Note

Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three preexisting theories from like-minded critics of Lyng and analyzes the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test that modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

Introduction

The Supreme Court’s treatment of Indigenous sacred sites in the free exercise realm1 1.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”).Show More is fatal both in theory and in fact. In its most recent decision in Lyng v. Northwest Cemetery Protective Ass’n,2 2.485 U.S. 439 (1988).Show More the Court authorized the government to proceed with a construction project that would damage a Native American3 3.I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note.Show More sacred site on federal land.4 4.Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449.Show More In its opinion, the Court briefly acknowledged that Native American religious practices are “inextricably bound up with the unique features of the . . . area.”5 5.Id. at 451.Show More But in giving the government the green light to bulldoze a sacred site on federal land, the Court failed to meaningfully consider inherent distinctions between Native American religions and their Western counterparts. This Note argues that the legal standard established in Lyng kills most sacred site claims in the first instance because it fails to account for unique aspects of Native American sacred sites. In response, this Note proposes a modification to the legal standard to correct this problem and put Native Americans’ religious claims over sacred sites on equal footing with those of other religious claimants.

When contemplating Native American free exercise issues, it is important to understand that each Native American religion incorporates its own values, beliefs, and traditions into its practice.6 6.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023).Show More Yet there are commonalities across these religions, one of which is the importance of sacred sites.7 7.See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”).Show More Sacred sites are specific locations with unique religious and cultural significance.8 8.The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023).Show More Their existence is not exclusive to Native American religions, but the term’s connotation in such religions is unlike that embraced by most other religious groups.9 9.Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL].Show More For instance, Jerusalem is considered a sacred site in Christianity largely because of its rich history and centrality to the story of Jesus Christ’s death and salvation.10 10.What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N].Show More In contrast to Christianity and other major religions, the importance of sacred sites to Native American religions centers not around history or traditions, but rather, the individual spirits ever-present in sacred lands.11 11.King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”).Show More This stems from the notion that Native American religions do not distinguish between the real world and the supernatural—the two dimensions are inherently intertwined.12 12.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023).Show More Accordingly, each sacred site is markedly different from the next, possessing its own distinct spiritual beings and religious qualities.13 13.See King, supra note 9.Show More

Due to their incomparable religious worth, sacred sites are typically reserved for certain religious practices such as ceremonies and pilgrimages,14 14.Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF].Show More or left undisturbed entirely so as to not “disrupt[] the lives of deities” therein.15 15.Id.Show More Altering or destroying an Indigenous sacred site strips it of its spiritual essence,16 16.See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”).Show More signifying to worshippers that their “prayers will not be heard”17 17.Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)).Show More or their “ceremonies will be ineffective to prevent evil and disease,”18 18.Id.Show More among other potentially devastating impacts. Thus, preservation of sacred sites is essential to Native Americans’ ability to practice their respective religions, and irreparably damaging a sacred site can functionally eliminate a Native American religious group’s ability to freely exercise their religion.19 19.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”).Show More

Despite the potentially catastrophic consequences of destroying sacred sites on religious freedom, free exercise claims seeking the protection of Indigenous sacred sites have seldom succeeded following the Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Ass’n.20 20.485 U.S. 439 (1988).Show More In Lyng, Native American tribes brought a claim that the government’s construction project on a sacred site located on federally owned land violated their free exercise rights guaranteed by the First Amendment.21 21.Id. at 443.Show More The majority struck down this challenge, rejecting the claimants’ argument that the government imposed a substantial burden on their free exercise rights since they were not “coerced by the Government’s action into violating their religious beliefs.”22 22.Id. at 449.Show More Rather, it held that an individual has only been coerced into violating their religious beliefs if the government threatened to impose penalties for noncompliance.23 23.Id. at 440.Show More

Since Lyng, courts have repeatedly struck down free exercise claims involving Native American sacred sites,24 24.See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site).Show More reaffirming the notion that the government has imposed a substantial burden on a Native American party’s free exercise rights concerning a sacred site only when the government action amounts to an affirmative act of coercion under threat of sanctions.25 25.Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions).Show More Although Congress subsequently passed multiple laws aimed at protecting religious freedom,26 26.See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”).Show More including one directed specifically at Native American religious liberty,27 27.See American Indian Religious Freedom Act, 42 U.S.C. § 1996.Show More these statutes have also failed to create a judicially enforceable cause of action.28 28.See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”).Show More

