wa-
terfront Comm’n of N. Y. Harbor, 378 U. S. 52, 55 (1964)).
The text of the Self-Incrimination Clause simply cannot sup-
port the Ninth Circuit’s view that the mere use of compulsive
questioning, without more, violates the Constitution.
2
Nor can the Ninth Circuit’s approach be reconciled with
our case law. It is well established that the government
may compel witnesses to testify at trial or before a grand

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jury, on pain of contempt, so long as the witness is not the
target of the criminal case in which he testifies. See Minne-
sota v. Murphy, 465 U. S. 420, 427 (1984); Kastigar v. United
States, 406 U. S. 441, 443 (1972). Even for persons who have
a legitimate fear that their statements may subject them to
criminal prosecution, we have long permitted the compulsion
of incriminating testimony so long as those statements (or
evidence derived from those statements) cannot be used
against the speaker in any criminal case. See Brown v.
Walker, 161 U. S. 591, 602–604 (1896); Kastigar, supra, at
458; United States v. Balsys, 524 U. S. 666, 671–672 (1998).
We have also recognized that governments may penalize
public employees and government contractors (with the loss
of their jobs or government contracts) to induce them to re-
spond to inquiries, so long as the answers elicited (and their
fruits) are immunized from use in any criminal case against
the speaker. See Lefkowitz v. Turley, 414 U. S. 70, 84–85
(1973) (“[T]he State may insist that [contractors] . . . either
respond to relevant inquiries about the performance of their
contracts or suffer cancellation”); Lefkowitz v. Cunningham,
431 U. S. 801, 806 (1977) (“Public employees may constitu-
tionally be discharged for refusing to answer potentially in-
criminating questions concerning their official duties if they
have not been required to surrender their constitutional im-
munity” against later use of statements in criminal proceed-
ings).2 By contrast, no “penalty” may ever be imposed on
2 The government may not, however, penalize public employees and gov-
ernment contractors to induce them to waive their immunity from the use
of their compelled statements in subsequent criminal proceedings. See
Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of
City of New York, 392 U. S. 280 (1968); Lefkowitz v. Turley, 414 U. S. 70
(1973), and this is true even though immunity is not itself a right secured
by the text of the Self-Incrimination Clause, but rather a prophylactic rule
we have constructed to protect the Fifth Amendment’s right from inva-
sion. See Part II–A–3, infra. Once an immunity waiver is signed, the
signatory is unable to assert a Fifth Amendment objection to the subse-
quent use of his statements in a criminal case, even if his statements were

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someone who exercises his core Fifth Amendment right not
to be a “witness” against himself in a “criminal case.” See
Griffin v. California, 380 U. S. 609, 614 (1965) (the trial
court’s and the prosecutor’s comments on the defendant’s
failure to testify violates the Self-Incrimination Clause of the
Fifth Amendment). Our holdings in these cases demon-
strate that, contrary to the Ninth Circuit’s view, mere co-
ercion does not violate the text of the Self-Incrimination
Clause absent use of the compelled statements in a criminal
case against the witness.
We fail to see how Martinez was any more “compelled in
any criminal case to be a witness against himself ” than an
immunized witness forced to testify on pain of contempt.
One difference, perhaps, is that the immunized witness
knows that his statements will not, and may not, be used
against him, whereas Martinez likely did not. But this does
not make the statements of the immunized witness any less
“compelled” and lends no support to the Ninth Circuit’s con-
clusion that coercive police interrogations, absent the use of
the involuntary statements in a criminal case, violate the
Fifth Amendment’s Self-Incrimination Clause. Moreover,
our cases provide that those subjected to coercive police in-
terrogations have an automatic protection from the use of
their involuntary statements (or evidence derived from their
statements) in any subsequent criminal trial. Oregon v. El-
stad, 470 U. S. 298, 307–308 (1985); United States v. Blue, 384
U. S. 251, 255 (1966); Leyra v. Denno, 347 U. S. 556, 558
(1954); Ashcraft v. Tennessee, 322 U. S. 143, 155 (1944). See
also Pillsbury Co. v. Conboy, 459 U. S. 248, 278 (1983) (Black-
mun, J., concurring in judgment); Williams v. United States,
401 U. S. 646, 662 (1971) (Brennan, J., concurring in result).
This protection is, in fact, coextensive with the use and de-
in fact compelled. A waiver of immunity is therefore a prospective
waiver of the core self-incrimination right in any subsequent criminal pro-
ceeding, and States cannot condition public employment on the waiver of
constitutional rights, Lefkowitz, supra, at 85.

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rivative use immunity mandated by Kastigar when the gov-
ernment compels testimony from a reluctant witness. See
406 U. S., at 453. Accordingly, the fact that Martinez did
not know his statements could not be used against him does
not change our view that no violation of the Fifth Amend-
ment’s Self-Incrimination Clause occurred here.
3
Although our cases have permitted the Fifth Amendment’s
self-incrimination privilege to be asserted in noncriminal
cases, see id., at 444–445 (recognizing that the “Fifth
Amendment privilege against compulsory self-incrimination
. . . can be asserted in any proceeding, civil or criminal, ad-
ministrative or judicial, investigatory or adjudicatory . . .”);
Lefkowitz v. Turley, supra, at 77 (stating that the Fifth
Amendment privilege allows one “not to answer official ques-
tions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate
him in future criminal proceedings”), that does not alter our
conclusion that a violation of the constitutional right against
self-incrimination occurs only if one has been compelled to
be a witness against himself in a criminal case.
In the Fifth Amendment context, we have created prophy-
lactic rules designed to safeguard the core constitutional
right protected by the Self-Incrimination Clause. See, e. g.,
Tucker, 417 U. S., at 444 (describing the “procedural safe-
guards” required by Miranda as “not themselves rights pro-
tected by the Constitution but . . . measures to insure that
the right against compulsory self-incrimination was pro-
tected” to “provide practical reinforcement for the right”);
Elstad, supra, at 306 (stating that “[t]he Miranda exclusion-
ary rule . . . serves the Fifth Amendment and sweeps more
broadly than the Fifth Amendment itself ”). Among these
rules is an evidentiary privilege that protects witnesses from
being forced to give incriminating testimony, even in non-
criminal cases, unless that testimony has been immunized

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from use and derivative use in a future criminal proceeding
before it is compelled. See Kastigar, supra, at 453; Maness
v. Meyers, 419 U. S. 449, 461–462 (1975) (noting that the Fifth
Amendment privilege may be asserted if one is “compelled
to produce evidence which later may be used against him as
an accused in a criminal action” (emphasis added)).
By allowing a witness to insist on an immunity agreement
before being compelled to give incriminating testimony in
a noncriminal case, the privilege preserves the core Fifth
Amendment right from invasion by the use of that compelled
testimony in a subsequent criminal case. See Tucker,
supra, at 440–441 (“Testimony obtained in civil suits, or be-
fore administrative or legislative committees, could [absent
a grant of immunity] prove so incriminating that a person
compelled to give such testimony might readily be convicted
on the basis of those disclosures in a subsequent criminal
proceeding”). Because the failure to assert the privilege
will often forfeit the right to exclude the evidence in a subse-
quent “criminal case,” see Murphy, 465 U. S., at 440; Garner
v. United States, 424 U. S. 648, 650 (1976) (failure to claim
privilege against self-incrimination before disclosing incrimi-
nating information on tax returns forfeited the right to ex-
clude that information in a criminal prosecution); United
States v. Kordel, 397 U. S. 1, 7 (1970) (criminal defendant for-
feited his right to assert Fifth Amendment privilege with
regard to answers he gave to interrogatories in a prior civil
proceeding), it is necessary to allow assertion of the privilege
prior to the commencement of a “criminal case” to safeguard
the core Fifth Amendment trial right. If the privilege could
not be asserted in such situations, testimony given in those
judicial proceedings would be deemed “voluntary,” see Rog-
ers v. United States, 340 U. S. 367, 371 (1951); United States
v. Monia, 317 U. S. 424, 427 (1943); hence, insistence on a
prior grant of immunity is essential to memorialize the fact
that the testimony had indeed been compelled and therefore

