• The Doctrine of Qualified Immunity
• The Fifth Amendment Right Against Self-Incrimination
• The Fourteenth Amendment Right to Due Process
• A Fourteenth Amendment Due Process Violation That “Shocks the Conscience”
• A Police Officer’s Duty to Intervene

(1) An officer’s violation of a suspect’s constitutional rights will not result in the officer’s civil liability unless the unlawfulness of the officer’s actions was clearly established by prior case law.  (2) An in-custody suspect’s clear and unequivocal invocation of his right to the assistance of counsel, when ignored by law enforcement and results in incriminating statements that are used in trial against the suspect, is a Fifth Amendment violation.  (3) A police officer who, while interrogating a suspect, threatens to tell the court or a prosecutor that the suspect failed to cooperate by refusing to waive his or her rights and/or to confess, violates that suspect’s due process rights, renders any subsequent confession inadmissible, and exposes the officer to potential civil liability.  An interrogation that is so coercive that it “shocks the conscience” violations the Fourteenth Amendment.  Police officers have a duty to intercede when they are aware that their fellow officers are violating the constitutional rights of another person.

On the evening of August 17, 2012, 13-year-old Art Tobias (“Plaintiff”), allegedly a budding gang member of the Mara Salvatrucha (better known as MS-13) criminal street gang, “participated” in the murder of Edwin Cruz.  (The details of his “participation” in this murder are not in issue in this case, and are not discussed.)  Shortly thereafter, in the early morning hours of the 18th and in another part of Los Angeles near the downtown area, Alex Castaneda was also shot and killed in what appeared to be part of an ongoing feud between the Mara Salvatrucha and 18th Street gangs.   A security camera on a nearby building caught the shooter on videotape.  Detectives investigating Castaneda’s murder showed the video to another LAPD gang enforcement officer and others, all of whom tentatively identified plaintiff as the shooter.  Plaintiff was therefore arrested and brought to an LAPD station for interrogation.  Detectives Michael Arteaga, Julian Pere, and Jeff Cortina participated at various points in the interrogation, with Detectives Pere and Cortina starting it off.   Plaintiff initially denied being a gang member, although he admitted that his previous school “had [him] on gang file” for being a part of MS-13.  (Plaintiff was later determined to be a member of the “M.S. 13 Tiny Winos” gang, and went by the moniker of “Casper.”) After about 20 minutes of background questioning, focusing on his ability (as a 13-year-old) to understand the difference between right and wrong (as required by In re Gladys R. (1970) 1 Cal.3rd 855, and Pen. Code § 26.), plaintiff was read his Miranda rights which he said he understood.  He was then shown the security camera video of the shooter.  Plaintiff’s immediate response was; “Who is that ”   When told that that was him, he immediately, and repeatedly, denied that he was the person depicted in the video.  When told that Castaneda’s murder occurred near the downtown area of L.A., plaintiff claimed that he was miles away at the time, in Arcadia, and that a friend’s mother had dropped him off at his home shortly before midnight.  Detectives Pere and Cortina persisted in accusing plaintiff of being the shooter, falsely telling him that “somebody gave you up.”  But then, unexpectedly, plaintiff interrupted and asked: “Could I have an attorney? Because that's not me.”  In response to this request, he was told only that he would later “have the opportunity.”  But then the interrogation continued without any further references to an attorney, and with plaintiff continuing to deny having shot Castaneda.  After about 35 minutes, Detectives Pere and Cortina gave up, telling plaintiff he would be booked for murder despite his denials.  Leaving him alone in the interrogation room, they told him that his mother would be in to see him shortly.  Instead, Detective Arteaga came in, pulled a chair up close to him (i.e., got in his face), and began the questioning anew, but now “in an aggressive tone.”  Over the next 40 minutes, Detective Arteaga lied to plaintiff about somebody having given him up, cursed at him, and told him that by failing to confess he looked like a “cold-blooded killer.”  Detective Arteaga brought up plaintiff’s mother multiple times, telling him that he (the detective) had “just talked to your mom right now, okay? She’s in there crying her eyes off (sic). She’s crying like a baby, bro.” Detective Arteaga later told plaintiff:  “Your mom’s gone. She—she left crying.” He also told plaintiff that his mother had identified him from the video (a true statement, but an identification she later recanted).  The detective told plaintiff that by denying his crime, he was going to “drag [his] mom into this” by forcing her to take the stand to testify against him.  He also told plaintiff that by continuing to “lie,” he was going to suffer a harsher punishment and that he would lose the “goodwill” he would otherwise get by being so young.  He then told plaintiff that as a 13-year-old, he would typically get some help, but that “we can’t help you if you’re going to sit here and lie and . . . just be a cold-blooded killer.”  While telling him that they had a lot more evidence on him than he knew, he was also told that the district attorney was going to see him as nothing but a “cold blooded killer,” and that the court as well would “think you’re a big time gang killer who didn’t want to tell the truth, who is down for the hood. It’s going to look like you're down—you're so down for the hood that you didn't want to speak. So they might throw the book at you.” After repeating “nine separate times” in a 90-minute interview that his refusal to tell the truth made him look like a “cold blooded killer,” plaintiff finely relented, and confessed.  But as soon as plaintiff’s mother was allowed in to see him, he immediately recanted his confession, telling her that “they forced me to.”  With murder charges filed in Juvenile Court, the magistrate denied plaintiff’s motion to suppress his confession, ruling that his attempt to invoke his right to counsel was not “clear and unambiguous,” at least under these circumstances.  With the magistrate making a true finding as to the allegation of murder, plaintiff appealed.  The California’s Second District Court of Appeal (Div. 7) reversed, ruling that plaintiff had in fact made a clear and unequivocal invocation of this right to the assistance of counsel under Miranda, and that his confession should have been suppressed.  (See In re Art T. (Feb. 11, 2015) 234 Cal.App.4th 335, briefed at California Legal Update, Vol. 20, #4, Apr. 4, 2015.  Plaintiff was also convicted of having murdered Edwin Cruz, a matter which is not the subject of this appeal.)  Plaintiff subsequently filed this lawsuit in federal court pursuant to 42 U.S.C. § 1983, arguing that the civil defendant LAPD detectives had violated his Fifth Amendment right against self-incrimination, and his Fourteenth Amendment right to due process.  The federal district court denied the civil defendants’ motion for summary judgment (i.e., to dismiss the case), ruling that the matter must go to trial.  The defendant detectives appealed.

