Charles Richard Riley v. James M. Dorton

93 F.3d 113, 1996 U.S. App. LEXIS 20568, 1996 WL 465655

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 16, 1996
• Docket: 94-7120
• Status: Published

Opinions

Reversed and remanded by published opinion. Judge MICHAEL wrote the majority opinion, in which Judge NORTON joined. Chief Judge WILKINSON wrote a dissenting opinion.

OPINION

MICHAEL, Circuit Judge:

Charles R. Riley sued James M. Dorton, a police detective, under 42 U.S.C. § 1983, alleging that Detective Dorton used excessive force against him during interrogation after his arrest.¹ The district court granted Detective Dorton’s motion for summary judgment because Riley suffered only de minimis injury at the hands of the detective. We reverse and remand for further proceedings because a § 1983 plaintiff is not required to show serious injury when physical force was used against him in the course of custodial interrogation.

I.

We review the district court’s grant of summary judgment de novo, viewing “the facts and inferences in the light most favorable to the nonmoving party,” here Riley. Donmar Ents., Inc. v. Southern Nat’l Bank of N.C., 64 F.3d 944, 946 (4th Cir.1995). “It is not our job to weigh the evidence, to count how many affidavits favor the plaintiff and how many oppose him, or to disbelieve stories that seem hard to believe.” Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (internal citation omitted). For summary judgment purposes, then, we must view the following facts, described by Riley in his deposition and affidavits, as true.

Riley was wanted by the authorities in Henrico County, Virginia, on charges of rape and related offenses. He was arrested in Norfolk on March 31, 1993, by Detective Dorton, the defendant in this case, and another officer, Detective Ross. Riley was taken briefly to the police department in Norfolk where he was placed in Detective Dorton’s police car for transport to the Hen-rico County Public Safety Department in Richmond. Once in the car either Detective Dorton or Detective Ross informed Riley of his right to remain silent and to have counsel.

During the 90-minute ride to Richmond, Detective Dorton made intimidating and insulting comments to Riley. Dorton threatened to take Riley into the woods, tie him to a tree and leave him there to die. Dorton next told Riley that an angry mob might be waiting outside the jail to beat him up before he could make it inside. In addition, Dorton called Riley’s family “stupid” and a “bunch of dumb country hicks.”

Upon his delivery to the Henrico County police headquarters, Riley was put in an interrogation room to face Detectives Dorton and Ross. Riley’s hands were cuffed behind his back. According to Riley, Detective Dor-ton

started up again [with insults] during his interrogation, and he was asking me, you know, you know, different things like my fat sister, is she a whore, and things like that, you know, and just trying to get me to breakdown.

Well, anyway, he makes a few more remarks like that. Then out of the blue he just says do you know what scum looks like, and I looked him dead in the eyes and I asked him have you looked in the mirror lately.

(Emphasis supplied.) This angered Detective Dorton, who “jumped up” from his chair, went over to Riley, and stuck the pointed tip of a pen a quarter inch up Riley’s left nostril. According to Riley, Detective Dorton “threatened to rip my nose open with the ink pen, threatened to throw me up in the corner of the room and beat me up.” Detective Dorton then slapped Riley, scratching him with his fingernails and causing Riley’s head to move an eighth to a quarter turn. The blow raised welts on Riley’s face, but did not break the skin. Detective Ross then urged Detective Dorton to stop, saying “we’re not going to have any Rodney King stuff up in here.”² Riley sustained no permanent injury from the incident. He claims, however, that the incident has caused him severe psychological distress, including nightmares, depression and anxiety.

Riley did not waive any of his rights or make any incriminating statements during the interrogation.

Riley filed a § 1983 complaint against Detective Dorton, claiming the use of excessive force. The district court granted the detective’s motion for summary judgment, holding that “Given the de minimum, albeit undoubtedly discomforting, injuries of the plaintiff, no viable claim for the unreasonable application of force exists.” The district court relied entirely on our decision in Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) (en bane), cert. denied,-U.S.-, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995) (holding that a prison inmate generally may not bring a § 1983 claim predicated on the Eighth Amendment right to be free from cruel and unusual punishment if his injury is de minimis ). Riley appeals, arguing that Norman v. Taylor does not apply because his claim is based on his Fifth and Fourteenth Amendment due process rights that prohibit the use of force during police interrogation.

II.

Detective Dorton’s counsel conceded at oral argument that the summary judgment record, read in the light most favorable to Riley, shows that Riley was struck while he was undergoing custodial interrogation.³ Riley’s § 1983 claim must survive summary judgment because no unjustified physical force may be used against a suspect during custodial interrogation, even if the suspect does not sustain serious physical injury. Gray v. Spillman, 925 F.2d 90, 93-94 (4th Cir.1991) (applying the longstanding principle that the use of force “in the course of custodial interrogation violates the fifth and fourteenth amendments of the Constitution”).⁴

Our sister circuits that have considered the question unanimously agree with Gray v. Spillman:

[T]he use of physical violence against a person who is in the presence of the police for custodial interrogation, who poses no threat to their safety or that of others, and who does not otherwise initiate action which would indicate to a reasonably prudent police officer that the use of force is justified, is a constitutional violation.

