Hyung Koh v. Sung Kim

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18-1809 & 18-1821

HYUNG SEOK KOH, et al.,

Plaintiffs-Appellees,

v.

JOHN USTICH, et al.,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cv-02605 — Edmond E. Chang, Judge.

____________________

ARGUED FEBRUARY 22, 2019 — DECIDED AUGUST 13, 2019

____________________

Before RIPPLE, MANION, and BRENNAN, Circuit Judges.

MANION, Circuit Judge. Hyung Seok and Eunsook Koh,

husband and wife, brought a § 1983 suit arising out of the in-

vestigation of and the Kohs’ arrests in connection with their

son’s death. They sued the Northbrook Police Department,

various Northbrook officers, the Wheeling Police Depart-

ment, and a Wheeling officer asserting state and federal

claims. The district court granted in part and denied in part

the defendants’ motions for summary judgment. Northbrook

2 Nos. 18-1809 & 18-1821

Detectives John Ustich and Mark Graf and Wheeling Officer

Sung Phil Kim have filed interlocutory appeals on the issue of

qualified immunity concerning Mr. Koh’s Fifth Amendment

coerced confession claim. Because appellants’ arguments are

inseparable from the questions of fact identified by the district

court, we dismiss these appeals for lack of jurisdiction.

I.

Around 3:45 a.m., on April 16, 2009, Mr. Koh was awak-

ened by his wife’s screams. Mrs. Koh had just found their 22-

year-old son, Paul, lying down in a pool of blood next to a

knife in the entryway of their home. 1 After calling 911, the

couple got dressed, anticipating going to the hospital after

help came because they thought Paul was still alive. Paramed-

ics and officers from the Northbrook Police Department (De-

fendants Roger Eisen, Matt Johnson, Brian Meents, and Keith

Celia, none of whom are appellants) arrived at the Koh home

soon after. There, they found Mr. Koh with a phone near the

front door of the house and Mrs. Koh crouched over Paul’s

body. Paul had been stabbed in the throat and chest and was

declared dead at the scene. Officers initially stated there was

a possibility Paul committed suicide.

Mr. Koh wanted to drive to the hospital. Instead, both Mr.

and Mrs. Koh were confined in their front yard and pushed to

the ground, where they sat while officers watched over them.

The Kohs asked to see Paul, get Mr. Koh’s medicine 2 and cell

1 Because this appeal reviews a denial of motions for summary judg-

ment, we take the facts in the light most favorable to the Kohs, the non-

moving parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

2 Mr. Koh took medication for diabetes, high blood pressure, and hy-

perammonemia.

Nos. 18-1809 & 18-1821 3

phone, and go to the hospital. The officers denied those re-

quests.

At some point, the officers forced the Kohs into a squad car

and drove them to the Northbrook Police Department. (The

Kohs were not asked if they wanted to go there.) Mrs. Koh

was allowed to wash the blood from her hands in a restroom

at the station while officers kept an eye on her. The Kohs were

then given blankets and beverages. They were kept in a con-

ference room, first together and then later separated. Mr. Koh

asked to make a phone call, but was not allowed to do so. The

police contacted the Kohs’ pastor who arrived at the station

around 6 a.m. Other family and friends came to the station as

well, but their requests to see the Kohs were denied.

While still at the Koh home, a Northbrook police officer

spoke with dispatch about contacting local law enforcement

agencies to request a Korean translator who could assist with

speaking with the Kohs because of the apparent language bar-

rier. 3 Responding to the request at the direction of one of his

superiors, Officer Sung Phil Kim of the nearby Wheeling Po-

lice Department went directly to the Northbrook Police De-

partment. Kim spoke Korean in social settings, having learned

Korean from his parents and at Sunday school as a child, but

otherwise having no formal training in the Korean language.

Kim also had no training as a translator.