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protected from use against the speaker in any “criminal
case.”
Rules designed to safeguard a constitutional right, how-
ever, do not extend the scope of the constitutional right it-
self, just as violations of judicially crafted prophylactic rules
do not violate the constitutional rights of any person. As
we explained, we have allowed the Fifth Amendment privi-
lege to be asserted by witnesses in noncriminal cases in
order to safeguard the core constitutional right defined by
the Self-Incrimination Clause—the right not to be compelled
in any criminal case to be a witness against oneself. 3 We
have likewise established the Miranda exclusionary rule as
a prophylactic measure to prevent violations of the right pro-
tected by the text of the Self-Incrimination Clause—the ad-
mission into evidence in a criminal case of confessions ob-
tained through coercive custodial questioning. See Warren
v. Lincoln, 864 F. 2d 1436, 1442 (CA8 1989) (alleged Miranda
violation not actionable under § 1983); Giuffre v. Bissell, 31
F. 3d 1241, 1256 (CA3 1994) (same); Bennett v. Passic, 545
F. 2d 1260, 1263 (CA10 1976) (same); see also New York v.
Quarles, 467 U. S. 649, 686 (1984) (Marshall, J., dissenting)
(“All the Fifth Amendment forbids is the introduction of co-
erced statements at trial”). Accordingly, Chavez’s failure to
read Miranda warnings to Martinez did not violate Marti-
nez’s constitutional rights and cannot be grounds for a § 1983
action. See Connecticut v. Barrett, 479 U. S. 523, 528 (1987)
(Miranda’s warning requirement is “not itself required by
the Fifth Amendmen[t] . . . but is instead justified only by
reference to its prophylactic purpose”); Tucker, supra, at 444
(Miranda’s safeguards “were not themselves rights pro-
tected by the Constitution but were instead measures to in-
sure that the right against compulsory self-incrimination was
protected”). And the absence of a “criminal case” in which
3 That the privilege is a prophylactic one does not alter our penalty cases
jurisprudence, which allows such privilege to be asserted prior to, and
outside of, criminal proceedings.

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Opinion of Thomas, J.
Martinez was compelled to be a “witness” against himself
defeats his core Fifth Amendment claim. The Ninth Cir-
cuit’s view that mere compulsion violates the Self-
Incrimination Clause, see 270 F. 3d, at 857; California Attor-
neys for Criminal Justice v. Butts, 195 F. 3d 1039, 1045–1046
(1999); Cooper, 963 F. 2d, at 1243–1244, finds no support in
the text of the Fifth Amendment and is irreconcilable with
our case law.4 Because we find that Chavez’s alleged con-
duct did not violate the Self-Incrimination Clause, we re-
verse the Ninth Circuit’s denial of qualified immunity as to
Martinez’s Fifth Amendment claim.
Our views on the proper scope of the Fifth Amendment’s
Self-Incrimination Clause do not mean that police torture or
other abuse that results in a confession is constitutionally
permissible so long as the statements are not used at trial;
it simply means that the Fourteenth Amendment’s Due
Process Clause, rather than the Fifth Amendment’s Self-
Incrimination Clause, would govern the inquiry in those
cases and provide relief in appropriate circumstances.5
4 It is Justice Kennedy’s indifference to the text of the Self-
Incrimination Clause, as well as a conspicuous absence of a single citation
to the actual text of the Fifth Amendment, that permits him to adopt the
Ninth Circuit’s interpretation.
Mincey v. Arizona, 437 U. S. 385 (1978), on which Justice Kennedy
and Justice Ginsburg rely in support of their reading of the Fifth
Amendment, was a case addressing the admissibility of a coerced confes-
sion under the Due Process Clause. Mincey did not even mention the
Fifth Amendment or the Self-Incrimination Clause, and refutes Justice
Kennedy’s and Justice Ginsburg’s assertions that their interpretation
of that Clause would have been known to any reasonable officer at the
time Chavez conducted his interrogation.
5 We also do not see how, in light of Graham v. Connor, 490 U. S. 386
(1989), Justice Kennedy can insist that “the Self-Incrimination Clause
is applicable at the time and place police use compulsion to extract a state-
ment from a suspect” while at the same time maintaining that the use of
“torture or its equivalent in an attempt to induce a statement” violates
the Due Process Clause. Post, at 795, 796 (opinion concurring in part and
dissenting in part). Graham foreclosed the use of substantive due proc-

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774 CHAVEZ v. MARTINEZ
Opinion of Thomas, J.
B
The Fourteenth Amendment provides that no person shall
be deprived “of life, liberty, or property, without due process
of law.” Convictions based on evidence obtained by meth-
ods that are “so brutal and so offensive to human dignity”
that they “shoc[k] the conscience” violate the Due Process
Clause. Rochin v. California, 342 U. S. 165, 172, 174 (1952)
(overturning conviction based on evidence obtained by invol-
untary stomach pumping). See also Breithaupt v. Abram,
352 U. S. 432, 435 (1957) (reiterating that evidence obtained
through conduct that “ ‘shock[s] the conscience’ ” may not be
used to support a criminal conviction). Although Rochin
did not establish a civil remedy for abusive police behavior,
we recognized in County of Sacramento v. Lewis, 523 U. S.
833, 846 (1998), that deprivations of liberty caused by “the
most egregious official conduct,” id., at 846, 847–848, n. 8,
may violate the Due Process Clause. While we rejected, in
Lewis, a § 1983 plaintiff ’s contention that a police officer’s
deliberate indifference during a high-speed chase that caused
the death of a motorcyclist violated due process, id., at 854,
we left open the possibility that unauthorized police behavior
in other contexts might “shock the conscience” and give rise
to § 1983 liability. Id., at 850.
We are satisfied that Chavez’s questioning did not violate
Martinez’s due process rights. Even assuming, arguendo,
that the persistent questioning of Martinez somehow de-
prived him of a liberty interest, we cannot agree with Marti-
ess analysis in claims involving the use of excessive force in effecting an
arrest and held that such claims are governed solely by the Fourth
Amendment’s prohibitions against “unreasonable” seizures, because the
Fourth Amendment provided the explicit source of constitutional protec-
tion against such conduct. 490 U. S., at 394–395. If, as Justice Ken-
nedy believes, the Fifth Amendment’s Self-Incrimination Clause governs
coercive police interrogation even absent use of compelled statements in
a criminal case, then Graham suggests that the Due Process Clause
would not.

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Opinion of Thomas, J.
nez’s characterization of Chavez’s behavior as “egregious” or
“conscience shocking.” As we noted in Lewis, the official
conduct “most likely to rise to the conscience-shocking level”
is the “conduct intended to injure in some way unjustifiable
by any government interest.” Id., at 849. Here, there is
no evidence that Chavez acted with a purpose to harm Marti-
nez by intentionally interfering with his medical treatment.
Medical personnel were able to treat Martinez throughout
the interview, App. to Pet. for Cert. 4a, 18a, and Chavez
ceased his questioning to allow tests and other procedures
to be performed. Id., at 4a. Nor is there evidence that
Chavez’s conduct exacerbated Martinez’s injuries or pro-
longed his stay in the hospital. Moreover, the need to inves-
tigate whether there had been police misconduct constituted
a justifiable government interest given the risk that key evi-
dence would have been lost if Martinez had died without the
authorities ever hearing his side of the story.
The Court has held that the Due Process Clause also pro-
tects certain “fundamental liberty interest[s]” from depriva-
tion by the government, regardless of the procedures pro-
vided, unless the infringement is narrowly tailored to serve
a compelling state interest. Washington v. Glucksberg, 521
U. S. 702, 721 (1997). Only fundamental rights and liberties
which are “ ‘deeply rooted in this Nation’s history and tradi-
tion’ ” and “ ‘implicit in the concept of ordered liberty’ ” qual-
ify for such protection. Ibid. Many times, however, we
have expressed our reluctance to expand the doctrine of sub-
stantive due process, see Lewis, supra, at 842; Glucksberg,
supra, at 720; Albright v. Oliver, 510 U. S. 266, 271 (1994);
Reno v. Flores, 507 U. S. 292, 302 (1993); in large part
“because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended,” Collins v.
Harker Heights, 503 U. S. 115, 125 (1992). See also Regents
of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226 (1985).
Glucksberg requires a “ ‘careful description’ ” of the as-
serted fundamental liberty interest for the purposes of sub-

