NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ART TOBIAS, No. 18-56245
Plaintiff-Appellee, D.C. No.
v. 2:17-cv-01076-DSF-AS
DANIEL EAST, MEMORANDUM* Defendant-Appellant,
and CITY OF LOS ANGELES; et al.,
Defendants.
ART TOBIAS, No. 18-56360
MICHAEL ARTEAGA; et al.,
Defendants-Appellants,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 15, 2019 Pasadena, California
Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District Judge.
In these consolidated interlocutory appeals,1 Los Angeles School Police
Officer Daniel East and Los Angeles Police Department Detectives Michael
Arteaga, Jeff Cortina, John Motto, and Julian Pere challenge the district court’s
order denying them qualified immunity on Art Tobias’s claims under 42 U.S.C.
§ 1983. We vacate in part, affirm in part, and reverse in part.
1. “[O]fficers are entitled to qualified immunity under § 1983 unless (1)
they violated a federal . . . constitutional right, and (2) the unlawfulness of their
conduct was clearly established at the time.” District of Columbia v. Wesby, 138
S. Ct. 577, 589 (2018) (internal quotation marks omitted). Our jurisdiction over
these interlocutory appeals turns on the collateral order doctrine, which permits
interlocutory review of whether the district court committed an error of law in
denying qualified immunity but not of whether it erred in finding a genuine dispute
** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. 1 We consolidate these appeals for purposes of decision.
2 of material fact. Mitchell v. Forsyth, 472 U.S. 511, 527–30 (1985); Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017). We cannot
adequately assess our jurisdiction without a clear understanding of the district
court’s basis for denying qualified immunity. Maropulos v. Cty. of Los Angeles,
560 F.3d 974, 975 (9th Cir. 2009) (per curiam).
Here, we cannot determine from the district court’s order why it denied
qualified immunity to Officer East on each of the causes of action asserted against
him. The district court did not specifically mention East in its discussion of several
of the causes of action or in its brief qualified immunity analysis. In fact, it is not
clear whether the district court even analyzed some of the claims asserted against
East. For example, the district court granted summary judgment in favor of
Detective Motto on the claims arising from the interrogation because of his
“limited involvement” in it. But while East was not even present at the
interrogation, it appears that the district court’s order left the interrogation-related
claims against him intact.
We therefore vacate the denial of qualified immunity as to East and remand
for the district court to reconsider, on a claim-by-claim basis, whether East is
entitled to qualified immunity. We emphasize that the presence of disputed facts
does not preclude a finding of qualified immunity. Instead, the district court
should determine on remand whether the facts taken in the light most favorable to
3 Tobias show that East violated a clearly established constitutional right. See Tolan
v. Cotton, 572 U.S. 650, 655–57 (2014) (per curiam).
2. On the claims against Detectives Arteaga, Cortina, Motto, and Pere
(Defendants),2 we have jurisdiction to determine whether the facts viewed in the
light most favorable to Tobias show that Defendants violated Tobias’s clearly
established constitutional rights. Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir.
2016).
3. Defendants appeal the district court’s denial of qualified immunity
solely with respect to Tobias’s claims arising from his interrogation. The relevant
causes of action in the operative complaint are (1) a Fifth Amendment claim
arising from the use at Tobias’s trial of inculpatory statements that allegedly
(a) were taken in violation of Tobias’s Miranda rights, and (b) were involuntary
(Count I); (2) a Fourteenth Amendment substantive due process claim alleging that
Defendants used interrogation techniques that “shocked the conscience” (Count II);
and (3) a Fourteenth Amendment due process claim alleging, in part, that
Defendants “fabricated evidence”—including, among other things, “the substance
2 Detective Motto is an appellant only with respect to Tobias’s fabrication- of-evidence claim. We use the generic term “Defendants” to refer to the appellants relevant to each claim—all four detectives for the fabrication-of-evidence claim and only Detectives Arteaga, Cortina, and Pere for the other claims.