This Note argues for a change in the Supreme Court’s characterization and treatment of sacred sites in free exercise cases. Part I provides a background of free exercise jurisprudence and legislation pertaining to Native American sacred sites. It presents an overview of the substantial burden test established originally in Sherbert v. Verner29 29.374 U.S. 398 (1963).Show More and Wisconsin v. Yoder30 30.406 U.S. 205 (1972).Show More and adopted in Lyng and its progeny, followed by an analysis of failed statutory attempts to protect Native American religious liberty. Part I also highlights why Lyng’s failure to protect free exercise rights calls for a reformulation of sacred site claims within the contours of the Sherbert/Yoder test. Part II provides a synopsis of existing proposed alternatives to the Lyng majority’s substantial burden test for sacred site free exercise claims. It analyzes and critiques theories posited by Justice Brennan in the Lyng dissent, Professor Alex Tallchief Skibine, and Professors Stephanie Barclay and Michalyn Steele. Part III synthesizes the benefits and drawbacks of the approaches laid out in Part II. Building off this analysis, it offers a new test which broadens the definition of “coercion” for land-based claims within the substantial burden framework. This test will put Native American sacred site claims on equal footing with other religious claims but remains sufficiently narrowly tailored to address concerns of overexpanding free exercise rights generally.

  1.  U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). ↑
  2.  485 U.S. 439 (1988). ↑
  3.  I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note. ↑
  4.  Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449. ↑
  5.  Id. at 451. ↑
  6.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023). ↑
  7.  See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”). ↑
  8.  The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023). ↑
  9.  Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL]. ↑
  10.  What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N]. ↑
  11.  King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”). ↑
  12.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023). ↑
  13.  See King, supra note 9. ↑
  14.  Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF]. ↑
  15.  Id. ↑
  16.  See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”). ↑
  17.  Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)). ↑
  18.  Id. ↑
  19.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”). ↑
  20.  485 U.S. 439 (1988). ↑
  21.  Id. at 443. ↑
  22.  Id. at 449. ↑
  23.  Id. at 440. ↑
  24.  See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site). ↑
  25.  Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions). ↑
  26.  See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”). ↑
  27.  See American Indian Religious Freedom Act, 42 U.S.C. § 1996. ↑
  28.  See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”). ↑
  29.  374 U.S. 398 (1963). ↑

  30.  406 U.S. 205 (1972). ↑

The Right to Remain Protected: Upholding Youths’ Fifth Amendment Rights After Vega v. Tekoh

In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983. Experts predict that this decision will disproportionately affect youth, who are more psychologically vulnerable to coercive interrogation tactics. However, no scholars have yet proposed any ways to mitigate this impact. This Note explores potential changes to Fifth Amendment doctrine that would safeguard youths’ ability to obtain a remedy following a Fifth Amendment violation. It explains that while the voluntariness test gives many youths hope of securing a remedy for a Miranda violation, the current voluntariness doctrine will not protect all youth whose un-Mirandized statements are admitted in court. Furthermore, while protecting youths’ Miranda rights is necessary, Miranda alone is not sufficient to uphold youths’ rights because youth struggle to understand Miranda warnings and waive Miranda at very high rates. In light of these issues, this Note proposes three changes to Fifth Amendment doctrine. First, courts should adopt a rule that statements made by youth in custody without a parent, guardian, or lawyer present are per se involuntary. Additionally, courts should hold that un-Mirandized statements by youths in custody are per se involuntary. Finally, courts should allow youths to bring a lawsuit under § 1983 for the admission of an un-Mirandized statement.