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776 CHAVEZ v. MARTINEZ
Opinion of Thomas, J.
stantive due process analysis; vague generalities, such as
“the right not to be talked to,” will not suffice. 521 U. S.,
at 721. We therefore must take into account the fact that
Martinez was hospitalized and in severe pain during the in-
terview, but also that Martinez was a critical nonpolice wit-
ness to an altercation resulting in a shooting by a police offi-
cer, and that the situation was urgent given the perceived
risk that Martinez might die and crucial evidence might be
lost. In these circumstances, we can find no basis in our
prior jurisprudence, see, e. g., Miranda, 384 U. S., at 477–478
(“It is an act of responsible citizenship for individuals to give
whatever information they may have to aid in law enforce-
ment”), or in our Nation’s history and traditions to suppose
that freedom from unwanted police questioning is a right so
fundamental that it cannot be abridged absent a “compelling
state interest.” Flores, supra, at 302. We have never re-
quired such a justification for a police interrogation, and we
decline to do so here. The lack of any “guideposts for re-
sponsible decisionmaking” in this area, and our oft-stated
reluctance to expand the doctrine of substantive due process,
further counsel against recognizing a new “fundamental lib-
erty interest” in this case.
We conclude that Martinez has failed to allege a violation
of the Fourteenth Amendment, and it is therefore unneces-
sary to inquire whether the right asserted by Martinez was
clearly established.
III
Because Chavez did not violate Martinez’s Fifth and Four-
teenth Amendment rights, he was entitled to qualified immu-
nity. The judgment of the Court of Appeals for the Ninth
Circuit is therefore reversed, and the case is remanded for
further proceedings.
It is so ordered.

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Souter, J., concurring in judgment
Justice Souter delivered an opinion, Part II of which is
the opinion of the Court and Part I of which is an opinion
concurring in the judgment.*
I
Respondent Martinez’s claim under 42 U. S. C. § 1983 for
violation of his privilege against compelled self-incrimination
should be rejected and his case remanded for further pro-
ceedings. I write separately because I believe that our deci-
sion requires a degree of discretionary judgment greater
than Justice Thomas acknowledges. As he points out, the
text of the Fifth Amendment (applied here under the doc-
trine of Fourteenth Amendment incorporation) focuses on
courtroom use of a criminal defendant’s compelled, self-
incriminating testimony, and the core of the guarantee
against compelled self-incrimination is the exclusion of any
such evidence. Justice Ginsburg makes it clear that the
present case is very close to Mincey v. Arizona, 437 U. S.
385 (1978), and Martinez’s testimony would clearly be inad-
missible if offered in evidence against him. But Martinez
claims more than evidentiary protection in asking this Court
to hold that the questioning alone was a completed violation
of the Fifth and Fourteenth Amendments subject to redress
by an action for damages under § 1983.
To recognize such a constitutional cause of action for com-
pensation would, of course, be well outside the core of Fifth
Amendment protection, but that alone is not a sufficient rea-
son to reject Martinez’s claim. As Justice Harlan explained
in his dissent in Miranda v. Arizona, 384 U. S. 436 (1966),
“extension[s]” of the bare guarantee may be warranted, id.,
at 510, if clearly shown to be desirable means to protect the
basic right against the invasive pressures of contemporary
society, id., at 515. In this light, we can make sense of a
*Justice Breyer joins this opinion in its entirety. Justice Stevens,
Justice Kennedy, and Justice Ginsburg join Part II of this opinion.

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778 CHAVEZ v. MARTINEZ
Souter, J., concurring in judgment
variety of Fifth Amendment holdings: barring compulsion to
give testimonial evidence in a civil proceeding, see McCarthy
v. Arndstein, 266 U. S. 34, 40 (1924); requiring a grant of
immunity in advance of any testimonial proffer, see Kastigar
v. United States, 406 U. S. 441, 446–447 (1972); precluding
threats or impositions of penalties that would undermine the
right to immunity, see, e. g., Uniformed Sanitation Men
Assn., Inc. v. Commissioner of Sanitation of City of New
York, 392 U. S. 280, 284–285 (1968); Lefkowitz v. Turley, 414
U. S. 70, 77–79 (1973); Lefkowitz v. Cunningham, 431 U. S.
801, 804–806 (1977); McKune v. Lile, 536 U. S. 24, 35 (2002)
(plurality opinion); and conditioning admissibility on warn-
ings and waivers to promote intelligent choices and to sim-
plify subsequent inquiry into voluntariness, see Miranda,
supra. All of this law is outside the Fifth Amendment’s
core, with each case expressing a judgment that the core
guarantee, or the judicial capacity to protect it, would be
placed at some risk in the absence of such complementary
protection.
I do not, however, believe that Martinez can make the
“powerful showing,” subject to a realistic assessment of costs
and risks, necessary to expand protection of the privilege
against compelled self-incrimination to the point of the civil
liability he asks us to recognize here. See id., at 515, 517
(Harlan, J., dissenting). The most obvious drawback inher-
ent in Martinez’s purely Fifth Amendment claim to damages
is its risk of global application in every instance of inter-
rogation producing a statement inadmissible under Fifth
and Fourteenth Amendment principles, or violating one of
the complementary rules we have accepted in aid of the priv-
ilege against evidentiary use. If obtaining Martinez’s state-
ment is to be treated as a stand-alone violation of the priv-
ilege subject to compensation, why should the same not
be true whenever the police obtain any involuntary self-
incriminating statement, or whenever the government so
much as threatens a penalty in derogation of the right to

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779 Cite as: 538 U. S. 760 (2003)
Opinion of the Court
immunity, or whenever the police fail to honor Miranda?*
Martinez offers no limiting principle or reason to foresee a
stopping place short of liability in all such cases.
Recognizing an action for damages in every such instance
not only would revolutionize Fifth and Fourteenth Amend-
ment law, but would beg the question that must inform every
extension or recognition of a complementary rule in service
of the core privilege: why is this new rule necessary in aid
of the basic guarantee? Martinez has offered no reason to
believe that the guarantee has been ineffective in all or many
of those circumstances in which its vindication has depended
on excluding testimonial admissions or barring penalties.
And I have no reason to believe the law has been systemi-
cally defective in this respect.
But if there is no failure of efficacy infecting the existing
body of Fifth Amendment law, any argument for a damages
remedy in this case must depend not on its Fifth Amendment
feature but upon the particular charge of outrageous conduct
by the police, extending from their initial encounter with
Martinez through the questioning by Chavez. That claim,
however, if it is to be recognized as a constitutional one that
may be raised in an action under § 1983, must sound in sub-
stantive due process. See generally County of Sacramento
v. Lewis, 523 U. S. 833, 849 (1998) (“[C]onduct intended to
injure in some way unjustifiable by any government interest
is the sort of official action most likely to rise to the
conscience-shocking level”). Here, it is enough to say that
Justice Stevens shows that Martinez has a serious argu-
ment in support of such a position.
II
Whether Martinez may pursue a claim of liability for a
substantive due process violation is thus an issue that should
*The question whether the absence of Miranda warnings may be a basis
for a § 1983 action under any circumstance is not before the Court.