The Ninth Circuit Court of Appeal reversed in part, and affirmed in part, with one justice dissenting on the Fifth Amendment issue.  For purposes of this civil suit, the parties agreed that plaintiff had in fact effectively invoked his right to counsel (as held by California’s Second District Court of Appeal in In re Art T., as noted above.), that the interrogation should have been terminated at that point, and that plaintiff did not murder Alex Castaneda.  The issues here were what, if any, civil liability the detectives may have incurred by ignoring plaintiff’s attempt to invoke his Miranda rights, a Fifth Amendment issue, and whether the interrogation tactics used by Detective Arteaga violated plaintiff’s Fourteenth Amendment right to due process. 

(1) Qualified Immunity:  Before the Fifth and Fourteenth Amendment issues were considered, however, the Court rehashed the rules for when a police officer is protected from being held civilly liable by the doctrine of qualified immunity.  The rule is this:  Officers are entitled to qualified immunity, protecting them from being civilly sued under 42 U.S.C. § 1983, “unless (1) they violated a federal . . . constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” (Italics added; District of Columbia v. Wesby (2018) __ U.S. __ [138 S.Ct. 577, 589].)  In other words, assuming for the sake of argument that a criminal defendant’s constitutional rights were in fact violated, a court must then consider whether the unlawfulness of an officer’s actions are “clearly established.” In determining this, the courts are to consider whether “the contours of the right (at issue) were already delineated with sufficient clarity to make a reasonable offic[ial] in the defendant’s (i.e., the police officer’s) circumstances aware that what he was doing violated the right.”  (Costanich v. Dep’t of Soc. & Health Servs. (9th Cir. 2010) 627 F.3rd 1101, 1114.)  “While there does not have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the (officer’s conduct) 'beyond debate.’”  (Wesby, 138 S.Ct. at 590.)  Simply put, the illegality of an officer’s actions at issue must have been sufficiently clear as established by prior case law (even if there is no case directly on point) so that a reasonable officer in the civil defendant’s position would (or should) have known that what he is doing is wrong.  Appellate courts will often merely skip the determination as to whether an officer actually violated a suspect’s rights, assuming—without deciding—for the sake of argument that he did, and go straight to the discussion about how the unlawfulness of the officer’s actions was or was not clearly established.  With those standards in mind, the Court here considered whether, with the case law then existing, the detectives should have known that they were violating the plaintiff’s rights.   