Mr. Koh was questioned at the Northbrook police station

in a two-part interview that lasted a total of two and a half

3 The officer declined using Language Line, a telephonic interpreta-

tion service used by police, and instead requested someone who could be

physically present for the Kohs’ interviews.

4 Nos. 18-1809 & 18-1821

hours. Detectives John Ustich and Mark Graf, 4 and Kim were

present for both sessions, and they all questioned Mr. Koh

during his interviews. Graf primarily conducted the inter-

view, and Ustich and Kim each posed questions at different

points. Kim also provided some Korean translations during

the interview, but not to each question. Each interview was

video recorded, though there was discussion between Graf

and Mr. Koh before the recording began and at the end of the

first interview when the tape ran out.

The first interview began around 7:30 a.m. Before the

video recording began, Mr. Koh asked Graf for his medica-

tion. Graf responded that someone would bring him his med-

icine. Also before the recording commenced, Graf asked

Mr. Koh if he had a lawyer. Mr. Koh told Graf that he had an

attorney, but he could not remember the attorney’s phone

number. Mr. Koh also asked to see his pastor, his daughter,

and his friend from church. According to Mr. Koh, Graf “told

me that the only person I could see was a lawyer. And since I

didn’t have any phone numbers, so that was the end.” 5

Graf administered Miranda warnings in English. While

Graf was reading Mr. Koh the Miranda warnings, Kim pro-

vided some translation assistance. Kim, however, did not

translate after Graf stated, “Anything you say can and [sic] be

used against you in a court of law, okay?” 6 Mr. Koh gently

4 While not one of the responding officers, Ustich came to the Koh

home shortly before 6 a.m. and relayed to Graf the information that he

learned while there prior to the interview.

5 District Ct. Docket Entry 289-1, Pretrial Hr’g Tr. at 15:23–16:1.

6 District Ct. Docket Entry 285-3, Interview Tr. at 2. (In addition to the

three video recordings of Mr. Koh’s interviews (District Ct. Docket Entry

285-1 (Interview Video)), the parties and, in turn, the district court relied

Nos. 18-1809 & 18-1821 5

nodded his head while Graf was reading the warnings. Once

finished reading the warnings, Graf passed Mr. Koh a printed

waiver form listing the Miranda rights in English asking him

to sign and date the form. It was then that Mr. Koh asked,

“Can you ask (inaudible) this one transfer this one?” 7 The of-

ficers understood this as a request for Kim to translate, and

Kim proceeded to speak to Mr. Koh in Korean. The parties

dispute, though, the accuracy of Kim’s translation and

whether Mr. Koh understood it. According to Mr. Koh, Kim

did not tell him that his statements could be used against him

or that he had a right to an attorney if he could not afford one.

Mr. Koh also asserts that Kim advised that he did not need an

attorney. After Kim completed his translation, Mr. Koh began

to date and time the form stating, “This one happens [early

morning].” 8 It was then that Graf instructed Mr. Koh to write

“[t]he date and time right now.” 9 As the district court de-

scribed it in its summary judgment opinion, “Mr. Koh ulti-

mately executed an English-language Miranda waiver form at

Graf’s and Kim’s directions.” Koh v. Graf, 307 F. Supp. 3d 827,

837 (N.D. Ill. 2018) (emphasis added).

After Mr. Koh signed the waiver form, Graf offered

Mr. Koh beverages and food, but Mr. Koh only requested wa-

on a transcript of Mr. Koh’s videotaped interviews in support of their

summary judgment motions (District Ct. Docket Entry 285-3 (Interview

Tr.)). The Kohs did not stipulate to the accuracy of the transcript, but

agreed to its use at summary judgment. We rely on the recordings and

transcript as well.)

7 District Ct. Docket Entry 285-1, Interview Video 1 at 1:35, Interview

Tr. at 2.