[S]ometimes, as a result [of an un-Mirandized statement being admitted], a [youth] will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? . . . [The Supreme Court’s interpretation of the Fifth Amendment in Vega v. Tekoh] injures the right by denying the remedy.1 1.Vega v. Tekoh, 142 S. Ct. 2095, 2111 (2022) (Kagan, J., dissenting) (citations omitted).Show More

Introduction

In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983.2 2.Id. at 2099.Show More Several experts have indicated that this decision could have grave consequences for the future of the right against self-incrimination. For example, Gary Stuart, author of a 2004 book about Miranda rights,3 3.Gary L. Stuart, Miranda: The Story of America’s Right to Remain Silent (2004).Show More explained that the decision “will encourage that tiny minority of police officers . . . who abuse these rules routinely, who solve crimes by lying to suspects, by not telling suspects what their constitutional rights are.”4 4.Joe Dana, Arizona Miranda Rights Experts Weigh Significance of Supreme Court Decision, 12News (June 23, 2022, 6:42 PM), https://www.12news.com/article/news/local/‌arizona/Miranda-rights-experts-weigh-significance-of-us-supreme-court-decision/75-976b5c‌32-19f4-48b2-a97f-4a7035373f3a [https://perma.cc/C7CB-6QN9].Show More While defendants who go to trial can seek the suppression of statements made following a violation of their Miranda rights, “sometimes, such a statement will not be suppressed.”5 5.Vega, 142 S. Ct. at 2111 (Kagan, J., dissenting); see, e.g., B.A. v. State, 100 N.E.3d 225, 233–34 (Ind. 2018) (overturning a conviction due to a juvenile court failing to suppress a statement a thirteen-year-old student made after a school resource officer escorted him to the vice principal’s office, another officer encouraged the student to “just tell the truth” without giving him a Miranda warning, officers stayed between the student and the door at all times, no one told the student he was free to leave the room, and no one called the student’s parents until after the interview).Show More

Experts predict that Vega’s harm will have an “outsized impact[]” on youth.6 6.Tami Abdollah,‘You Have to Say the Magic Words.’ What the Supreme Court Ruling on Miranda Rights Means for You, USA Today (June 24, 2022, 7:31 AM), https://www.usa‌today.com/story/news/nation/2022/06/24/supreme-court-ruling-Miranda-weakens-civil-right‌s-activists-say/7716824001/ [https://perma.cc/R7LY-WY27].Show More When asked who is most at risk if police fail to give Miranda warnings, public defender Ilona Coleman responded, “It’s the young—so teenagers who we see . . . in many of our cases that come through the criminal justice system.”7 7.Shannon Bond, Supreme Court Says Police Can’t Be Sued for Not Reading Out Miranda Rights, NPR (July 3, 2022, 8:01 AM), https://www.npr.org/2022/07/03/1109607667/supreme‌-court-says-police-cant-be-sued-for-not-reading-out-Miranda-rights [https://perma.cc/G6DM‌-TDL9].Show More Given these potential consequences, it is essential for lawyers and judges to take action to protect youths’ rights against self-incrimination. This Note argues that courts should hold that a statement made by a youth in custody without a parent, guardian, or lawyer present or without Miranda warnings is per se involuntary and that youth have a cause of action under § 1983 for the admission of an un-Mirandized statement.8 8.For purposes of this Note, “youth” consists of people under eighteen years old.Show More

Although experts acknowledge that Vega is likely to impact youth disproportionately, no scholarly works have proposed any ways to mitigate this impact. This Note makes two primary contributions to the literature. First, this Note argues that statements made by youth in custody without a parent, guardian, or lawyer present or without Miranda warnings should be deemed per se involuntary. Professor Eve Brensike Primus has discussed the importance of the voluntariness test in upholding interrogation rights as the Supreme Court narrows Miranda’s protections,9 9.Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L. Rev. 1, 10–11 (2015).Show More and Professor Hillary Farber has argued that states should adopt statutes requiring consultation with an attorney prior to an interrogation of a youth.10 10.Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 Am. Crim. L. Rev. 1277, 1308–11 (2004).Show More However, this Note is the first to argue that courts should expand the voluntariness doctrine to require both the presence of a parent, guardian, or lawyer and Miranda warnings in order for youths’ statements to be deemed voluntary. Additionally, this Note contends that youth should have a § 1983 cause of action for the admission of an un-Mirandized statement even if adults do not. This argument is partially based on the notion that youths’ un-Mirandized statements should be deemed per se involuntary, which would necessitate the availability of a § 1983 cause of action. However, this Note explains that even if courts do not adopt the proposed expansion of the voluntariness doctrine, the balance-of-interests test used in Vega favors extending Miranda to allow youth to bring § 1983 claims for the admission of un-Mirandized statements.

