In Tobias v. Arteaga, the Ninth Circuit Court of Appeals reversed the denial of qualified immunity for officers with regards to a plaintiff’s Fourteenth Amendment substantive due process claim. The Court held that detectives interrogating a minor suspect in a murder investigation were entitled to qualified immunity because it was not clearly established that their interrogation tactics “shocked the conscience” when used over a short period of time.
Background
In August 2012, Alex Castaneda was shot and killed in Los Angeles. A security camera on a nearby building captured video of the shooter. Los Angeles Police Department (“LAPD”) Detective Julian Pere and another detective identified 13-year-old Art Tobias as a suspect after showing the video to an LAPD gang enforcement officer who had seen photos of Tobias earlier that evening. However, Tobias was not involved in Castaneda’s murder.
Detective Michael Arteaga and another detective went to Tobias’s school. A school dean could not identify the shooter from the video initially. After the leaving the meeting with the detectives, however, the dean changed his mind and informed the detectives of his changed opinion that Tobias resembled the shooter in the video. The detectives arrested Tobias at the school and brought him to the police station.
Tobias was brought into an interview room with Detective Jeff Cortina and Detective Pere for interrogation. After initial background questions, the detectives asked whether Tobias was affiliated with a gang. Tobias denied such affiliation. Approximately twenty minutes into the interrogation, the detectives read Tobias his Miranda rights. Tobias stated that he understood his rights.
The detectives then showed Tobias the security camera shooting video. When Tobias questioned who the shooter was, Detective Pere said that it was Tobias. Tobias immediately and repeatedly denied that he was the person in the video; that he was with a friend miles away from the shooting location the detectives specified; and that his friend’s mother dropped him off at home before midnight. The detectives continued to accuse Tobias of the shooting, stating that “somebody gave you up.” Tobias subsequently asked, “Could I have an attorney. Because that’s not me.” Pere then stated, “But—okay. No, don’t worry. You’ll have the opportunity.” Detective Cortina quickly asked another question and the interrogation continued with no further acknowledgement of Tobias’s request for an attorney. Tobias continued to deny that he was the shooter.
About 35 minutes into the interview, Detective Pere told Tobias that he was “going to get booked today for murder.” Detectives Pere and Cortina then left the room, assuring Tobias that his mother would be in to talk to him shortly. Instead, Detective Michael Arteaga came in two minutes later and began a roughly 40-minute interrogation of Tobias, questioning him in an aggressive tone and cursing at him. Detective Arteaga told Tobias that he would look like a “cold-blooded killer” if he did not confess, told him that his mother had identified him from the video, and suggested that if he were to keep denying being the person in the video or continue to exercise his right to remain silent, he would receive harsher treatment by the court. After Arteaga repeated that Tobias’s lack of confession made him look like a “cold blooded killer” nine separate times, Tobias confessed.
The detectives then put Tobias in a room alone with his mother. Tobias immediately told her, “I wasn’t there. I was with Joshua . . . . They have a guy that looks like on the—on the camera. That’s not me.” When Tobias’s mother asked why he had confessed if it was not him, Tobias explained, “they forced me to. They said if I—if I keep lying to them in their face that they’re going to tell the judge that I’m a cold-blooded killer and that … they’re going to just throw the book at me and give me a lot of time. So I don’t know what to do. I’m like panicking.” Tobias’s mother went to Detective Arteaga and told him that Tobias only confessed because “you guys told him that if he didn’t confess . . . you guys were going to tell the judge who knows what the hell, okay, that he’s a cold-blooded murderer.” She insisted that Tobias was “crying” and “scared to shit.” Arteaga responded by telling her “[w]e’re done with you.”
Before his juvenile court murder trial, Tobias moved to suppress his confession, arguing that the detectives violated Miranda by ignoring his request for an attorney and that their conduct during the interrogation was unconstitutionally coercive. The juvenile court denied the motion. After the trial, a jury convicted Tobias of one count of first-degree murder and two counts of attempted murder. He was sentenced to 25 years in prison.
The California Court of Appeal reversed the trial court’s ruling on the motion to suppress Tobias’s statement to the police, concluding that the detectives failed to respect his unambiguous request for an attorney. On remand, the charges were dismissed, and all parties – including the arresting officers – eventually agreed that Tobias was not involved in the Castaneda murder.
Tobias filed suit under 42 U.S.C. section 1983 in federal District Court against officers involved in the investigation, including Detectives Arteaga, Cortina, and Pere (the “LAPD Detectives”). The operative second-amended complaint asserted claims based on several theories of constitutional violations, including violation of the Fifth Amendment right against self-incrimination based on a coerced confession and a violation of Fourteenth Amendment substantive due process based on the detectives’ conduct during the interrogation.