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780 CHAVEZ v. MARTINEZ
Scalia, J., concurring in part in judgment
be addressed on remand, along with the scope and merits of
any such action that may be found open to him.
Justice Scalia, concurring in part in the judgment.
I agree with the Court’s rejection of Martinez’s Fifth
Amendment claim, that is, his claim that Chavez violated his
right not to be compelled in any criminal case to be a witness
against himself.1 See ante, at 766–767 (plurality opinion);
ante, at 777–779 (Souter, J., concurring in judgment). And
without a violation of the right protected by the text of the
Self-Incrimination Clause (what the plurality and Justice
Souter call the Fifth Amendment’s “core”), Martinez’s 42
U. S. C. § 1983 action is doomed. Section 1983 does not pro-
vide remedies for violations of judicially created prophylactic
rules, such as the rule of Miranda v. Arizona, 384 U. S. 436
(1966), as the Court today holds, see ante, at 772 (plurality
opinion); post, at 789–790 (Kennedy, J., concurring in part
and dissenting in part); nor is it concerned with “extensions”
of constitutional provisions designed to safeguard actual con-
stitutional rights, cf. ante, at 777–778 (Souter, J., concurring
in judgment).2 Rather, a plaintiff seeking redress through
§ 1983 must establish the violation of a federal constitutional
or statutory right. See Blessing v. Freestone, 520 U. S. 329,
340 (1997); Golden State Transit Corp. v. Los Angeles, 493
U. S. 103, 106 (1989).
1 While occasionally referring to this as a “Fifth Amendment claim,”
a convention commonly followed, Justice Thomas and Justice Souter
acknowledge that technically it is a Fourteenth Amendment claim, since
it is only through the Fourteenth Amendment that the Fifth is “made
applicable to the States,” ante, at 766 (opinion of Thomas, J.), citing Mal-
loy v. Hogan, 378 U. S. 1 (1964).
2 Still less does § 1983 provide a remedy for actions inconsistent with the
perceived “purpose” of a constitutional provision. Cf. Martinez v. Ox-
nard, 270 F. 3d 852, 857 (CA9 2001) (“[T]he Fifth Amendment’s purpose is
to prevent coercive interrogation practices that are destructive of human
dignity” (internal quotation marks omitted)).

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Scalia, J., concurring in part in judgment
My reasons for rejecting Martinez’s Fifth Amendment
claim are those set forth in Justice Thomas’s opinion.
I join Parts I and II of that opinion, including Part II–B,
which deals with substantive due process. Consideration
and rejection of that constitutional claim is absolutely neces-
sary to support reversal of the Ninth Circuit’s judgment.
For after discussing (and erroneously deciding) Martinez’s
Fifth Amendment claim, the Ninth Circuit continued as
follows:
“Likewise, a police officer violates the Fourteenth
Amendment when he obtains a confession by coercive
conduct, regardless of whether the confession is subse-
quently used at trial. ‘The due process violation caused
by coercive behavior of law-enforcement officers in pur-
suit of a confession is complete with the coercive behav-
ior itself. . . . The actual use or attempted use of that
coerced statement in a court of law is not necessary
to complete the affront to the Constitution.’ Cooper v.
Dupnik, 963 F. 2d at 1244–45 (emphasis added).
Mr. Martinez has thus stated a prima facie case that
Sergeant Chavez violated his Fifth and Fourteenth
Amendment rights to be free from police coercion in
pursuit of a confession.” 270 F. 3d 852, 857 (2001).
It seems to me impossible to interpret this passage as any-
thing other than an invocation of the doctrine of “substantive
due process,” which makes unlawful certain government con-
duct, regardless of whether the procedural guarantees of the
Fifth Amendment (or the guarantees of any of the other pro-
visions of the Bill of Rights) have been violated. See Wash-
ington v. Glucksberg, 521 U. S. 702 (1997). To be sure, the
term “substantive due process” is not used in the quoted
passage, but the passage’s technically false dichotomy be-
tween Fifth Amendment and Fourteenth Amendment rights
uses “Fourteenth Amendment rights” as a stand-in for that
aspect of the Fourteenth Amendment which consists of the

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782 CHAVEZ v. MARTINEZ
Scalia, J., concurring in part in judgment
doctrine of substantive due process. (Justice Thomas uses
similar shorthand in the concluding sentence of his analysis:
“Our views on the proper scope of the Fifth Amendment’s
Self-Incrimination Clause do not mean that police torture or
other abuse that results in a confession is constitutionally
permissible so long as the statements are not used at trial;
it simply means that the Fourteenth Amendment’s Due Proc-
ess Clause, rather than the Fifth Amendment’s Self-
Incrimination Clause, would govern the inquiry in those
cases.” Ante, at 773.) What other possible meaning could
the passage possess? Surely the Ninth Circuit was not ex-
pending a paragraph to make the utterly useless observation
that, in addition to violating the Fifth Amendment (because
that is incorporated in the Fourteenth) Chavez violated the
Fourteenth Amendment (because that incorporates the
Fifth). That substantive due process was the point is con-
firmed by the fact that the sole authority cited to support
violation of “the Fourteenth Amendment” is Cooper v. Dup-
nik, 963 F. 2d 1220, 1244–1245 (1992), a Ninth Circuit case
that explicitly recognized a substantive-due-process right to
be free from coercive police questioning. See id., at
1244–1250.
Since the Ninth Circuit’s Fourteenth Amendment holding
rested upon substantive due process, we are without author-
ity to disturb that court’s judgment solely because of our dis-
agreement with its Fifth Amendment (Self-Incrimination
Clause) analysis; the substantive-due-process holding pro-
vides an independent ground supporting the decision that
Chavez was not entitled to qualified immunity. While Jus-
tice Souter declines to address that independent ground—
even though the parties extensively briefed the issue, Brief
for Petitioner 21–36; Brief for Respondent 29–40; Reply Brief
for Petitioner 8–12; Brief for United States as Amicus Curiae
17–23, and even though Justice Stevens discusses it in dis-
sent, post, at 787–788 (opinion concurring in part and dis-
senting in part)—I believe that addressing it, and resolving

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Opinion of Stevens, J.
it against respondent, is essential to the Court’s disposition,
which reverses the Ninth Circuit’s judgment in its entirety.
I therefore see no basis for a remand to determine
“[w]hether Martinez may pursue a claim of liability for a sub-
stantive due process violation.” Ante, at 779 (majority opin-
ion). That question has already been decided by the Ninth
Circuit, and we today reverse its decision. My disagree-
ment with the Court, however, is of little consequence, be-
cause Martinez will not be able to prevail on remand by rais-
ing anew his substantive-due-process claim. Not only is the
claim meritless, as Justice Thomas demonstrates, ante, at
774–776, but Martinez already had his chance to press a
substantive-due-process theory in the Court of Appeals and
chose not to, even though Ninth Circuit precedent clearly
established substantive due process (including—contrary to
the Government’s assertion at oral argument, see Tr. of Oral
Arg. 26—a “shocks the conscience” criterion) as an available
theory of liability under the Fourteenth Amendment. See
Cooper, supra, at 1248 (“There is a second Fourteenth
Amendment substantive due process yardstick available to
Cooper as a theory of § 1983 liability. The test is whether
the Task Force’s conduct ‘shocks the conscience’ ”). No-
where did respondent’s appellate brief mention the words
“substantive due process”; the only rights it asserted were
the right against self-incrimination and the right to warnings
under Miranda v. Arizona, 384 U. S. 436 (1966). Appellees’
Responding Brief in No. 00–56520 (CA9), pp. 28–32, 36–43.
If, as Justice Souter apparently believes, the opinion
below did not address respondent’s “substantive due proc-
ess” claim, that claim has been forfeited.
Justice Stevens, concurring in part and dissenting in
part.
As a matter of fact, the interrogation of respondent was
the functional equivalent of an attempt to obtain an involun-
tary confession from a prisoner by torturous methods. As

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Opinion of Stevens, J.
a matter of law, that type of brutal police conduct constitutes
an immediate deprivation of the prisoner’s constitutionally
protected interest in liberty. Because these propositions
are so clear, the District Court and the Court of Appeals
correctly held that petitioner is not entitled to qualified
immunity.
I
What follows is an English translation of portions of the
tape-recorded questioning in Spanish that occurred in the
emergency room of the hospital when, as is evident from the
text, both parties believed that respondent was about to die:
“Chavez: What happened? Olivero, tell me what
happened.
“O[liverio] M[artinez]: I don’t know.
“Chavez: I don’t know what happened (sic)?
“O. M.: Ay! I am dying. Ay! What are you doing to
me?
“No, . . . ! (unintelligible scream).
“Chavez: What happened, sir?
“O. M.: My foot hurts . . .
“Chavez: Olivera. Sir, what happened?
“O. M.: I am choking.
“Chavez: Tell me what happened.
“O. M.: I don’t know.
“Chavez: ‘I don’t know.’
“O. M.: My leg hurts.
“Chavez: I don’t know what happened (sic)?
“O. M.: It hurts . . .
“Chavez: Hey, hey look.
“O. M.: I am choking.
“Chavez: Can you hear? look listen, I am Benjamin
Chavez with the police here in Oxnard, look.
“O. M.: I am dying, please.
“Chavez: OK, yes, tell me what happened. If you are
going to die, tell me what happened. Look I need to
tell (sic) what happened.