Ware v. Reed, 709 F.2d 345, 351 (5th Cir.1983); accord Wilkins v. May, 872 F.2d 190, 195 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990); Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.), cert. denied, 474 U.S. 967, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985); see also Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir.1994); Cooper v. Dupnik, 963 F.2d 1220, 1244-45 (9th Cir.1992), cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992).

The rule, recognized in Gray and the cases cited above — that no physical force is constitutionally permissible during interrogation— is based on the “due process right to be free from [police] conduct designed to overcome the accused’s will and produce an involuntary incriminating statement.” Weaver v. Brenner, 40 F.3d at 536. The due process violation is complete with the use of force, even if there is no confession. Id.; Cooper v. Dupnik, 963 F.2d at 1244.

Detective Dorton argues that there is no violation here because Riley “suffered, at most, de minimis injuries.” Brief of Appellee at 10. That is simply wrong. “The suggestion that an interrogee’s constitutional rights are transgressed only if he suffers[serious] physical injury demonstrates a fundamental misconception of the fifth and fourteenth amendments, indeed, if not our system of criminal justice.” Gray, 925 F.2d at 93. Police can violate a suspect’s constitutional rights under the Fifth and Fourteenth Amendments without leaving a “visible sign of any beating, such as bruises or scars.” Malinski v. New York, 324 U.S. 401, 403, 65 S.Ct. 781, 782, 89 L.Ed. 1029 (1945).

In the custodial interrogation context, the severity of a § 1983 plaintiffs injuries is relevant only to the question of damages, and a plaintiff may be awarded nominal damages and attorney’s fees even if his physical injury is de minimis. Gray, 925 F.2d at 93-94 & n. 1. Such relief is available under § 1983 for good reason. Merely suppressing any confession resulting from coercive police conduct does not adequately protect the rights of the detainee. The rule against the use of unjustified force in custodial interrogation is absolute, and it must be honored from the moment of arrest. Moreover, not every detainee will succumb to physical force and confess. It would be odd indeed to deny a suspect a § 1983 remedy simply because he has the strength of will to persist in refusing to confess while he is being smacked around.

Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) (en banc), cert. denied, — U.S. --, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995), does not apply here. Unlike the Norman defendant (a prison guard), Detective Dorton had no legitimate justification for the use of force. And unlike the Norman plaintiff (a convicted prisoner), Riley asserts Fifth and Fourteenth Amendment rights to be free from physical abuse during the course of custodial interrogation, rather than an Eighth Amendment right to be free from cruel and unusual punishment during imprisonment after conviction.

In Norman we held that so long as a prison guard has some legitimate rationale for the use of force against a prisoner, an Eighth Amendment claim “generally should not lie where any injury sustained by the plaintiff is de minimis.” Norman, 25 F.3d at 1263.⁵ In Norman, for example, the guard hit the prisoner-plaintiff on the thumb with a set of large brass keys while trying to enforce a prison rule against smoking in a restricted area. Id. at 1260. In addition, the prisoner had been making noise and yelling at other inmates during roll call. Id. at 1261.⁶

In this case, however, Detective Dorton had no legitimate justification for the use of any force. Riley was handcuffed and posed no security risk. Detective Dorton has come forward with no evidence that Riley was violating any rule necessary to the good order of the station house. Detective Dorton does not claim that he acted “in a good faith effort to maintain or restore discipline,” see Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Nor does Detective Dorton claim he hit Riley in order to quell a disturbance threatening the security of the station house, see Rankin v. Kle-venhagen, 5 F.3d 103 (5th Cir.1993). Indeed, Detective Dorton’s counsel conceded at oral argument that the record on summary judgment, when read in the light most favorable to Riley, demonstrates that Detective Dorton was simply “a cop who lost his cool.” See Courville v. Town of Barre, 818 F.Supp. 23, 26 (D.Mass.1993) (unprovoked slap may not be excused simply because it resulted only in de minimis injury). The sole motive for the use of force here was Riley’s single verbal insult to Detective Dorton. We have held consistently that mere verbal provocation never justifies the use of force by an officer against a person in custody. Miller v. Leathers, 913 F.2d 1085, 1089 (4th Cir.1990) (en banc) (inmate), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991); United States v. Cobb, 905 F.2d 784, 789 (4th Cir.1990) (pretrial detainee), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991).