8 Interview Tr. at 2; Interview Video 1 at 2:21.

9 Interview Tr. at 2; Interview Video 1 at 2:24.

6 Nos. 18-1809 & 18-1821

ter. Graf began asking questions in English with little inter-

vention by or assistance from Kim. Mr. Koh answered some

questions and communicated in basic English, though some

of his responses to Graf’s questions were confusing or non-

responsive. For instance, at the beginning of the interview

when Graf asked Mr. Koh, “Why don’t you tell us briefly

about your son and what he does, his friends, what type of

person he was,” Mr. Koh responded by explaining what he

did the day before. 10 Throughout the first interview, Mr. Koh

repeatedly denied any involvement in Paul’s death, including

when Graf asked him if he had an argument with Paul. Dur-

ing that first session, Graf asked Mr. Koh about Paul’s depres-

sion and marijuana use. This first interview lasted about 55

minutes.

After the first interview, Ustich and Graf thought Mr. Koh

was being evasive, and they found his denials of any involve-

ment in Paul’s death unbelievable. Ustich and Graf then met

with their superiors and members of the team investigating

Paul’s death. Kim did not participate in that meeting. At the

meeting, Ustich and Graf learned about evidence obtained up

to that point in the investigation. There was evidence suggest-

ing there was a struggle (e.g., there was a small metal cross

and broken chain discovered in blood on the floor). There was

also evidence of a cleanup in the master bedroom, which con-

tradicted Mrs. Koh’s statement to police that neither she nor

her husband cleaned up in the bathroom after finding Paul’s

body. Ustich and Graf also learned that while Mr. Koh had

told them that he and his wife had turned Paul’s body over,

Mrs. Koh told police that she had not moved Paul’s body.

10 Interview Tr. at 3–4.

Nos. 18-1809 & 18-1821 7

Also, a neighbor had heard a scream, which prompted skep-

ticism by Graf that Mr. Koh, who had told Graf that he was a

light sleeper, could have slept through Paul’s death.

Ustich and Graf also learned that Mr. Koh and Paul’s rela-

tionship was marked by tension. Northbrook police officers

had previously seen Paul walking in the Kohs’ neighborhood

late at night because he had gotten into a fight with Mr. Koh.

Additionally, Paul’s youth pastor told officers that the Kohs

had a family agreement with Paul, which included no toler-

ance for drugs and allowed the Kohs to randomly test Paul

for drugs. And there was also evidence that Paul had been

smoking marijuana the night before he died. The forensic

team told Ustich and Graf that it believed Paul’s death was a

homicide because, in its estimation, his injuries could not

have been self-inflicted. Graf’s and Ustich’s superior in-

structed them to press Mr. Koh harder.

Ustich and Graf returned to the conference room along

with Kim to continue interviewing Mr. Koh around 11:30 a.m.

Graf once again offered Mr. Koh food, coffee, juice, and water.

Mr. Koh responded, “Yeah, what I need is I’ll let you know.”11

Graf also reminded Mr. Koh “of the rights that we read you

before” and asked if he “still understood these rights and

[was] willing to talk with us?” Mr. Koh responded, “Yes.” 12

As he had done throughout the entire first interview, Graf

sat across the conference room table from Mr. Koh. Ustich sat

on the same side as Graf and interjected with questions occa-

sionally. Kim sat on the same side of the table as Mr. Koh to

his left. Graf’s questioning in this second interview was more

11 Interview Tr. at 58.

12 Id. at 59.

8 Nos. 18-1809 & 18-1821

aggressive in both tone, volume, and tempo. He focused on

inconsistencies between Mr. Koh’s first interview and what

Graf claimed had been learned through the investigation

(some of the inconsistencies were real and some were created

by Graf). At one point, Graf walked around the conference

room table and sat next to Mr. Koh, stating, “I’m gonna move

over here because I don’t know if you can understand me,

okay. Okay.”13 Mr. Koh turned and looked toward Kim, and

Graf responded, “I just want to talk to you.” 14 At that point,

Mr. Koh was on the same side of the conference room table

between Graf and Kim, facing toward Graf.