(2) Fifth Amendment, Self-Incrimination:  It has been held—and is in fact “clearly established”
—that an officer violates the Fifth Amendment’s self-incrimination clause when he continues an interrogation despite a legally effective clear and unequivocal attempt to invoke one’s right to counsel, and the resulting incriminating statements are used in trial (see Note #2, below).  The Court here agreed with the California Appellate Court’s decision that plaintiff’s comment; “Could I have an attorney? Because that's not me”, was an unequivocal invocation of his right to counsel under clearly established law, citing three prior cases where although the suspect used “can” instead of “could,” the suspect had been held to have clearly invocated his rights.  The Court further rejected authority from other cases cited by the officers as irrelevant, where the suspect used equivocal language:  E.g., “I think I would like to talk to a lawyer,” "Maybe I ought to see an attorney,” and “[I] might want to talk to a lawyer.”  Therefore, it being a “clearly established” constitutional violation of plaintiff’s Fifth Amendment rights when the detectives ignored his attempt to invoke, and the resulting confession was in fact used against him at trial, the Court held (with one justice dissenting) that the district court correctly denied the defendant officers’ motion for summary judgment on this issue.  

(3) Detective Arteaga’s Interrogation Tactics and the Fourteenth Amendment:  The issue here is whether the interrogation tactics used by Detective Arteaga were unconstitutionally coercive (a Fourteenth Amendment due process violation), and if so, were they so coercive that plaintiff is entitled to civil damages as a result.  It has been held that “[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.”  Under such circumstances, the resulting statements are considered to be involuntary. (Cunningham v. City of Wenatchee (9th Cir. 2003) 345 F.3rd 802, 810.)  In determining whether a statement is involuntary, “[c]ourts . . . often consider a number of factors, including,” but not limited to: “(T)he 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 (9th Cir. 2003) 350 F.3rd 1024, 1027.) As relevant to this case, a court will also consider whether there was any “suggestion by a law enforcement officer ‘that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor,’” such an interrogation tactic being, on its face, unconstitutionally coercive.  “Threatening that a suspect will ‘receive less favorable treatment’ for ‘exercis[ing] [his] rights’ is so coercive that it always ‘risks overcoming the will of the run-of-the-mill suspect.’” (United States v. Harrison (9th Cir. 1994) 34 F.3rd 886, 891-992; quoting Collazo v. Estelle  (9th Cir. 1991) 940 F.2nd 411, 426.)  In other words, threatening to tell a court or a prosecutor that the suspect failed to cooperate by refusing to waive his or her rights and/or to confess violates that suspect’s due process rights, rendering any subsequent confession to be inadmissible.  It also exposes the interrogating officer to potential civil liability.  The Court referred to this as being a “bright line rule,” noting that “there are no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor.”  The Court therefore found that Detective Arteaga did in fact violate plaintiff’s Fourteenth Amendment rights by repeatedly asserting that the court would consider plaintiff to be nothing less than a “cold blooded killer” and might, as a result, “throw the book at (him)” if he did not confess.  This being “clearly established law,” Detective Arteaga should have been aware of it.  As for Detectives Pere and Cortina, it is unclear from the record whether they were aware of how Detective Arteaga was handling the interrogation, and if they were, whether they had the opportunity to intercede.  It is plausible that Detectives Cortina and Pere watched Arteaga's questioning from an adjoining room and were aware of his violation of plaintiff’s Fourteenth Amendment rights as it occurred.  It they were, then they had a duty to stop the violation of plaintiff’s constitutional rights.  “(P)olice officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” (Cunningham v. Gates (9th Cir. 2000) 229 F.3rd 1271, 1289.)  