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Opinion of Stevens, J.
“O. M.: I don’t know.
“Chavez: You don’t know, I don’t know what hap-
pened (sic)? Did you talk to the police?
“O. M.: Yes.
“Chavez: What happened with the police?
“O. M.: We fought.
“Chavez: Huh? What happened with the police?
“O. M.: The police shot me.
“Chavez: Why?
“O. M.: Because I was fighting with him.
“Chavez: Oh, why were you fighting with the police?
“O. M.: I am dying . . .
“Chavez: OK, yes you are dying, but tell me why you
are fighting, were you fighting with the police?
. . . . .
“O. M.: Doctor, please I want air, I am dying.
“Chavez: OK, OK. I want to know if you pointed the
gun [to yourself] at the police.
“O. M.: Yes.
“Chavez: Yes, and you pointed it [to yourself]? (sic) at
the police pointed the gun? (sic) Huh?
“O. M.: I am dying, please . . .
. . . . .
“Chavez: OK, listen, listen I want to know what hap-
pened, ok??
“O. M.: I want them to treat me.
“Chavez: OK, they are do it (sic), look when you took
out the gun from the tape (sic) of the police . . .
“O. M.: I am dying . . .
“Chavez: Ok, look, what I want to know if you took out
(sic) the gun of the police?
“O. M.: I am not telling you anything until they
treat me.
“Chavez: Look, tell me what happened, I want to know,
look well don’t you want the police know (sic) what
happened with you?

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Opinion of Stevens, J.
“O. M.: Uuuggghhh! my belly hurts . . .
. . . . .
“Chavez: Nothing, why did you run (sic) from the police?
“O. M.: I don’t want to say anything anymore.
“Chavez: No?
“O. M.: I want them to treat me, it hurts a lot, please.
“Chavez: You don’t want to tell (sic) what happened
with you over there?
“O. M.: I don’t want to die, I don’t want to die.
“Chavez: Well if you are going to die tell me what hap-
pened, and right now you think you are going to die?
“O. M.: No.
“Chavez: No, do you think you are going to die?
“O. M.: Aren’t you going to treat me or what?
“Chavez: Look, think you are going to die, (sic) that’s all
I want to know, if you think you are going to die?
Right now, do you think you are going to die?
“O. M.: My belly hurts, please treat me.
“Chavez: Sir?
“O. M.: If you treat me I tell you everything, if not, no.
“Chavez: Sir, I want to know if you think you are going
to die right now?
“O. M.: I think so.
“Chavez: You think (sic) so? Ok. Look, the doctors
are going to help you with all they can do, Ok?. That
they can do.
“O. M.: Get moving, I am dying, can’t you see me?
come on.
“Chavez: Ah, huh, right now they are giving you medi-
cation.” App. 8–22.
The sound recording of this interrogation, which has been
lodged with the Court, vividly demonstrates that respondent
was suffering severe pain and mental anguish throughout
petitioner’s persistent questioning.

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Opinion of Stevens, J.
II
The Due Process Clause of the Fourteenth Amendment
protects individuals against state action that either “ ‘shocks
the conscience,’ Rochin v. California, 342 U. S. 165, 172
(1952), or interferes with rights ‘implicit in the concept of
ordered liberty,’ Palko v. Connecticut, 302 U. S. 319, 325–326
(1937).” United States v. Salerno, 481 U. S. 739, 746 (1987).
In Palko, the majority of the Court refused to hold that
every violation of the Fifth Amendment satisfied the second
standard. In a host of other cases, however, the Court has
held that unusually coercive police interrogation procedures
do violate that standard.1
1 Justice O’Connor listed many of these cases, as well as cases from
state courts, in Oregon v. Elstad, 470 U. S. 298, 312–313, n. 3 (1985): “Dar-
win v. Connecticut, 391 U. S. 346 (1968) (suspect interrogated for 48 hours
incommunicado while officers denied access to counsel); Beecher v. Ala-
bama, 389 U. S. 35, 36 (1967) (officer fired rifle next to suspect’s ear and
said ‘If you don’t tell the truth I am going to kill you’); Clewis v. Texas,
386 U. S. 707 (1967) (suspect was arrested without probable cause, interro-
gated for nine days with little food or sleep, and gave three unwarned
‘confessions’ each of which he immediately retracted); Reck v. Pate, 367
U. S. 433, 439–440, n. 3 (1961) (mentally retarded youth interrogated in-
communicado for a week ‘during which time he was frequently ill, fainted
several times, vomited blood on the floor of the police station and was
twice taken to the hospital on a stretcher’). . . . Cagle v. State, 45 Ala. App.
3, 4, 221 So. 2d 119, 120 (1969) (police interrogated wounded suspect at
police station for one hour before obtaining statement, took him to hospital
to have his severe wounds treated, only then giving the Miranda warn-
ings; suspect prefaced second statement with ‘I have already give the
Chief a statement and I might as well give one to you, too’), cert. denied,
284 Ala. 727, 221 So. 2d 121 (1969); People v. Saiz, 620 P. 2d 15 (Colo. 1980)
(two hours’ unwarned custodial interrogation of 16-year-old in violation of
state law requiring parent’s presence, culminating in visit to scene of
crime); People v. Bodner, 75 App. Div. 2d 440, 430 N. Y. S. 2d 433 (1980)
(confrontation at police station and at scene of crime between police and
retarded youth with mental age of eight or nine); State v. Badger, 141 Vt.
430, 441, 450 A. 2d 336, 343 (1982) (unwarned ‘close and intense’ station
house questioning of 15-year-old, including threats and promises, resulted

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788 CHAVEZ v. MARTINEZ
Opinion of Stevens, J.
By its terms, the Fifth Amendment itself has no applica-
tion to the States. It is, however, one source of the protec-
tions against state actions that deprive individuals of rights
“implicit in the concept of ordered liberty” that the Four-
teenth Amendment guarantees. Indeed, as I pointed out in
my dissent in Oregon v. Elstad, 470 U. S. 298, 371 (1985), it
is the most specific provision in the Bill of Rights “that pro-
tects all citizens from the kind of custodial interrogation that
was once employed by the Star Chamber, by ‘the Germans
of the 1930’s and early 1940’s,’ and by some of our own police
departments only a few decades ago.” 2 Whenever it occurs,
as it did here, official interrogation of that character is a clas-
sic example of a violation of a constitutional right “implicit
in the concept of ordered liberty.” 3
in confession at 1:20 a.m.; court held ‘[w]arnings . . . were insufficient to
cure such blatant abuse or compensate for the coercion in this case’).”
2 Adding to the cases cited by Justice O’Connor, I appended this foot-
note: “See, e. g., Leyra v. Denno, 347 U. S. 556 (1954); Malinski v. New
York, 324 U. S. 401 (1945); Ashcraft v. Tennessee, 322 U. S. 143 (1944);
Ward v. Texas, 316 U. S. 547 (1942); Vernon v. Alabama, 313 U. S. 547
(1941); White v. Texas, 310 U. S. 530 (1940); Canty v. Alabama, 309 U. S.
629 (1940); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Missis-
sippi, 297 U. S. 278 (1936); Wakat v. Harlib, 253 F. 2d 59 (CA7 1958); People
v. La Frana, 4 Ill. 2d 261, 122 N. E. 2d 583 (1954); cf. People v. Portelli,
15 N. Y. 2d 235, 205 N. E. 2d 857 (1965) (potential witness tortured by
police). Such custodial interrogation is, of course, closer to that employed
by the Soviet Union than that which our constitutional scheme tolerates.
See Coleman v. Alabama, 399 U. S. 1, 15–16 (1970) (opinion of Douglas, J.)
(‘In [Russia] detention incommunicado is the common practice, and the
period of permissible detention now extends for nine months. Where
there is custodial interrogation, it is clear that the critical stage of the
trial takes place long before the courtroom formalities commence. That
is apparent to one who attends criminal trials in Russia. Those that I
viewed never put in issue the question of guilt; guilt was an issue resolved
in the inner precincts of a prison under questioning by the police’).” Id.,
at 371–372, n. 19 (dissenting opinion).
3 A person’s constitutional right to remain silent is an interest in liberty
that is protected against federal impairment by the Fifth Amendment
and from state impairment by the Due Process Clause of the Fourteenth

