Government Liability Update

Alleged Police Violation of Miranda Rights Violated Clearly Established Fifth Amendment Rights, but Violation of Fourteenth Amendment Rights Not Clearly Established

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.

 

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

Using Force against a Suspect to Stop the Suspect Is a Fourth-Amendment Seizure, even if the Suspect Evades Capture

In Torres v. Madrid, published March 25, 2021, the U.S. Supreme Court, 5-8 (with Justice Barrett taking no part in the decision), reversed a Court of Appeals ruling that a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim.  Officers executing a warrant at an apartment complex approached the plaintiff as she got into the driver's seat of her vehicle.  The plaintiff believed the officers were carjackers.  She hit the gas to escape.  The officers fired their pistols at her to stop her, hitting her twice.  She drove to a nearby parking lot, and stole a car to escape.  She was eventually arrested after she sought medical help.  She sued the officers under 42 U.S.C. § 1983 for use of excessive force.  She contended the shooting was an unreasonable seizure under the Fourth Amendment.  The district court granted the officers summary judgment, on the ground that the plaintiff was not seized under the Fourth Amendment.  The 10th Circuit affirmed.

The Supreme Court majority disagreed.  Reviewing common law (particularly debtor arrest law), the majority concluded that police touching of a person with the intent to arrest is an arrest, and thus a seizure under the Fourth Amendment, even if the person escapes.  The analysis does not change because the officers used force from a distance--firearms--to restrain the plaintiff.  What is required is corporal seizing or touching the defendant's body.  That can be accomplished by a bullet as by the tip of a finger.  The use of force standing alone is not a seizure, it must be accompanied by the intent to restrain, as opposed to force applied by accident or for some other purpose.  Because the officer's subjective intent and the suspect's subjective perception are not factors in the use of force analysis, the proper inquiry is whether the conduct objectively manifests an intent to restrain.  The seizure by force lasts only as long as the force is applied, unless the subject submits.  The majority rejected intentional acquisition of physical control of the suspect as the test.  In this case, the officers seized the plaintiff by shooting her with the intent to restrain her movement.

Three justices dissented.  They held that seizure of a suspect requires actual possession of the suspect.

Suit against City for Releasing Police Officer Records without Prior Notice to Officer Was Subject to Anti-SLAPP; because Law Required Production, the Plaintiff's Claims Were Unlikely to Succeed

In Collondrez v. City of Rio Vista, published March 16, 2021, the First District Court of Appeal, Division 3 affirmed in part and reversed in part a trial court's ruling on an anti-SLAPP special motion to strike.  When the plaintiff was a police officer, he received a notice of intent to impose discipline for allegedly falsifying a police report concerning an arrest and use of force.  The officer pursued his Skelly rights and administrative appeal, but settled before the appeal was arbitrated.  A provision of the settlement agreement required the city to give the plaintiff prior notice before releasing disciplinary notices and reports concerning him. When Penal Code section 832.7, requiring disclosure of police personnel records pertaining to sustained findings of dishonesty or making false reports, went into effect, the city received media requests under the California Public Records Act and section 832.7 for the plaintiff's records.  The city released them, giving the plaintiff notice before some but not all of the releases.  Due to media coverage, the plaintiff's then-current employer fired him.  The plaintiff sued the city for breach of contract, invasion of privacy, interference with prospective economic advantage, and intentional infliction of emotional distress.  The trial court denied the city’s anti-SLAPP suit as to the breach of contract and privacy counts, and granted it as to the other counts.  It found the entire action arose from acts in furtherance of free speech and in connection with an issue of public concern, but found the plaintiff made a showing he would likely prevail on the breach of contract and privacy counts.

The appellate court agreed that the action arose out of conduct protected by the anti-SLAPP statute.  The focus is the defendant’s activity giving rise to the statute.  Here, the activity is release of the plaintiff’s personnel information to media outlets.  That is the activity that gave rise to the plaintiff’s alleged harm.  The addition of breach of contract causes of action does not change the gravamen of the suit.  Providing information to news outlets involves a matter of public interest.  The court rejected the plaintiff’s argument that anti-SLAPP did not appear because the city had a nondiscretionary duty to comply with the CPRA.  The CPRA requires agencies to make determinations whether the requested records are subject to or exempt from disclosure, and whether public interest in nondisclosure outweighs that served by disclosure.  That determination is not immune from the chilling effect of potential litigation anti-SLAPP is designed to prevent. 