This Note proceeds in five Parts. Part I discusses how it is especially important to protect youths’ rights during interrogations due to their psychological vulnerabilities and the profound harms they face when incarcerated. Part II explains youths’ rights during interrogations under the U.S. Constitution and how the holding in Vega v. Tekoh has limited the ability to vindicate those rights. Part III discusses how the current voluntariness doctrine can help to uphold youths’ interrogation rights after Vega. Part IV argues that courts should adopt rules that statements by youth in custody without a parent, guardian, or lawyer present or without Miranda warnings are per se involuntary. Finally, Part V explains why youth should be able to sue under § 1983 for the admission of an un-Mirandized statement even if adults cannot.

  1.  Vega v. Tekoh, 142 S. Ct. 2095, 2111 (2022) (Kagan, J., dissenting) (citations omitted). ↑
  2.  Id. at 2099. ↑
  3.  Gary L. Stuart, Miranda: The Story of America’s Right to Remain Silent (2004). ↑
  4.  Joe Dana, Arizona Miranda Rights Experts Weigh Significance of Supreme Court Decision, 12News (June 23, 2022, 6:42 PM), https://www.12news.com/article/news/local/‌arizona/Miranda-rights-experts-weigh-significance-of-us-supreme-court-decision/75-976b5c‌32-19f4-48b2-a97f-4a7035373f3a [https://perma.cc/C7CB-6QN9]. ↑
  5.  Vega, 142 S. Ct. at 2111 (Kagan, J., dissenting); see, e.g., B.A. v. State, 100 N.E.3d 225, 233–34 (Ind. 2018) (overturning a conviction due to a juvenile court failing to suppress a statement a thirteen-year-old student made after a school resource officer escorted him to the vice principal’s office, another officer encouraged the student to “just tell the truth” without giving him a Miranda warning, officers stayed between the student and the door at all times, no one told the student he was free to leave the room, and no one called the student’s parents until after the interview). ↑
  6.  Tami Abdollah, ‘You Have to Say the Magic Words.’ What the Supreme Court Ruling on Miranda Rights Means for You, USA Today (June 24, 2022, 7:31 AM), https://www.usa‌today.com/story/news/nation/2022/06/24/supreme-court-ruling-Miranda-weakens-civil-right‌s-activists-say/7716824001/ [https://perma.cc/R7LY-WY27]. ↑
  7.  Shannon Bond, Supreme Court Says Police Can’t Be Sued for Not Reading Out Miranda Rights, NPR (July 3, 2022, 8:01 AM), https://www.npr.org/2022/07/03/1109607667/supreme‌-court-says-police-cant-be-sued-for-not-reading-out-Miranda-rights [https://perma.cc/G6DM‌-TDL9]. ↑
  8.  For purposes of this Note, “youth” consists of people under eighteen years old. ↑
  9.  Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L. Rev
    .

    1, 10–11 (2015). ↑

  10.  Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 Am. Crim. L. Rev

    .

    1277, 1308–11 (2004). ↑

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1 1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2 2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3 3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4 4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5 5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6 6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7 7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8 8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9 9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting). ↑
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). ↑
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination). ↑
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months). ↑
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”). ↑
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.). ↑
  7.  510 U.S. 266 (1994) (plurality opinion). ↑
  8.  580 U.S. 357 (2017). ↑
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel). ↑
  10.  142 S. Ct. 1332 (2022). ↑
  11.  See infra Section II.C. ↑
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992). ↑
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim. ↑
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake). ↑
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases). ↑
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). ↑
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280. ↑
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits). ↑

  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”). ↑

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