4 of Plaintiff’s oral confession” (Count III).3 We conclude that the district court
properly denied qualified immunity on the Miranda claim, but that it erred in
denying qualified immunity on all other interrogation-related claims.4
a. The district court correctly denied qualified immunity on Tobias’s
claim that Defendants violated his Fifth Amendment right to counsel by continuing
his custodial interrogation after he requested an attorney and then using the
resulting confession against him in his criminal case. See Davis v. United States,
512 U.S. 452, 458–59 (1994); Edwards v. Arizona, 451 U.S. 477, 484–85 (1981).
Tobias’s statement—“Could I have an attorney? Because that’s not me”—was an
unequivocal invocation of his right to counsel under clearly established law. See
Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (“Can I get an attorney right
now, man?” was unequivocal); United States v. De la Jara, 973 F.2d 746, 750 (9th
Cir. 1992) (“Can I call my attorney?” was unequivocal); Smith v. Endell, 860 F.2d
1528, 1529 (9th Cir. 1988) (“Can I talk to a lawyer?” was unequivocal). The
immaterial fact that Tobias used “could” rather than “can” in requesting an
attorney does not make that request any less unequivocal, and no reasonable officer
3 Count III also alleged a variety of additional misconduct other than the fabricated confession, but Defendants challenge the district court’s denial of qualified immunity solely with respect to those issues relating to the interrogation. 4 Judge Wardlaw dissents, infra, from the conclusion that the district court erred in denying qualified immunity on any of the interrogation-related claims.
5 could conclude otherwise. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per
curiam).
b. The district court erred in denying qualified immunity with respect to
Tobias’s claims that Defendants obtained and used an involuntary confession in
violation of his Fifth Amendment right against self-incrimination and that
Defendants violated Tobias’s due process rights by using interrogation techniques
that shock the conscience.
(i). “A coercive interrogation exists when the totality of the circumstances
shows that the officer’s tactics undermined the suspect’s ability to exercise his free
will,” Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003)
(citation omitted), and a Fifth Amendment violation occurs when an officer
coerces a suspect to provide a confession that is subsequently used in criminal
proceedings against that suspect, Crowe v. County of San Diego, 608 F.3d 406,
430–31 (9th Cir. 2010). In determining whether a statement was involuntary,
“[c]ourts . . . often consider the following factors: the youth of the accused, his
intelligence, the lack of any advice to the accused of his constitutional rights, the
length of detention, the repeated and prolonged nature of the questioning, and the
use of physical punishment such as the deprivation of food or sleep.” United
States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). Even if Tobias’s
confession were to be deemed involuntary under these standards—a question we
6 do not reach—qualified immunity would still apply unless the facts available to the
Defendants at the time they acted would have made clear to any reasonable police
officer that Tobias’s statement was involuntary. See Hernandez v. Mesa, 137
S. Ct. 2003, 2007 (2017) (“qualified immunity analysis thus is limited to ‘the facts
that were knowable to the defendant officers’ at the time they engaged in the
conduct in question”) (quoting White v. Pauly, 137 S. Ct. 548, 550 (2017)); see
also City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (“An officer cannot
be said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.”) (emphasis added) (citations and internal
quotation marks omitted); Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir.
2009) (although Fifth Amendment claim requires subsequent use of statement in
criminal proceedings, focus of § 1983 suit against officer is on the circumstances
of the interrogation that preceded “turn[ing] over the allegedly coerced statements
to prosecutors”).
Tobias failed to meet this demanding standard. See Romero v. Kitsap Cty.,
931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the
right allegedly violated was clearly established at the time of the alleged
misconduct.”). Although the interrogating officers committed a clear-cut
Miranda/Edwards violation, that fact alone is not sufficient to establish that the
7 resulting confession was involuntary. Bradford v. Davis, 923 F.3d 599, 616 (9th
Cir. 2019) (“statements taken in violation of Edwards … are not presumed to be
involuntary by virtue of the Edwards violation alone”). Considered against the
controlling precedent that has found coercion in custodial interrogation, the
objective circumstances of Tobias’s interrogation, viewed in the light most
favorable to him, were not such that any reasonable police officer would have
realized that the Fifth Amendment right against compelled self-incrimination was
being violated.