The appellate court disagreed with the trial court’s determination that the plaintiff was likely to prevail on the breach of contract and invasion of privacy claims.  The court concluded the disclosure was required by Penal Code section 832.7(b)(1)(C).  The plaintiff contended that the statute required a “sustained finding” of dishonesty, which requires completion of the administrative appeal process.  The appellate court concluded that the “sustained finding” language includes an agency finding that remains in place because the plaintiff settles the case before his administrative appeal is heard.  The appellate court further rejected the plaintiff’s argument that the agency failed to properly redact information in the produced files as required by statute.

Using "Police Lead" Position on Passively Resisting Suspect Violates Clearly-Established Law

In Rice v. Morehouse, published March 8, 2021, the 9th Circuit reversed partial summary judgment granted to police officer defendants in a police use of force case.  An officer made a traffic stop of plaintiff for changing lanes without signaling for five seconds first. The plaintiff showed the officer his license on command, but refused to show registration and proof of insurance.  The officer called in a "Code 3 assist," which is the most urgent request for backup officers.  The plaintiff refused the officer's orders to exit the car.  The officer called in an update downgrading the backup assist.  The arriving officers were not on the frequency and did not receive that call.  Officers including the defendants arrived.  The initial officer told the backup officers that the plaintiff was not complying with her instructions, she she just needed somebody to help her get the plaintiff out of the car.  The plaintiff continued to refuse to exit the car, but did roll down his window and unlock the car.  The defendant officers pulled the plaintiff out of the car.  The plaintiff asserts he did not resist.  After they removed the plaintiff, the defendant officers attempted to hold the plaintiff in a "police lead" position, gripping both his arms, tripping him, and throwing him to the ground face-first as a "takedown" maneuver.  Officers repeatedly struck and kneed the plaintiff on the ground.  The district court granted the defendant officers who participated in the takedown summary judgment for the takedown, based on qualified immunity.  The rest of the case against the defendant officers for the scrum after the takedown proceeded to trial, at which the defendants prevailed.  The plaintiff appealed.

The 9th Circuit first ruled that the plaintiff's appeal from the final judgment would be interpreted to permit appeal from the partial summary judgment in favor of the officer defendants, particularly given the centrality of the issue in the district court and the appellate briefs.  The court determined that, resolving material issues of fact in the plaintiff's favor, a reasonable jury could find that the officers used unreasonable force.  The plaintiff's passive resistance did not present an emergency, the purported traffic offense was minor, a jury could find that the officers could not have reasonably believed the plaintiff had committed a serious crime and that he did not present an immediate threat to the officers or others, and that the plaintiff was not actively resisting arrest but rather passively resisting arrest.  The officers also failed to consider what other tactics, if any, were available.  Officer failure to consider clear, reasonable, and less intrusive alternatives to the force used militates against finding the use of force reasonable.  The law clearly established that use of substantial force against a passively resisting person violated the Fourth Amendment.  The officers therefore were not entitled to summary judgment based on qualified immunity.

Officers Did Not Violate Clearly-Established Law by Using Canine to Bite Suspect Who Refused to Exit Car

In Hernandez v. Town of Gilbert, published March 4, 2021, the 9th Circuit affirmed the district court's grant of summary judgment to a police officer defendant based on qualified immunity.  Police noticed the plaintiff's car swerving.  The plaintiff did not pull over in response to police lights or siren.  The plaintiff drove into his garage and tried to close the garage door by remote control.  The police prevented the door from closing.  An Officer repeatedly ordered the plaintiff to exit the car.  Plaintiff repeatedly refused.  The officer attempted to force the plaintiff out of the car by using control holds.  The plaintiff resisted the holds.  The officer used pepper spray on the plaintiff, without effect.  He warned the plaintiff again, multiple times, that he was under arrest and needed to get out of the car.  He also warned the plaintiff multiple times that a police dog would bite him if he did not step out.  The plaintiff continued refusing.  The defendant officer then commanded his police canine to bite the plaintiff.  He warned the plaintiff before the bite.  The plaintiff continued resisting.  The dog bit plaintiff's arm for 50 seconds in total.  The officers continued to order the plaintiff out of the car.  The plaintiff replied, "Alright," but did not move.  After the dog released the plaintiff, the officers succeeded in pulling the plaintiff out.  The plaintiff was intoxicated.  The plaintiff sued the officer who commanded the dog to attack for use of excessive force.