While Graf continued questioning Mr. Koh, he repeatedly

touched Mr. Koh’s arms and legs. Graf presented the theory

that Mr. Koh was mad that Paul had been out doing drugs

and waited for him to return home. Despite Mr. Koh’s re-

peated denials, Graf continued to push, telling him, “We can

be here for days and days and days, okay, but we don’t want

that.” 15 During this second interview, Graf asked successive

questions at a rate that precluded translation by Kim. Graf re-

peatedly accused Mr. Koh of lying and presented storylines

about what happened, suggesting that other information that

the police had gathered or would gather supported those the-

ories. At various points, Mr. Koh was hunched over and beat

his chest and head with his hands.

During both interviews, Kim either did partial or mis-

translations of Mr. Koh’s statements and Graf’s questions, in-

cluding providing a partial, but inexact, translation of Graf’s

13 Id. at 103.

14 Id., Interview Video 2 at 45:20–32.

15 Interview Tr. at 117–18.

Nos. 18-1809 & 18-1821 9

question about whether Mr. Koh had stabbed Paul in self-de-

fense. 16 Also, at another point during the second interview,

Kim translated literally a Korean idiom, gachi jooka (“let’s die

together”), without explaining that it was an idiom and not to

be taken literally. According to the Kohs, the expression is like

the English phrase, “you’re killing me.” Also, Kim sometimes

interjected in the interview with questions in both English

and Korean. Kim and Graf asked overlapping questions at

times making it unclear to which question Mr. Koh was re-

sponding. For instance, at a critical point in the second inter-

view, Graf asked Mr. Koh if he was angry. Before Mr. Koh

responded to Graf’s question, Kim asked Mr. Koh in Korean

whether Mr. Koh acted in self-defense. Kim did not translate

Graf’s question. Mr. Koh responded, “I think so,” prompting

Kim to state, “He said it was in self-defense.” As the district

court correctly noted, though, it was unclear which question

Mr. Koh was answering because the officers posed two, sepa-

rate questions and Mr. Koh responded in a way that did not

16 According to the Kohs’ language expert’s report, this particular ex-

change was as follows:

Graf: . . . was it in defense? Or was it in . .

Kim: [Korean characters] Was it self-defense?

Graf: that you were anger/angry?

Kim: [Korean characters] Did you do/engage in self-defense?

Koh: I think so yeah maybe it’s a

Graf: Tell me how it happened

Kim: He said it was in defense. He said it was in defense.

Graf: I know you did it.

Koh: I did it?

Graf: You did it. Yes, didn’t you?

Kim: [Korean characters] (I know you) were engaged in self-defense.

District Ct. Docket Entry 308-73 at 5.

10 Nos. 18-1809 & 18-1821

indicate to which question he was responding. See Koh, 307 F.

Supp. 3d at 852.

About three minutes before the second interview ended,

Graf stepped out of the room to talk with another officer who

had come to tell him Mr. Koh’s attorney had arrived at the

station. While Mr. Koh’s attorney was being escorted back to

the conference room, Graf increased the intensity of the inter-

view by asking quick, successive, leading questions and leav-

ing no time for translation. Mr. Koh responded to Graf’s ques-

tioning with one or two-word responses that could be inter-

preted as agreeing with Graf’s self-defense theory: Mr. Koh

had waited up until 1 a.m. for Paul to return home, was mad

that Paul was out smoking marijuana, argued with Paul upon

his return, and stabbed Paul in self-defense. The interview

ended when Mr. Koh’s attorney came into the room a couple

minutes before 1 p.m. Sometime after the interview ended,

Mr. Koh was finally given his medication.

Mr. Koh was charged with murder in state court. After the

trial court denied his motion to suppress his confession, the

case went to trial where Mr. Koh was acquitted by a jury.17

Prior to his acquittal, Mr. Koh spent nearly four years in the

Cook County Jail. 18

The Kohs then sued several Northbrook police officers, in-

cluding Ustich and Graf, Kim, and the Villages of Northbrook

and Wheeling under 42 U.S.C. § 1983. They asserted federal

17 Among other evidence, Mr. Koh presented evidence at the criminal

trial that Paul had committed suicide.