The LAPD Detectives filed a motion for summary judgment, arguing in part that they were entitled to qualified immunity. After the District Court denied the motion, the LAPD Detectives appealed.
Discussion
The Ninth Circuit Court of Appeals described the qualified immunity standard. “[O]fficers are entitled to qualified immunity under Section 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). “While there does not have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’” Id., at 590 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
The Ninth Circuit affirmed the District Court’s denial of qualified immunity on the Fifth Amendment claims that the detectives continued to question Tobias after he invoked his right to counsel and that they engaged in unconstitutional coercive questioning tactics. The Court explained that if a suspect requests an attorney during a custodial interrogation, “he is not subject to further questioning until a lawyer has been made available.” Davis v. United States, 512 U.S. 452, 458-59 (1994). The Court of Appeals held that it was clearly established at the time of Tobias’s interrogation that the statement, “Could I have an attorney? Because that’s not me,” was an unequivocal invocation of his right to counsel.
The Court also found that it was established at the time of Tobias’s interrogation 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, rendering his statements involuntary. 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” is unconstitutionally coercive. United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir. 1994). The Court concluded that under this clearly established law, Detective Arteaga violated Tobias’s Fifth Amendment rights with repeated assertions that the court would consider Tobias a “cold blooded killer” and “might throw the book at [him]” if he did not confess.
The Court explained that the Circuit Court had by 2013 clearly established that “police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” The Ninth Circuit held that although Detectives Cortina and Pere (unlike Detective Arteaga) did not make threats of harsher punishment based on lack of cooperation, to the extent they were aware of the violation as it happened, they may have had a duty to intercede and would not be entitled to qualified immunity. Because neither side presented evidence as to Cortina and Pere’s involvement in the interrogation, the Court remanded for the District Court to consider in the first instance whether there were material facts in dispute as to Cortina and Pere’s liability for Arteaga’s actions.
Turning to Tobias’s Fourteenth Amendment substantive due process claim, the Ninth Circuit observed that a person subjected to coercive interrogation techniques can bring a substantive due process claim under the Fourteenth Amendment. The substantive due process standard requires showing that an officer engaged in an “abuse of power [that] ‘shocks the conscience’ and ‘violates the decencies of civilized conduct.’” Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The Supreme Court has described “police torture or other abuse” as the type of claim cognizable under the Fourteenth Amendment. Chavez v. Martinez, 538 U.S. 760, 773-774 (2003). “[P]olice conduct need not include physical violence to violate substantive due process.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 431 (9th Cir. 2010). “[P]sychological coercion is sufficient.” Stoot, supra, 582 F.3d at 929. “It has also long been established that the constitutionality of interrogation techniques is judged by a higher standard when police interrogate a minor.” Crowe, supra, 608 F.3d at 431.
The Court noted that unlike in Crowe and Cooper v. Dupnik, cases involving officer interrogations in which the Circuit had found cognizable substantive due process violations, Tobias’s mistreatment here was much shorter, lasting under two hours. Because the prior cases in which the Circuit Court found “psychological torture” involved hours of questioning, and because the detectives’ behavior towards Tobias was otherwise similar to—but not obviously worse than—the behavior in those cases, the Court here held that it was not clearly established that the offending tactics “shocked the conscience” when used over a shorter period of time. Because controlling precedent had not established “beyond debate” that the LAPD Detectives conduct violated the Fourteenth Amendment, the Court concluded that the LAPD Detectives were entitled to qualified immunity on this claim. The Ninth Circuit Court of Appeals accordingly reversed the denial of qualified immunity on Tobias’s Fourteenth Amendment substantive due process claim.
Because in Judge Collins’s view, then-existing precedent did not clearly establish that the officers’ combination of tactics would be deemed coercive, he would have reversed the District Court’s denial of qualified immunity with respect to plaintiff’s coerced confession claim. He therefore dissented in part from the majority’s opinion in that respect.
HOW THIS AFFECTS YOUR AGENCY
Agencies will note the critical factor in this case concerning the substantive due process claim was the relatively short duration of the interrogation, in contrast to other cases in which the Ninth Circuit did find substantive due process violations, and on this basis had denied officers qualified immunity. In addition, the issues surrounding the interrogation and confession will still proceed to trial. All that the Ninth Circuit determined in this case is that the officers were not entitled to qualified immunity at this stage of the litigation as to the Fifth Amendment and failure to intercede claims. However, this case serves as a reminder to give due consideration to statements by a suspect who is in custody when the suspect invokes his or her right to counsel.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400, or via email, at jrt@jones-mayer.com
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