The 9th Circuit ruled that there was no law as of the date of the incident that gave a reasonable officer fair warning that using a police dog on a noncompliant suspect, who had resisted lesser methods of force to complete his arrest, was unconstitutional.  Case law had established that use of a police dog was subject to excessive force analysis, and that use of a police dog on a suspect who has fully surrendered and is under the officer's control is unreasonable.  But no case law held that use of a police dog on a suspect who never actually surrendered at any point, and who had to be dragged from his car, violated the constitution.  Although the plaintiff argued he surrendered by saying "Alright," the video of the incident showed that he in fact continued to resist.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.

District Court Errs in Conflating Fourth Amendment Law on Police Use of Force with Broader Standards of California Negligence Law

In Tabares v. City of Huntington Beach, published February 17, 2021, the 9th Circuit Court of Appeals reversed the district court's grant of summary judgment on the plaintiff's claims for negligent use of force under California law.  The defendant police officer observed the plaintiff's decedent acting erratically on the street.   The officer parked, exited his vehicle, and asked the decedent to stop walking to talk.  The decedent refused.  The officer ordered the decedent to stop multiple times.  The decedent eventually turned toward the officer while speaking loudly and aggressively.  The decedent approached the officer with fists clenched.  The officer backed up while instructing the decedent to stop.  The officer tased the decedent, with no visible effect.  The decedent punched the officer in the face.  The two fought.  The officer put the decedent in a headlock.  The officer forced the decedent to the ground and struck him several times.  The suspect grabbed at the officer's belt.  The officer shouted, "Let go of the gun."  The officer felt something being taken from his belt.  It turned out to be the officer's flashlight.  The officer stood, drew his gun, and retreated about 15 feet from the decedent.  He saw the decedent holding what the officer should have known was the flashlight.  The officer shot the decedent six times, shouted, "Get down," and shot him a seventh time.  The decedent's mother sued the officer and the city under 42 U.S.C. § 1983 for violation of the Fourth Amendment, and asserted California law claims for negligence, battery, and violation of the Bane Act.  The district court granted summary judgment to the defendants on all claims.  It ruled that it rejected the negligence claim for the same reasons that it rejected her federal claims:  after multiple ignored warnings and sustained combat, the officer was objectively entitled to an inference that no amount of warnings or non-lethal means would safely subdue the decedent.  The plaintiff appealed only her negligence claim.

The 9th Circuit ruled that the district court had improperly conflated the standards for use of force under the Fourth Amendment with the broader standards that apply under California negligence law.  While federal law generally focuses on the tactical conduct at the time of shooting, under California law the officer's pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if the use of force at the time of shooting might be reasonable in isolation.  Under these standards, a reasonable jury could conclude that the officer should have suspected the decedent was mentally ill, and unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  Further, under either California or federal standards, a reasonable jury could conclude that the officer's use of deadly force was unreasonable because the suspect was 15 feet away, was not approaching, and was armed only with the officer's flashlight when the officer shot him without warning.  Further, that the officer yelled a warning before firing the final shot, then fired before the decedent had time to understand or comply with the command, could lead a reasonable jury to find the number of shots was unreasonable.

The Law Clearly Establishes That a Passenger Is Seized under the Fourth Amendment when a Police Officer Shoots at a Vehicle, and that Use of Deadly Force toward a Fleeing but Non-Threatening Vehicle Violates the Fourth Amendment

In Villaneuva v. Cleveland, filed January 28, 2021, the 9th Circuit Court of Appeals affirmed the district court's denial of summary judgment in a 42 U.S.C. section 1983 case based on qualified immunity.  Police officers observed a vehicle commit various traffic violations.  When the vehicle left the scene, the officers gave chase in an unmarked vehicle.  The vehicle stopped at a dead-end street.  The officers stepped out of their vehicle and stood at their vehicle's sides.  The suspect made a three-point turn, and began driving slowly in the general direction of the officers.  Although the facts are disputed, viewing the facts in the light most favorable to the plaintiffs, the turn was made in a controlled manner, the suspect vehicle was moving very slowly, and the  vehicle did not drive directly at the officers, their vehicle, or anyone else.  The officers shot at the vehicle, killing the driver and wounding the passenger. The passenger and the driver's parents sued the officers. The district court concluded that the passenger had standing to sue the officers; that there were too many disputed facts to find qualified immunity on summary judgment; and that viewing the facts in the light most favorable to the plaintiffs, a reasonable jury could find the officers used excessive force in light of clearly established law.