If they were so aware, and they had the opportunity to intercede, then their failure to do so subjects them to the same civil liability as the detective who actually used the coercive interrogation tactics.  This is an issue that must be dealt with upon remand.  All this, however, does not end the inquiry.  The Court further noted prior case law to the effect that aside from the issue of whether an officer used coercive interrogation tactics, it must also be shown before a “substantive due process” violation will be found that the officer engaged in an “abuse of power [that] ‘shocks the conscience’ and ‘violates the decencies of civilized conduct.’” (Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 928.)  If it did not, then the officers are entitled to qualified immunity from civil liability.  To meet this standard, it is not necessary that there be physical abuse.  Psychological abuse is sufficient.  Also, the courts hold officers to a higher standard when we’re talking about an underage suspect; i.e., a minor.  (See Crowe v. County of San Diego (9th Cir. 2010) 608 F.3rd 406, 431, and Note #3, below.) But in comparing Detective Arteaga’s interrogation tactics with that used in two prior cases (e.g., Crowe, supra, and Cooper v. Dupnik (9th Cir. 1992)963 F.2nd 1220.), where the actions of the interrogating officers did in fact “shock the conscience,” the Court found plaintiff’s case here to be relatively low key.  In Crowe, for instance, the Ninth Circuit found that the two suspects were minors, and that the officers “isolated and subjected [the boys] to hours and hours of interrogation during which they were cajoled, threatened, lied to, and relentlessly pressured by teams of police officers.”  (Crowe, supra, at p. 432.)  In Cooper, the Court “found a cognizable substantive due process violation where (the) officers deliberately ignored an adult suspect’s repeated invocations of his right to counsel, isolated him at the police station, and subjected him to ‘hours’ of verbal interrogation where he was ‘hammered, forced, pressured, emotionally worn down, stressed, and infused with a sense of helplessness and fear.’”  (Cooper, supra, at pp. 1228-1233, 1248-1250.)  Although the Court in this current case found that plaintiff’s interrogation “comes close to the level of ‘psychological torture’ that (the justices) have held is not tolerated by the Fourteenth Amendment (due process clause),” it fails to rise to the level of abuse shown in Crowe or Cooper in one major respect; i.e., the length of the interrogation.  While both Crowe and Cooper involved “hours and hours” of “psychological torture,” the questioning of the plaintiff in this case was relatively low key, involving less than two hours.  As such, the Court found here that “it was not clearly established that the offending tactics ‘shocked the conscience’ when used over a shorter period of time. Because controlling precedent does not establish ‘beyond debate’ that the officers’ conduct violated the Fourteenth Amendment, they are entitled to qualified immunity on this claim.”  So the district court’s finding in this issue (i.e., denying the officers’ motion for summary judgment) was reversed.  The case was remanded to the district court for further proceedings.

Note #1:  In a footnote (pg. 575, fn. 1), the Court also noted that the officers challenged the district court’s denial of their motion for summary judgment on the plaintiff’s claim that the officers “fabricated evidence” via the coerced confession; an alleged Fifth and Fourteenth Amendment due process issue.  (See Devereaux v. Abbey (9th Cir. 2001) 263 F.3rd 1070.)  However, the Court noted in this footnote that it has previously been held “that coerced confession claims are not cognizable under a Devereaux fabrication-of-evidence theory,” citing Hall v. City of Los Angeles (9th Cir. 2012) 697 F.3rd 1059, 1069-1070.  Coercing a confession is not the same thing as fabricating evidence.  Therefore, per the Court: “‘[O]fficers are entitled to qualified immunity under § 1983 unless . . . they violated a federal statutory or constitutional right.’ District of Columbia v. Wesby, 138 S.Ct. 577, 589 . . . . As the officers cannot have violated a constitutional right under a fabrication-of-the-evidence theory, the officers are entitled to qualified immunity on this claim,” reversing the trial court’s ruling to the contrary.