A more fundamental distinction between this case and Norman is the difference between the interests sought to be protected. A duly convicted prison inmate is protected primarily by the Eighth Amendment’s prohibition against cruel and unusual punishments. Whitley, 475 U.S. at 327, 106 S.Ct. at 1087. A pretrial detainee, by contrast, is protected both by the Fifth Amendment’s protection against compelled self-incrimination and by the Fourteenth Amendment’s protection against “excessive force that amounts to punishment” before trial. Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 1871 n. 10, 104 L.Ed.2d 443 (1989); accord Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979); Cobb, 905 F.2d at 788-89. Pretrial detainees are entitled to broader protection than would be available under the Eighth Amendment alone because a pretrial detainee is presumed innocent of any crime until he is proven guilty after a fair trial or by a knowing and voluntary guilty plea. See Bell, 441 U.S. at 535-36, 99 S.Ct. at 1872-73. This distinction, we believe, is why Norman did not venture to overrule Gray v. Spill-man. Indeed, Norman relied primarily on Eighth Amendment cases and did not even cite Gray. Norman cited no case relating to a pretrial detainee’s right to be free from physical force while being interrogated.

Because Riley asserts the rights of a pretrial interrogee, his § 1983 claim survives summary judgment, even though he has not demonstrated the existence of any serious or lasting physical injury.⁷

III.

We recognize that

solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement.

Haynes v. Washington, 373 U.S. 503, 514-15, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963). We must, however, apply the longstanding rule recognized in Gray and reverse the award of summary judgment to Detective Dorton.⁸ Of course, the detective will have a full opportunity to convince a trier of fact that he used no unjustified force against Riley. In other words, Detective Dorton will have the chance to show that he “obey[ed] the law while enforcing the law.” See Spano v. New York, 360 U.S. 315, 320, 79 S.Ct. 1202, 1205-06, 3 L.Ed.2d 1265 (1959). We know that trials can be inconvenient and discomfiting, but we are convinced that a trial is required here to determine whether the bounds of due process were exceeded.

The judgment of the district court is reversed, and the ease is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

1 . Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

2 . The videotaped arrest of Rodney King in 1991 by Los Angeles police received much national attention. The degree of force used during the arrest led two officers to be convicted under 18 U.S.C. § 242 for violating King’s constitutional rights under color of law. See Jim Newton, 2 Officers Guilty, 2 Acquitted; Guarded Calm Follows Verdicts in King Case, L.A. Times, Apr. 18, 1993, at A1; Koon v. United States,-U.S.-, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

3 . Riley described his encounter with the detectives as an interrogation. According to Riley the detectives were trying to get him to "breakdown” and were using a "good cop/bad cop” interrogation technique. Police activity may be interrogation even if the police never ask the suspect a question. Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980). The test of whether police conduct amounted to interrogation is an objective one: were the “words or actions on the part of the police” reasonably likely to elicit some incriminating response. Id. An important factor in applying the test, however, is "the perceptions of the suspect.” Id.

4 . Riley appeared pro se in the district court and neither he nor Dorton’s counsel cited Gray v. Spillman to the district judge. See Model Rules of Professional Conduct Rule 3.3(a)(3) (lawyer must "disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”); Model Code of Professional Conduct EC 7-23; Va.Code of Professional Responsibility DR 7-102(3) & EC 7-20.

5 . Norman recognized that even with only de min-imis physical injury a prisoner could recover if the challenged conduct resulted "in an impermissible infliction of pain” or was otherwise “of a sort repugnant to the conscience of mankind.” Norman, 25 F.3d at 1263 n. 4 (quoting Hudson v. McMillian, 503 U.S. 1, 10, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted)); see also Williams v. Benjamin, 77 F.3d 756, 762 n. 2 (4th Cir. 1996) (“courts should be wary of finding uses of force that inflict 'merely' pain but not injury to be de minimis ”); Wilson v. Chicago, 6 F.3d 1233, 1236 (7th Cir.1993) ("even a murderer has a right to be free from torture") (Posner, J.), cert. denied, -U.S.-, 114 S.Ct. 1844, 128 L.Ed.2d 470 (1994).

6 . The cases relied upon by the dissent all present facts similar to those presented in Norman v. Taylor. In Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (per curiam), for example, a pretrial detainee had started a fire in the jail and had been sprayed with a fire extinguisher by the guard who had come to put out the fire. Obviously, the court found no constitutional violation there. None of the cases relied upon by the dissent present facts even remotely similar to those presented here, that is, none involve a pretrial detainee intentionally struck by an officer who lost his temper during the course of a custodial interrogation.

7 . Riley's deposition testimony and affidavits put into issue whether Detective Dorton in fact stuck a pen in Riley's nose, threatened to rip it open, and then slapped him. In support of its argument that summary judgment was proper, the dissent says that we "never [say] how a juiy might conceivably find plaintiff worthy of belief.” Post at 121. "Whether or not [Riley’s] testimony should be believed is a credibility determination that is not for us to make.” Gray v. Spillman, 925 F.2d at 95. That is for the trier of fact.

8 . Contrary to the dissent’s suggestion, see post at 122, our decision today will not "fuel[] a proliferation of frivolous lawsuits." We are simply reaffirming a longstanding rule that up to now has not thwarted legitimate law enforcement activities. Indeed, "no unjustified force during interrogation” has been the unquestioned rule in every one of the five other circuits that have had occasion to consider cases like this one. There is a good reason why the standard urged by the dissent is unacceptable for custodial interrogation: it would give police a license to hit interro-gees, so long as the police leave no marks.