18 In response to a question from the Court at oral argument, the Kohs’

counsel stated that Mr. Koh was held on a $5 million bond.

Nos. 18-1809 & 18-1821 11

constitutional claims. The Kohs set forth a Fourth Amend-

ment claim for their arrests and a Fifth and Fourteenth

Amendment claims for Mr. Koh’s confession. They also

brought a failure to intervene claim, a Monell claim against the

Village of Northbrook for their unlawful detention and coer-

cive interrogation, and a conspiracy claim. Finally, the Kohs

asserted some state law claims, specifically malicious prose-

cution, intentional infliction of emotional distress, loss of con-

sortium, and respondeat superior. The defendants moved for

summary judgment, claiming qualified immunity. Taking the

evidence and reasonable inferences in the light most favora-

ble to the Kohs, the district court denied the motion in part

and granted the motion in part. Specifically, the district court

denied summary judgment on the Kohs’ Fourth Amendment

false arrest claims, but it held that Mr. Koh’s false arrest ended

when the officers had probable cause to arrest him before his

second interview based on the information conveyed during

the debriefing. The court also denied summary judgment on

Mr. Koh’s Fifth Amendment coerced confession claim, his

conspiracy and failure to intervene claims (with some limita-

tions), his municipal liability claim against the Northbrook

Police Department for false arrest, and Mrs. Koh’s loss of con-

sortium claim. The court also allowed the Kohs to proceed on

their respondeat superior and indemnification claims against

the Northbrook and Wheeling Police departments for the sur-

viving claims. Summary judgment was granted on Mr. Koh’s

state law malicious prosecution, Fourteenth Amendment sub-

stantive due process claim, due process evidence-fabrication

claim, and Fourth Amendment claim based on Mr. Koh’s pre-

trial detention.

Ustich, Graf, and Kim filed separate appeals challenging

the district court’s denial of summary judgment on the Kohs’

12 Nos. 18-1809 & 18-1821

Fifth Amendment coercion claim on qualified immunity

grounds.

II.

We review a denial of qualified immunity on summary

judgment de novo. Lovett v. Herbert, 907 F.3d 986, 990 (7th Cir.

2018). We are unable to review an appeal from an interlocu-

tory order such as a denial of a motion for summary judg-

ment, but there is an exception—the collateral order doc-

trine—for us to review an order denying a claim of qualified

immunity. Dockery v. Blackburn, 911 F.3d 458, 464 (7th Cir.

2018). Our review, though, is limited to pure legal issues. Id.

at 464–65. Consideration of any factual questions is outside

our jurisdiction. Hurt v. Wise, 880 F.3d 831, 839 (7th Cir. 2018)

overruled on other grounds by Lewis v. City of Chicago, 914 F.3d

472 (7th Cir. 2019). For purposes of appeal, an appellant may

take all facts and inferences in plaintiff’s favor and argue

“those facts fail to show a violation of clearly established law.”

Id. (emphasis in original). “When the district court concludes

that factual disputes prevent the resolution of a qualified im-

munity defense, these conclusions represent factual determi-

nations that cannot be disturbed in a collateral order appeal,”

such as this one. Gant v. Hartman, 924 F.3d 445, 448 (7th Cir.

2019) (internal quotation marks and citation omitted). Our re-

view is further limited in that we may not “make conclusions

about which facts the parties ultimately might be able to es-

tablish at trial, nor may [we] reconsider the district court’s de-

termination that certain genuine issues of fact exist.” Id. (in-

ternal quotation marks and citation omitted). To establish ju-

risdiction, appellants must present purely legal arguments,

but if those arguments “are dependent upon, and inseparable

from, disputed facts,” we do not have jurisdiction to consider

Nos. 18-1809 & 18-1821 13

the appeal. Id. at 448–49 (quoting White v. Gerardot, 509 F.3d

829, 835 (7th Cir. 2007)). Finally, we will “consider[] only the

facts that were knowable to the defendant officers.” White v.