Although Tobias was only 13 years old and his unequivocal request for
counsel was improperly brushed aside, his early-evening interrogation lasted only
90 minutes, involved no physical threats or abuse, and otherwise relied on
interrogation techniques that cannot be said, either singly or in the combination
presented here, to have violated clearly established law (e.g., bluffing about the
strength of the evidence the officers had, arguing that the courts would go easier on
the suspect if he confessed to what he had done, and shaming the suspect for the
effect a prosecution would have on his family). Although the question is a close
one in light of the patent violation of Tobias’s right to counsel, in our view Tobias
has failed to show that the officers’ conduct in the interrogation constituted
impermissible coercion under clearly established law.
Like the Fourth Amendment prohibition of excessive force, the Fifth
8 Amendment protection against the use of involuntary statements at a criminal trial
is one that involves “an area of the law ‘in which the result depends very much on
the facts of each case.’” Kisela, 138 S. Ct. at 1153 (citation omitted); see
Haswood, 350 F.3d at 1027 (courts employ “no ‘talismanic definition’ of
voluntariness,” but instead consider the “totality of the circumstances” of the
interrogation); see also supra at 6 (listing factors considered). Consequently, just
as in excessive force cases, “[s]pecificity” is important here, because “‘it is
sometimes difficult for an officer to determine how the relevant legal doctrine’”—
here, the law against coerced confession—“‘will apply to the factual situation the
officer confronts.’” Kisela, 138 S. Ct. at 1152 (citation omitted). As a result, a
plaintiff seeking to defeat qualified immunity must establish that “any reasonable
official in the defendant[s’] shoes would have understood” that the particular
circumstances of the specific interrogation were impermissibly coercive under the
then-existing case law. Id. at 1153 (citation and internal quotation marks omitted)
(emphasis added); see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The
qualified immunity standard gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the
law.”) (citation and internal quotation marks omitted).
Here, the particular circumstances of the interrogation do not present the
same sort of confluence of features that we have previously held to be coercive.
9 Cf., e.g., Taylor v. Maddox, 366 F.3d 992, 1015–16 (9th Cir. 2004) (confession
was clearly involuntary where 16-year-old suspect was arrested late at night,
questioned until 3:00 AM, threatened with a jab to the face, and had his repeated
requests for counsel denied), overruled on other grounds by Murray v. Schriro,
745 F.3d 984, 999–1000 (9th Cir. 2014); Gladden v. Holland, 366 F.2d 580, 582
(9th Cir. 1966) (finding coercion where officers ignored a request for counsel but
also conducted the interrogation “throughout the night” and called in alleged rape
victims to view the suspect). On the contrary, they appear to be less coercive than
other cases in which we have found that coercion had not been established. See,
e.g., Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (noting that coercion is
not established where police merely indicate that a cooperative attitude would
benefit a minor suspect); Cunningham, 345 F.3d at 810 (finding no coercion where
interrogation went for eight hours without a break, officers continued to question
the suspect after claims of innocence, and officers played on the suspect’s fear of
prison). Because it would not have been apparent to any reasonable officer that the
circumstances of this specific interrogation were unconstitutional, the officers were
entitled to qualified immunity on Tobias’s claim that the officers violated his Fifth
Amendment right against compelled self-incrimination.5
5 Whether Tobias’s remaining Fifth Amendment interrogation claim—that his statement was taken in violation of Edwards and used at a criminal trial—is
10 (ii). The district court also erred in denying qualified immunity to the
detectives on the claim that the interrogation violated Tobias’s Fourteenth
Amendment right to substantive due process. See Stoot, 582 F.3d at 928.