Note #2:  Miranda Violations and the Fifth Amendment:  On the Fifth Amendment, self-incrimination issue, above, notice that the rule is that a simple Miranda violation, by itself, does not necessarily also violate the Fifth Amendment.  In Chavez v. Martinez (2003) 538 U.S. 760, the U.S. Supreme Court found that a simple Miranda violation, by itself, does not also violate the Fifth Amendment constitutional protection against self-incrimination.  It is not until the results of a Miranda violation are actually used in court against the defendant that the defendant’s Fifth Amendment self-incrimination privilege has been violated.  United States v. Patane (2004) 542 U.S. 630, reiterated the rule that the Fifth Amendment (and perhaps even the Miranda rule itself) is a “trial right,” and is therefore not violated by a police officer who ignores the Miranda admonishment and waiver requirements unless the results of the ensuing interrogation are actually used in court.  (See also United States v. Verdugo-Urguidez (1990) 494 U.S 259, 264 [108 L.Ed.2nd 222, 232]; and People v. Davis (2005) 36 Cal.4th 510, 552.) 

Note #3:  Questioning Minors:  On another issue, it is noticed that the Court also mentions—albeit only in passing (at p. 584.)—that officers are to be held to a higher standard when questioning minors; i.e., juveniles.  In fact, there is a whole body of case law on this issue, dictating that an officer has a constitutional duty to lighten up a bit when it comes to questioning mentally and emotionally immature suspects, which includes minors.  It is recognized, for instance, that juveniles present a unique problem when considering the obtaining of incriminatory statements in that it is estimated that of the false confessions obtained, more than one third (35%) of proven false confessions are from individuals under the age of 18.   (In re Elias V. (2015) 237 Cal.App.4th 568, 578, 587-600; citing “Drizin & Leo, The Problem of False Confessions in the Post-DNA World (2004),” 82 N.C. L. Rev. 891, 902, 944–945, fn. 5.)  “The Supreme Court ‘has emphasized that admissions and confessions of juveniles require special caution.’”  (Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1008; quoting In re Gault (1967) 387 U.S. 1, 45; see also In re I.F. (2018) 20 Cal.App.5th 735, 763; and Balbuena v. Sullivan (9th Cir. Aug. 17, 2020) 970 F.3rd 1176, 1186.)   “When a confession by a minor is involved and ‘counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary . . . .’” (In re Gault, supra, at p. 55; see also In re T.F. (2017) 16 Cal.App.5th 202, 211.)  Recognizing the inherent vulnerability of minors when faced with potential criminal charges, California’s Legislature has enacted a number of statutory protections insuring that officers respect the minor’s constitutional rights.  For instance, per Welf. & Inst. Code § 625, any juvenile “taken into temporary custody” (i.e., has been “arrested”) per Welf. & Inst. Code §§ 601 or 602, or for having violated a court order or escaping confinement, must be read a Miranda-style admonishment by the arresting officer at some time prior to release, whether or not the juvenile is to be questioned.  Also, effective January 1, 2021 (SB 203), section 625.6(a) of the Welf. & Inst. Code was amended to provide that “prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 17 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference. The consultation may not be waived.”  There are exceptions, and a violation of this requirement does not necessarily require the suppression of the minor’s statements (see Subds. (b), (c) and (d)).  Also, Welf. & Inst. Code § 626.8(a) makes the electronic recording requirements of an interrogation, as described in Pen. Code § 859.5, applicable to juvenile murder suspects who may be adjudged wards of the juvenile court pursuant to W&I § 602.  The point of all this is that both the courts and the Legislature are looking out for the welfare of minors in California, no doubt as a direct result of prior abuses in the interrogation room.  So take heed of this trend, and note that you must take into account the vulnerabilities of the immature mind and lighten up a bit when it comes to questioning minors, remembering that it is your obligation to obtain the truth, and not necessarily just a confession.