Pauly, 137 S. Ct. 548, 550 (2017).

If we determine we have jurisdiction, we then turn to the

qualified immunity analysis. Once an officer asserts qualified

immunity, a plaintiff can proceed with his case only if he can

show (1) that the “facts, taken in the light most favorable to

[him], make out a violation of a constitutional right,” and (2)

that right was “clearly established at the time of the alleged

violation.” Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir.

2017) (quoting Allin v. City of Springfield, 845 F.3d 858, 862 (7th

Cir. 2017)). We may consider these prongs in any order we

choose. Id. “‘If either inquiry is answered in the negative, the

defendant official’ is protected by qualified immunity.” Reed

v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018) (citations omitted)

(emphasis in original).

The parties assert various arguments. Ustich and Graf ar-

gue that the district court erred in denying their claims for

qualified immunity because there was no clearly established

law to alert them that their conduct at the time of Mr. Koh’s

interrogation was unconstitutional. Alternatively, they argue

that the state trial court’s denial of Mr. Koh’s motion to sup-

press his confession was a superseding, intervening cause that

entitled them to qualified immunity.

Kim also makes the “intervening cause” argument and as-

serts several of his own. First, he argues the facts fail to show

he intended to violate Mr. Koh’s right against self-incrimina-

tion and that Kim’s conduct was the proximate cause of the

violation of Mr. Koh’s Fifth Amendment rights. Second, Kim

claims that there was no clearly established law at the time of

14 Nos. 18-1809 & 18-1821

Mr. Koh’s interview that would have given Kim notice that

his conduct as a language interpreter violated Mr. Koh’s Fifth

Amendment rights. And third, Kim argues that the district

court erred by not considering his claim for qualified immun-

ity separately from Graf’s claim.

A. Ustich and Graf

Turning now to Ustich and Graf’s appeal, they argue they

are entitled to qualified immunity because it was not clearly

established in June 2009 that their conduct during Mr. Koh’s

interrogation was unconstitutional. While on its face this is a

legal argument, we do not have jurisdiction to address it be-

cause the appellants’ legal arguments “depend[] upon and

[are] inseparable from disputed facts.” Gutierrez v. Kermon,

722 F.3d 1003, 1010–11 (7th Cir. 2013). While Ustich and Graf

assert in their reply brief that they have taken all of the district

court’s factual determinations and reasonable inferences in

the light most favorable to Mr. Koh, “we detect a back-door

effort to contest the facts,” namely the nature of Mr. Koh’s

confusion and lack of understanding due to the language bar-

rier, the impact of the lack of medication and sleep, and the

threat Graf leveled against Mr. Koh. Jones v. Clark, 630 F.3d

677, 680 (7th Cir. 2011). “The voluntariness of a confession de-

pends on the totality of the circumstances, including both the

characteristics of the accused and the nature of the interroga-

tion. If those circumstances reveal that the interrogated per-

son’s will was overborne, admitting the resulting confession

violates the Fifth Amendment.” Jackson v. Curry, 888 F.3d 259,

265 (7th Cir. 2018) (quoting Hurt, 880 F.3d at 845). Had Ustich

and Graf “accepted all historical facts favorably to the [Kohs]

and argued that those facts did not show that [Mr. Koh’s] con-

fession was involuntary, we would be in a position to answer

Nos. 18-1809 & 18-1821 15

the ultimate legal question.” Hurt, 880 F.3d at 846. But since

these challenged facts are an integral part of the totality of the

circumstances considered by the district court, we lack juris-

diction over Ustich and Graf’s appeal.