The 9th Circuit agreed.  It rejected the officers' argument that because they intended to shoot only the driver, not the passenger, the passenger had no Fourth Amendment interest.  Because the officers intentionally shot at the vehicle to stop it, both of the vehicle's inhabitants were seized under the Fourth Amendment.  Although case law has ruled a passenger who falls out of a vehicle and is accidently run over may not have a Fourth Amendment interest because he is not seized by the officers, case law clearly establishes that when officers intentionally use force toward more than one person and injure one of them, they have seized that person regardless of whether they subjectively intended to use force toward that person.  The 9th Circuit further ruled that the officers violated clearly established law by using deadly force against a fleeing vehicle that posed no threat to them or anyone else.  Officers may use deadly force to stop a fleeing suspect only if the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or to others.  The 9th Circuit has consistently found use of deadly force to stop a slow-moving vehicle unreasonable when the officers could have easily stepped out of the vehicle's path to avoid danger.  Use of deadly force against a stopped or slow-moving vehicle has been found reasonable only when the driver was trying to avoid arrest in an aggressive manner involving actual or attempted acceleration of the vehicle.  Taking the facts in the light most favorable to the plaintiffs, the three-point turn was performed cautiously, the vehicle was not aimed directly at the officers, was moving very slowly, and was not accelerating when the officers fired.  Under that version of the facts, the officers violated clearly-established law.

Suspect Whose Un-Mirandized Confession Is Used in Criminal Prosecution against Him May Assert Fifth Amendment Claim against Officer Who Took Confession

In Tekoh v. County, et al.,  published January 15, 2021, the 9th Circuit Court of Appeals reversed a defense verdict in a 42 U.S.C. section 1983 case and remanded it for retrial.  The plaintiff, an employee at a county medical center was accused of sexual assault on a patient.  An investigating sheriff's deputy went to the plaintiff's workplace, and the two went to a nearby private room to talk.  Although the deputy interviewed the plaintiff, he did not advise him of his Miranda rights.  By the end of the questioning, the plaintiff had written a statement admitting the assault and apologizing for it.  The plaintiff tsetified that the officer coerced and threatened him into writing and signing the statement, and dictated the contents of it.  The deputy testified that the plaintiff told the deputy he had made a mistake, and at the deputy's request wrote and signed the statement without further prompting.  The plaintiff was arrested and criminally charged.  His statement was used in the criminal prosecution.  A first trial ended with a mistrial.  A second trial, at which the plaintiff introduced expert evidence on coerced confessions, ended in acquittal.  The plaintiff then sued the deputy for violating the plaintiff's Fifth Amendment right against self incrimination.  The district court declined to instruct the jury that it should find in his favor on that claim if it found that the deputy obtained statements from him in violation of Miranda that were used in the criminal case against him.  Instead, the court instructed the jury that the issue was whether the confession was coerced.  The jury found in favor of the deputy.

The 9th Circuit held that the jury instruction was an incorrect statement of the law.  In Dickerson v. United States (2000) 530 U.S. 428, the Supreme Court held that Miranda  is a rule of constitutional law that could not be overruled by constitutional action.  Based on that decision, the Court of Appeals concluded that the right of a criminal defendant against having an unMirandized statement introduced in the prosecution's case in chief is a right secured by the Constitution; and thus such a defendant has a claim that his Fifth Amendment right against Self-Incrimination was violated.  Neither United States v. Patane (2004) 542 U.S. 630 or Chavez v. Martinez (2003) 538 U.S. 760 provides otherwise.  Both were fractured decisions, in which no common thread of the separate opinions supported the proposition that a criminal defendant whose unMirandized statement is used against him in a criminal prosecution does not have a Fifth Amendment claim.  Previous 9th Circuit decisions and the decisions of other circuits support the conclusion.  The district court's erroneous instruction was not harmless; it imposed an extra element for the plaintiff to prove--whether the confession was coerced.  Further, the issue of whether the plaintiff was in custody when he gave the statement--a necessary element to the Fifth Amendment claim--was never submitted to the jury.