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789 Cite as: 538 U. S. 760 (2003)
Opinion of Kennedy, J.
I respectfully dissent, but for the reasons articulated by
Justice Kennedy, post, at 799, concur in Part II of Justice
Souter’s opinion.
Justice Kennedy, with whom Justice Stevens joins,
and with whom Justice Ginsburg joins as to Parts II and
III, concurring in part and dissenting in part.
A single police interrogation now presents us with two
issues: first, whether failure to give a required warning
under Miranda v. Arizona, 384 U. S. 436 (1966), was itself
a completed constitutional violation actionable under 42
U. S. C. § 1983; and second, whether an actionable violation
arose at once under the Self-Incrimination Clause (applicable
to the States through the Fourteenth Amendment) when the
police, after failing to warn, used severe compulsion or ex-
traordinary pressure in an attempt to elicit a statement or
confession.
I agree with Justice Thomas that failure to give a Mi-
randa warning does not, without more, establish a completed
violation when the unwarned interrogation ensues. As to
the second aspect of the case, which does not involve the
simple failure to give a Miranda warning, it is my respectful
submission that Justice Souter and Justice Thomas
are incorrect. They conclude that a violation of the Self-
Incrimination Clause does not arise until a privileged state-
ment is introduced at some later criminal proceeding.
A constitutional right is traduced the moment torture or
its close equivalents are brought to bear. Constitutional
Amendment. Justice Thomas’ opinion is fundamentally flawed in two
respects. It incorrectly assumes that the claim it rejects is not a due
process claim, ante, at 772–773, and it incorrectly assumes that coercive
interrogation is not unconstitutional when it occurs because it merely vio-
lates a judge-made “prophylactic” rule. But the violation in this case is
far more serious than a mere failure to advise respondent of his Miranda
rights; moreover, the Court disavowed the “prophylactic” characterization
of Miranda in Dickerson v. United States, 530 U. S. 428, 437–439 (2000).

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790 CHAVEZ v. MARTINEZ
Opinion of Kennedy, J.
protection for a tortured suspect is not held in abeyance until
some later criminal proceeding takes place. These are the
premises of this separate opinion.
I
The Miranda warning, as is now well settled, is a constitu-
tional requirement adopted to reduce the risk of a coerced
confession and to implement the Self-Incrimination Clause.
Dickerson v. United States, 530 U. S. 428, 444 (2000); Mi-
randa v. Arizona, supra, at 467. Miranda mandates a rule
of exclusion. It must be so characterized, for it has signifi-
cant exceptions that can only be assessed and determined in
the course of trial. Unwarned custodial interrogation does
not in every instance violate Miranda. See, e. g., New York
v. Quarles, 467 U. S. 649 (1984) (statement admissible if ques-
tioning was immediately necessary for public safety). Fur-
thermore, statements secured in violation of Miranda are
admissible in some instances. See, e. g., Harris v. New York,
401 U. S. 222 (1971) (statement admissible for purposes of
impeachment). The identification of a Miranda violation
and its consequences, then, ought to be determined at trial.
The exclusion of unwarned statements, when not within an
exception, is a complete and sufficient remedy.
II
Justice Souter and Justice Thomas are wrong, in my
view, to maintain that in all instances a violation of the Self-
Incrimination Clause simply does not occur unless and until
a statement is introduced at trial, no matter how severe the
pain or how direct and commanding the official compulsion
used to extract it.
It must be remembered that the Self-Incrimination Clause
of the Fifth Amendment is applicable to the States in its
full text through the Due Process Clause of the Fourteenth
Amendment. Malloy v. Hogan, 378 U. S. 1, 6 (1964); Griffin
v. California, 380 U. S. 609, 615 (1965). The question is the

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Opinion of Kennedy, J.
proper interpretation of the Self-Incrimination Clause in the
context of the present dispute.
Our cases and our legal tradition establish that the Self-
Incrimination Clause is a substantive constraint on the con-
duct of the government, not merely an evidentiary rule gov-
erning the work of the courts. The Clause must provide
more than mere assurance that a compelled statement will
not be introduced against its declarant in a criminal trial.
Otherwise there will be too little protection against the com-
pulsion the Clause prohibits. The Clause protects an indi-
vidual from being forced to give answers demanded by an
official in any context when the answers might give rise to
criminal liability in the future. “It can be asserted in any
proceeding, civil or criminal, administrative or judicial, in-
vestigatory or adjudicatory; and it protects against any dis-
closures that the witness reasonably believes could be used
in a criminal prosecution or could lead to other evidence that
might be so used.” Kastigar v. United States, 406 U. S. 441,
444–445 (1972) (footnotes omitted). The decision in Kasti-
gar described the Self-Incrimination Clause as an exemption
from the testimonial duty. Ibid. As the duty is immediate,
so must be the privilege. Furthermore, the exercise of the
privilege depends on what the witness reasonably believes
will be the future use of a statement. Id., at 445. Again,
this indicates the existence of a present right.
The Clause provides both assurance that a person will not
be compelled to testify against himself in a criminal proceed-
ing and a continuing right against government conduct in-
tended to bring about self-incrimination. Lefkowitz v. Tur-
ley, 414 U. S. 70, 77 (1973) (“The Amendment not only
protects the individual against being involuntarily called as
a witness against himself in a criminal prosecution but also
privileges him not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings”); accord, Bram v. United States, 168 U. S. 532,

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792 CHAVEZ v. MARTINEZ
Opinion of Kennedy, J.
542–543 (1897); Counselman v. Hitchcock, 142 U. S. 547, 562
(1892). The principle extends to forbid policies which exert
official compulsion that might induce a person into forfeiting
his rights under the Clause. Lefkowitz v. Cunningham, 431
U. S. 801, 806 (1977) (“These cases settle that government
cannot penalize assertion of the constitutional privilege
against compelled self-incrimination by imposing sanctions
to compel testimony which has not been immunized”); accord,
Uniformed Sanitation Men Assn., Inc. v. Commissioner of
Sanitation of City of New York, 392 U. S. 280 (1968); Gard-
ner v. Broderick, 392 U. S. 273, 279 (1968). Justice Souter
and Justice Thomas acknowledge a future privilege. Ante,
at 777–778; ante, at 769. That does not end the matter. A
future privilege does not negate a present right.
Their position finds some support in a single statement in
United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990)
(“Although conduct by law enforcement officials prior to trial
may ultimately impair that right [against compelled self-
incrimination], a constitutional violation occurs only at
trial”). That case concerned the application of the Fourth
Amendment, and the extent of the right secured under the
Self-Incrimination Clause was not then before the Court.
Ibid. Furthermore, Verdugo-Urquidez involved a prosecu-
tion in the United States arising from a criminal investiga-
tion in another country, id., at 274–275, so there was a special
reason for the Court to be concerned about the application
of the Clause in that context, id., at 269 (noting the Court
had “rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the
United States” (citing Johnson v. Eisentrager, 339 U. S. 763
(1950))). In any event, the decision cannot be read to sup-
port the proposition that the application of the Clause is
limited in the way Justice Souter and Justice Thomas
describe today.
A recent case illustrates that a violation of the Self-
Incrimination Clause may have immediate consequences.