1. The Language Barrier

It was clear that Mr. Koh did not speak fluent English.

While all the parties admit that, Ustich and Graf’s characteri-

zation of the extent and effect of Mr. Koh’s language barrier

challenges the district court’s factual determinations at sum-

mary judgment. Ustich and Graf describe Mr. Koh as having

“limited English language proficiencies,” but they contend

that they “recruited an interpreter to eliminate or lessen the

language barrier.” 19 In so doing, they challenge the district

court’s factual determination that Mr. Koh did not just suffer

from a language barrier, but rather that Mr. Koh suffered a

lack of understanding and confusion and that the officers

were aware of this. Koh, 307 F. Supp. 3d 856. Taking the facts

in the light most favorable to Mr. Koh, this lack of under-

standing was obvious. As the district court aptly pointed out,

Many of Mr. Koh’s answers were altogether

nonsensical, showing (or so a reasonable jury

could find) that he did not understand what was

going on. For example, Mr. Koh responded to

Graf’s question about what kind of person Paul

was by narrating what happened yesterday

morning. At another point in the interview, Koh

answered a question about whether he saw a

weapon by telling Graf about the tools he kept

for his vending machine business. During one

19 Ustich and Graf Appellate Br. at 24, 33.

16 Nos. 18-1809 & 18-1821

tense moment, Graf asked Mr. Koh[,] “Would

God want Paul to [ ] have his father sitting here

and telling us a story that’s not true?”—a ques-

tion that should obviously have been answered

“no”—but Mr. Koh said “yeah.” As the inter-

view went on, Mr. Koh largely defaulted to giv-

ing one word or unintelligible answers, or re-

sponding that he did not know or could not re-

member.

Id. at 851. (citations omitted and second alteration in original).

Moreover, the district court again noted that Mr. Koh’s con-

fusion was evident when Graf had more or less gotten Mr.

Koh to admit that he stabbed Paul in self-defense: Mr. Koh’s

responses to follow-up questions made it clear that he may

have been speaking about an earlier incident when Paul

swung a golf club at Mr. Koh. Id. at 856 n.37 (quoting Inter-

view Tr. at 136–37). The extent of Mr. Koh’s understanding

and the degree of his confusion are key to determining

whether his confession was involuntary and coerced. There-

fore, Ustich and Graf’s characterization of Mr. Koh’s language

problem as a “limited English language proficiency” over-

come by the presence of an interpreter, rather than accepting

the district court’s conclusions concerning Koh’s lack of un-

derstanding, precludes our jurisdiction. See Jackson, 888 F.3d

at 264 (“[D]ifferences in the parties’ charaterizations of the

same evidence are the essence of fact disputes, over which we

presently lack jurisdiction.”) (internal quotation marks omit-

ted); Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) (internal

quotations and citations omitted) (“In reviewing a district

court’s denial of qualified immunity, we cannot make conclu-

sions about which facts the parties ultimately might be able to

Nos. 18-1809 & 18-1821 17

establish at trial. Nor may we reconsider the district court’s

determination that certain genuine issues of fact exist.”).

