In Tobias v. Arteaga, published April 27, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court decision denying a summary judgment motion based on qualified immunity. Police arrested the plaintiff, then 13, on suspicion of murder. At the police station, two detectives intensively questioned the plaintiff for 20 minutes before reading him his Miranda rights. The plaintiff stated that he understood the rights. The detectives showed the plaintiff security camera footage that they asserted showed the plaintiff. The plaintiff said, "Could I have an attorney? Because that's not me." A detective responded, "But--okay. No, don't worry. You'll have the opportunity." The detectives continued to question the plaintiff. The two detectives then left the room, telling the plaintiff that his mother would be in to talk with him. Instead, a third detective entered and questioned the plaintiff aggressively for 40 minutes. The detective repeatedly told the plaintiff that his lack of confession was a "lie" and would make him look like a "cold blooded killer." The plaintiff confessed. A jury convicted the plaintiff of murder. The state court of appeal reversed the trial court's ruling on a motion to suppress the confession as coerced. On remand, the charges were dismissed. All parties now agree that the plaintiff was not involved in the murder. The plaintiff sued the detectives under 42 U.S.C. section 1983 for violation of the Fifth Amendment right against self-incrimination and Fourteenth Amendment substantive due process. The district court denied the defendant detectives' motion for summary judgment on the ground that the facts, viewed in the light most favorable to the plaintiff, established violation of clearly-established law.
The panel majority upheld denial of qualified immunity on the claim that the detectives violated the plaintiff's 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. When a suspect makes an unambiguous request for an attorney, he is not subject to further questioning until a lawyer has been made available. The plaintiff's statement was an unequivocal invocation of his right to counsel under clearly established law. The third detective further violated the plaintiff's rights by engaging in an unconstitutionally coercive interrogation, by threatening the plaintiff would receive less favorable treatment for exercising his rights. That the plaintiff was told he would be treated more harshly for "lying," rather than for failure to cooperate, did not make a difference. When a suspect tries to cooperate by telling the truth, but the police continue to demand his "cooperation" by confessing, the law clearly established that the interrogation was coercive. While the other two detectives did not directly participate in this part of the questioning, there was evidence suggesting they observed the questioning and might be liable for failure to intervene. The 9th Circuit remanded that issue to the district court. While the coercive questioning might violate the Fourteenth Amendment, cases finding such interrogation violated due process involved longer interrogations. Because the law was not settled on whether a shorter interrogation violated due process, the officers were entitled to qualified immunity on the Fourteenth Amendment claim.
A concurring and dissenting judge would have granted qualified immunity on the coercive questioning Fifth Amendment claim, on the ground that the law did not clearly establish the questioning was unconstitutionally coercive.
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