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Opinion of Kennedy, J.
Just last Term, nine Justices all proceeded from the premise
that a present, completed violation of the Self-Incrimination
Clause could occur if an incarcerated prisoner were required
to admit to past crimes on pain of forfeiting certain privi-
leges or being assigned harsher conditions of confinement.
McKune v. Lile, 536 U. S. 24 (2002); id., at 48 (O’Connor, J.,
concurring in judgment); id., at 54 (Stevens, J., dissenting).
Although there was disagreement over whether a violation
occurred in the circumstances of that case, there was no dis-
agreement that a present violation could have taken place.
No Member of the Court suggested that the absence of a
pending criminal proceeding made the Self-Incrimination
Clause inquiry irrelevant.
This is not to say all questions as to the meaning and ex-
tent of the Clause are simple of resolution, or that all of the
cited cases are easy to reconcile. Many questions about the
application of the Self-Incrimination Clause are close and dif-
ficult. There are instances, moreover, when incriminating
statements can be required from a reluctant witness, see,
e. g., Gardner, supra, at 276, and others where information
may be required even absent a promise of immunity, see,
e. g., Shapiro v. United States, 335 U. S. 1, 19 (1948). Jus-
tice Souter and Justice Thomas are correct to note that
testimony may be ordered, on pain of contempt, if appro-
priate immunity is granted. It does not follow that the
Clause establishes no present right. The immunity rule
simply shows that the right is not absolute.
The conclusion that the Self-Incrimination Clause is not
violated until the government seeks to use a statement in
some later criminal proceeding strips the Clause of an es-
sential part of its force and meaning. This is no small mat-
ter. It should come as an unwelcome surprise to judges,
attorneys, and the citizenry as a whole that if a legislative
committee or a judge in a civil case demands incriminating
testimony without offering immunity, and even imposes sanc-
tions for failure to comply, that the witness and counsel can-

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794 CHAVEZ v. MARTINEZ
Opinion of Kennedy, J.
not insist the right against compelled self-incrimination is
applicable then and there. Justice Souter and Justice
Thomas, I submit, should be more respectful of the under-
standing that has prevailed for generations now. To tell our
whole legal system that when conducting a criminal investi-
gation police officials can use severe compulsion or even tor-
ture with no present violation of the right against compelled
self-incrimination can only diminish a celebrated provision in
the Bill of Rights. A Constitution survives over time be-
cause the people share a common, historic commitment to
certain simple but fundamental principles which preserve
their freedom. Today’s decision undermines one of those re-
spected precepts.
Dean Griswold explained the place the Self-Incrimination
Clause has secured in our legal heritage:
“The Fifth Amendment has been very nearly a lone sure
rock in a time of storm. It has been one thing which
has held quite firm, although something like a jugger-
naut has pushed upon it. It has, thus, through all its
vicissitudes, been a symbol of the ultimate moral sense
of the community, upholding the best in us, when other-
wise there was a good deal of wavering under the pres-
sures of the times.” E. Griswold, The Fifth Amend-
ment Today 73 (1955).
It damages the law, and the vocabulary with which we
impart our legal tradition from one generation to the next,
to downgrade our understanding of what the Fifth Amend-
ment requires.
There is some authority, it must be acknowledged, for the
proposition that the act of torturing to obtain a confession is
not comprehended within the Self-Incrimination Clause it-
self. In Brown v. Mississippi, 297 U. S. 278 (1936), the
Court held that convictions based upon tortured confessions
could not stand, but it identified the Due Process Clause, and
not the Self-Incrimination Clause, as the source for its ruling.

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Opinion of Kennedy, J.
Id., at 285. The Court interpreted the Self-Incrimination
Clause as limited to “the processes of justice by which the
accused may be called as a witness and required to testify.
Compulsion by torture to extort a confession is a different
matter.” Ibid. The decision in Brown antedated the incor-
poration of the Clause and the ensuing understanding of its
fundamental role in our legal system.
The views expressed by Justice Souter and Justice
Thomas also have some academic support. Professor Mc-
Naughton, in his revision of Professor Wigmore’s treatise on
the law of evidence, recites various rationales for the Self-
Incrimination Clause, declaring all of them insufficient. 8 J.
Wigmore, Evidence § 2251 (J. McNaughton rev. ed. 1961).
The 11th justification he discusses is the prevention of tor-
ture, id., at 315, a practice Professor McNaughton simply
assures us will not be revived, ibid.
This is not convincing. The Constitution is based upon
the theory that when past abuses are forbidden the resulting
right has present meaning. A police officer’s interrogation
is different in a formal sense from interrogation ordered by
an official inquest, but the close relation between the two
ought not to be so quickly discounted. Even if some think
the abuses of the Star Chamber cannot revive, the specter
of Sheriff Screws, see Screws v. United States, 325 U. S. 91
(1945), or of the deputies who beat the confessions out of the
defendants in Brown v. Mississippi, is not so easily banished.
See Oregon v. Elstad, 470 U. S. 298, 312, n. 3 (1985); id., at
371–372, n. 19 (Stevens, J., dissenting).
III
In my view the Self-Incrimination Clause is applicable at
the time and place police use compulsion to extract a state-
ment from a suspect. The Clause forbids that conduct. A
majority of the Court has now concluded otherwise, but that
should not end this case. It simply implicates the larger
definition of liberty under the Due Process Clause of the

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796 CHAVEZ v. MARTINEZ
Opinion of Kennedy, J.
Fourteenth Amendment. D ickerson, 530 U. S., at 433
(“Over time, our cases recognized two constitutional bases
for the requirement that a confession be voluntary to be ad-
mitted into evidence: the Fifth Amendment right against
self-incrimination and the Due Process Clause of the Four-
teenth Amendment”). Turning to this essential, but less
specific, guarantee, it seems to me a simple enough matter
to say that use of torture or its equivalent in an attempt to
induce a statement violates an individual’s fundamental right
to liberty of the person. Brown, supra, at 285; Palko v.
Connecticut, 302 U. S. 319 (1937); see also Rochin v. Califor-
nia, 342 U. S. 165 (1952). The Constitution does not counte-
nance the official imposition of severe pain or pressure for
purposes of interrogation. This is true whether the protec-
tion is found in the Self-Incrimination Clause, the broader
guarantees of the Due Process Clause, or both.
That brings us to the interrogation in this case. Had the
officer inflicted the initial injuries sustained by Martinez (the
gunshot wounds) for purposes of extracting a statement,
there would be a clear and immediate violation of the Consti-
tution, and no further inquiry would be needed. That is not
what happened, however. The initial injuries and anguish
suffered by the suspect were not inflicted to aid the interro-
gation. The wounds arose from events preceding it. True,
police officers had caused the injuries, but they had not done
so to compel a statement or with the purpose of facilitating
some later interrogation. The case can be analyzed, then,
as if the wounds had been inflicted by some third person, and
the officer came to the hospital to interrogate.
There is no rule against interrogating suspects who are in
anguish and pain. The police may have legitimate reasons,
borne of exigency, to question a person who is suffering or
in distress. Locating the victim of a kidnaping, ascertaining
the whereabouts of a dangerous assailant or accomplice, or
determining whether there is a rogue police officer at large
are some examples. That a suspect is in fear of dying, fur-

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Opinion of Kennedy, J.
thermore, may not show compulsion but just the opposite.
The fear may be a motivating factor to volunteer informa-
tion. The words of a declarant who believes his death is
imminent have a special status in the law of evidence. See,
e. g., Mattox v. United States, 146 U. S. 140, 152 (1892) (“The
admission of the testimony is justified upon the ground of
necessity, and in view of the consideration that the certain
expectation of almost immediate death will remove all temp-
tation to falsehood, and enforce as strict adherence to the
truth as the obligation of an oath could impose”); see also
Fed. Rule Evid. 804(b)(2) (providing an exception from the
hearsay rule for certain statements uttered under belief of
impending death). A declarant in Martinez’s circumstances
may want to tell his story even if it increases his pain and
agony to do so. The Constitution does not forbid the police
from offering a person an opportunity to volunteer evidence
he wishes to reveal.
There are, however, actions police may not take if the pro-
hibition against the use of coercion to elicit a statement is
to be respected. The police may not prolong or increase a
suspect’s suffering against the suspect’s will. That conduct
would render government officials accountable for the in-
creased pain. The officers must not give the impression
that severe pain will be alleviated only if the declarant coop-
erates, for that, too, uses pain to extract a statement. In a
case like this one, recovery should be available under § 1983
if a complainant can demonstrate that an officer exploited his
pain and suffering with the purpose and intent of securing
an incriminating statement. That showing has been made
here.
The transcript of the interrogation set out by Justice
Stevens, ante, at 784–786 (opinion concurring in part and
dissenting in part), and other evidence considered by the
District Court demonstrate that the suspect thought his
treatment would be delayed, and thus his pain and condition
worsened, by refusal to answer questions.