Although this claim (unlike the Fifth Amendment claim) does not require a
showing that the confession was used against Tobias, “[t]he standard . . . is quite
demanding,” requiring something akin to “police torture or other abuse” or
comparable conduct that “shocks the conscience.” Id. (citations and internal
quotation marks omitted). For reasons similar to those discussed above with
respect to Tobias’s coerced confession claim, we conclude that, even construing
the facts in the light most favorable to Tobias, he failed to show that any
reasonable officer would have understood that the objective circumstances of the
interrogation here met the demanding “shocks the conscience” standard.
The facts of this case are materially different from previous cases in which
we have found a substantive due process violation for police conduct during an
interrogation. See, e.g., Cooper v. Dupnik, 963 F.2d 1220, 1248–50 (9th Cir. 1992)
(en banc) (finding a substantive due process violation when officers subjected a
suspect to “hours of mistreatment and what can fairly be described as sophisticated
psychological torture” and intentionally ignored the suspect’s repeated invocations
cognizable under § 1983 is not at issue in this interlocutory appeal, and we express no view on it.
11 of his right to counsel and right to silence and for the express “purpose of making
it difficult, if not impossible, for [the defendant] to take the stand in his own
defense”), overruled on other grounds, Chavez v. Martinez, 538 U.S. 760, 773
(2003). Tobias’s reliance on Crowe, 608 F.3d 406, is misplaced. Crowe is
distinguishable because there, one of the boys interviewed was “in shock over his
sister’s brutal murder,” and the boys were subjected to “hours and hours of
interrogation” featuring “the most psychologically brutal interrogation and tortured
confession” that one expert witness had ever observed. Id. at 431–32. Because
controlling precedent does not establish “beyond debate” that the officers’ conduct
here shocks the conscience, the officers are entitled to qualified immunity.
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
4. Defendants also challenge the district court’s denial of qualified
immunity as to Tobias’s fabrication-of-evidence claim (asserted under Devereaux
v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc)), but only to the extent that the
claim is based on the contention that Tobias’s confession is the asserted fabricated
evidence. Defendants are entitled to qualified immunity on this issue because we
have held that coerced confession claims are not cognizable under a Devereaux
fabrication-of-evidence theory. See Hall v. City of Los Angeles, 697 F.3d 1059,
1069–70 (9th Cir. 2012).
12 Each party shall bear its own costs.
VACATED IN PART, AFFIRMED IN PART, REVERSED IN PART.
13 FILED Tobias v. East, Nos. 18-56245+ FEB 25 2020 MOLLY C. DWYER, CLERK WARDLAW, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I respectfully dissent from the majority’s conclusion that the interrogation
tactics used by Detectives Michael Arteaga, Jeff Cortina, and Julian Pere did not
violate clearly established Fifth and Fourteenth Amendment law. 1 The detectives
in this case cursed at Art Tobias (then 13 years old), ignored his request for
counsel, repeatedly told him that he looked like a “cold-blooded killer,” falsely
said that somebody had “given him up,” shamed him for “dragging [his] family
into this,” promised him likely leniency if he confessed, and threatened him with a
harsh sentence if he stayed silent. After more than an hour of this treatment,
Tobias broke down and confessed to a murder he did not commit.
“It has . . . long been established that the constitutionality of interrogation
techniques is judged by a higher standard when police interrogate a minor.”
Crowe v. Cty. of San Diego, 608 F.3d 406, 431 (9th Cir. 2010). In Crowe, we held
that officers committed a Fourteenth Amendment substantive due process violation
when they “cajoled, threatened, lied to, and relentlessly pressured” two young
teenagers into falsely confessing. Id. at 432. That is precisely what Detectives
Arteaga, Cortina, and Pere did here.
1 I concur in Sections 1, 2, 3(a), and 4 of the memorandum disposition. 1 Crowe clearly established that the detectives’ conduct violated the
Fourteenth Amendment. And in light of Crowe, every reasonable officer would
also have understood that the interrogation tactics here were unconstitutionally
coercive, in violation of the Fifth Amendment. For these reasons, I would affirm
the district court’s conclusion that Detectives Arteaga, Cortina, and Pere are not
entitled to qualified immunity on the coercive interrogation and substantive due
process claims.