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798 CHAVEZ v. MARTINEZ
Opinion of Kennedy, J.
It is true that the interrogation was not continuous. Ten
minutes of questions and answers were spread over a 45-
minute interval. App. to Pet. for Cert. 27a. Treatment
was apparently administered during those interruptions.
The pauses in the interrogation, however, do not indicate any
error in the trial court’s findings and conclusions.
The District Court found that Martinez “had been shot in
the face, both eyes were injured; he was screaming in pain,
and coming in and out of consciousness while being repeat-
edly questioned about details of the encounter with the po-
lice.” Id., at 22a. His blinding facial wounds made it im-
possible for him visually to distinguish the interrogating
officer from the attending medical personnel. The officer
made no effort to dispel the perception that medical treat-
ment was being withheld until Martinez answered the ques-
tions put to him. There was no attempt through Miranda
warnings or other assurances to advise the suspect that his
cooperation should be voluntary. Martinez begged the offi-
cer to desist and provide treatment for his wounds, but the
questioning persisted despite these pleas and despite Marti-
nez’s unequivocal refusal to answer questions. Cf. Mincey
v. Arizona, 437 U. S. 385, 398 (1978) (Court said of similar
circumstances: “It is hard to imagine a situation less condu-
cive to the exercise of a rational intellect and a free will”
(internal quotation marks omitted)).
The standards governing the interrogation of suspects and
witnesses who suffer severe pain must accommodate the exi-
gencies that law enforcement personnel encounter in circum-
stances like this case. It is clear enough, however, that the
police should take the necessary steps to ensure that there
is neither the fact nor the perception that the declarant’s
pain is being used to induce the statement against his will.
In this case no reasonable police officer would believe that
the law permitted him to prolong or increase pain to obtain
a statement. The record supports the ultimate finding that

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799 Cite as: 538 U. S. 760 (2003)
Opinion of Ginsburg, J.
the officer acted with the intent of exploiting Martinez’s con-
dition for purposes of extracting a statement.
Accordingly, I would affirm the decision of the Court of
Appeals that a cause of action under § 1983 has been stated.
The other opinions filed today, however, reach different con-
clusions as to the correct disposition of the case. Were Jus-
tice Stevens, Justice Ginsburg, and I to adhere to our
position, there would be no controlling judgment of the
Court. In these circumstances, and because a ruling on sub-
stantive due process in this case could provide much of the
essential protection the Self-Incrimination Clause secures,
I join Part II of Justice Souter’s opinion and would re-
mand the case for further consideration.
Justice Ginsburg, concurring in part and dissenting in
part.
I join Parts II and III of Justice Kennedy’s opinion.
For reasons well stated therein, I would hold that the Self-
Incrimination Clause applies at the time and place police use
severe compulsion to extract a statement from a suspect.
See ante, at 790–798 and this page (opinion concurring in
part and dissenting in part). The evidence in this case, as
Justice Kennedy explains, supports the conclusion “that
the suspect thought his treatment would be delayed, and
thus his pain and condition worsened, by refusal to answer
questions.” Ante, at 797. I write separately to state my
view that, even if no finding were made concerning Marti-
nez’s belief that refusal to answer would delay his treatment,
or Chavez’s intent to create such an impression, the interro-
gation in this case would remain a clear instance of the kind
of compulsion no reasonable officer would have thought con-
stitutionally permissible.
In Mincey v. Arizona, 437 U. S. 385 (1978), appropriately
referenced by Justice Kennedy, see ante, at 798, this Court
held involuntary certain statements made during an in-

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800 CHAVEZ v. MARTINEZ
Opinion of Ginsburg, J.
hospital police interrogation.1 The suspect questioned in
Mincey had been “seriously wounded just a few hours ear-
lier,” and “[a]lthough he had received some treatment, his
condition at the time of [the] interrogation was still suffi-
ciently serious that he was in the intensive care unit.” 437
U. S., at 398. He was interrogated while “lying on his back
on a hospital bed, encumbered by tubes, needles, and breath-
ing apparatus.” Id., at 399. Despite the suspect’s clear and
repeated indications that he did not want to talk, the officer
persisted in questioning him as he drifted in and out of con-
sciousness. The Court thought it “apparent” in these cir-
cumstances that the suspect’s statements “were not the
product of his free and rational choice.” Id., at 401 (internal
quotation marks omitted).
Martinez’s interrogation strikingly resembles the hospital-
bed questioning in Mincey. Like the suspect in Mincey,
Martinez was “at the complete mercy of [his interrogator],
unable to escape or resist the thrust of [the] interrogation.”
Id., at 399 (internal quotation marks omitted). As Justice
Kennedy notes, Martinez “had been shot in the face, both
eyes were injured; he was screaming in pain, and coming in
and out of consciousness while being repeatedly questioned
about details of the encounter with the police.” Ante, at 798
(quoting Martinez v. Oxnard, CV 98–9313 (CD Cal., July 31,
2000), p. 7, App. to Pet. for Cert. 22a). “In this debilitated
and helpless condition, [Martinez] clearly expressed his wish
not to be interrogated.” Mincey, 437 U. S., at 399. Chavez
nonetheless continued to question him, “ceas[ing] the inter-
rogation only during intervals when [Martinez] lost con-
sciousness or received medical treatment.” Id., at 401.
Martinez was “weakened by pain and shock”; “barely con-
scious, . . . his will was simply overborne.” Id., at 401–402.
1 While Mincey concerned admissibility under the Due Process Clause
of the Fourteenth Amendment, its analysis of the coercive nature of the
interrogation is nonetheless instructive in this case. See Dickerson v.
United States, 530 U. S. 428, 433–434 (2000).

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801 Cite as: 538 U. S. 760 (2003)
Opinion of Ginsburg, J.
Thus, whatever Martinez might have thought about Cha-
vez’s interference with his treatment, I would agree with the
District Court that “the totality of the circumstances in this
case” establishes “that [Martinez’s] statement was not volun-
tarily given.” CV 98–9313, at 7, App. to Pet. for Cert. 22a;
accord, Martinez v. Oxnard, 270 F. 3d 852, 857 (CA9 2001).
It is indeed “hard to imagine a situation less conducive to
the exercise of a rational intellect and a free will.” Ante, at
798 (Kennedy, J., concurring in part and dissenting in part)
(quoting Mincey, 437 U. S., at 398); see ante, at 783 (Ste-
vens, J., concurring in part and dissenting in part) (charac-
terizing Martinez’s interrogation as “the functional equiva-
lent of an attempt to obtain an involuntary confession from a
prisoner by torturous methods”); cf. 4 J. Wigmore, Evidence
§ 2251, p. 827 (1923) (noting about police interrogations
common-law jurisprudence seeks to ward off: “It is far plea-
santer to sit comfortably in the shade rubbing red pepper
into a poor devil’s eyes than to go about in the sun hunt-
ing up evidence.” (emphasis deleted and internal quotation
marks omitted)).2
In common with the Due Process Clause, the privilege
against self-incrimination safeguards “the freedom of the in-
dividual from the arbitrary power of governmental authori-
ties.” E. Griswold, The Fifth Amendment Today 51 (1955).
Closely connected “with the struggle to eliminate torture as
a governmental practice,” id., at 3, the privilege is rightly
regarded as “one of the great landmarks in man’s struggle
to make himself civilized,” id., at 7. Its core idea is captured
in the Latin maxim, “Nemo tenetur prodere se ipsum,” in
2 There was an eyewitness, local farm worker Eluterio Flores, to the
encounter between the police and Martinez. See Brief for Respondent 1;
Defendants’ Opposition to Plaintiff ’s Motion for Summary Adjudication of
Issues, in Record for No. CV 98–9313 (CD Cal.), p. 3; id., at App. E (tran-
script of videotaped deposition of Eluterio Flores). The record does not
reveal the extent to which the police interrogated Flores about the
encounter.

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802 CHAVEZ v. MARTINEZ
Opinion of Ginsburg, J.
English, “No one should be required to accuse himself.” Id.,
at 2. As an “expression of our view of civilized governmen-
tal conduct,” id., at 9, the privilege should instruct and con-
trol all of officialdom, the police no less than the prosecutor.
Convinced that Chavez’s conduct violated Martinez’s right
to be spared from self-incriminating interrogation, I would
affirm the judgment of the Court of Appeals. To assure a
controlling judgment of the Court, however, see ante, at 799
(Kennedy, J., concurring in part and dissenting in part),
I join Part II of Justice Souter’s opinion.