Ustich and Graf’s challenge regarding the impact and ex-

tent of Mr. Koh’s language barrier also extends to their de-

scription of the administration of Miranda warnings to

Mr. Koh. While they concede that Mr. Koh did not subjec-

tively understand the warnings, their characterization of the

facts surrounding the administration of the Miranda warnings

is limited and selective. Any reasonable officer would have

known at the time of Mr. Koh’s interview that Miranda warn-

ings are critical to protect a suspect against coercion. United

States v. Gupta, 183 F.3d 615, 617 (7th Cir. 1999) (“Potential co-

ercion or compulsion is vital to Miranda’s application, because

the clause underlying its framework is the privilege against

compulsory self-incrimination.”). They note that Graf read

Mr. Koh his rights, Mr. Koh nodded that he understood, and

when Mr. Koh requested that Kim translate, Graf agreed to

allow that. According to Ustich and Graf, Kim then spoke to

Mr. Koh in Korean and then Mr. Koh signed the Miranda

waiver form. A reasonable officer would have known that he

could not rely upon Mr. Koh’s nodding without speaking

when he was first read the Miranda warnings after Mr. Koh

asked Kim to translate. A person typically asks for something

to be translated when he does not understand what was said

to him in another language. When such a request is made, any

prior nodding is more likely a polite acknowledgment that he

was listening to what the speaker was saying rather than af-

firming. Ustich and Graf also leave out the important fact that

Mr. Koh was going to date the written waiver form with

“early in the morning,” presumably that being the time Paul

was found at his home. Taking this fact in the light most fa-

vorable to Mr. Koh, a reasonable officer would conclude that

18 Nos. 18-1809 & 18-1821

Mr. Koh did not understand what he was executing when he

signed the English Miranda waiver form. As the district court

stated, Mr. Koh executed the written “Miranda waiver form at

Graf’s and Kim’s directions.” Koh, 307 F. Supp. 3d at 851 (em-

phasis added). So even if Ustich and Graf did not understand

what Kim said to Mr. Koh in Korean, Mr. Koh’s conduct when

executing the English Miranda waiver form would prompt a

reasonable officer to conclude that Mr. Koh did not under-

stand what he was signing. Finally, Ustich and Graf’s conten-

tion that Mr. Koh agreed at the beginning of the second inter-

view that he was advised of his rights and understood is un-

availing because it further disregards the district court’s con-

clusions regarding Mr. Koh’s lack of understanding due to the

language barrier. More importantly, it presupposes that Mr.

Koh understood his rights in the first instance.

2. Lack of Sleep and Medication

Similarly, Ustich and Graf challenge the district court’s

factual determinations regarding Mr. Koh’s lack of sleep and

medication. Both sleep and medication are relevant to the in-

quiry of whether an individual is susceptible to coercion. See

Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968); United States

v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). Regarding Mr.

Koh’s lack of sleep, Ustich and Graf argue Mr. Koh had slept

for five hours the night prior and he did not assert he was pro-

hibited from resting between interviews. They go on stating,

“[N]o reasonable police officer would think that a person who

had just lost his son in such a violent manner would want

more rest, under such circumstances, before trying to help po-

lice solve the crime.” 20 With such characterizations, though,

20 Ustich and Graf Appellate Br. at 36.

Nos. 18-1809 & 18-1821 19

Ustich and Graf are not taking the facts in the light most fa-

vorable to Mr. Koh and are ignoring the district court’s con-

clusion that throughout the interviews Mr. Koh displayed

signs of physical exhaustion when “he sat hunched over in his

chair” and hit himself in the head and chest. Koh, 307 F. Supp.

3d at 837. This is a factual challenge that precludes our juris-

diction. Similarly, Ustich and Graf acknowledge that Mr. Koh

did not receive his requested medication until after his second

interview, but they argue that they did not intentionally delay

providing the medicine. 21 They do not state how their intent

is relevant to Mr. Koh’s Fifth Amendment claim, and to the

extent that it may be relevant, it is outside the scope of our

jurisdiction over this interlocutory appeal. Stinson v. Gauger,

868 F.3d 516, 526–27 (7th Cir. 2015) (holding that the existence

of intent is an issue of fact that cannot be decided on an inter-

locutory appeal of a denial of qualified immunity).

3. Threatening Language

Ustich and Graf also assert that Mr. Koh’s interrogation

contained no “threats of consequences.” 22 This, though, is in

direct contravention of the district court’s factual determina-

tion that a reasonable jury could find it was a threat when Graf

told Mr. Koh that they could be there for “days and days and

days.” Koh, 307 F. Supp. 3d at 853 (quoting Interview Tr. at

117). Accordingly, we do not have jurisdiction to consider Us-

tich and Graf’s legal argument that law was not clearly estab-

lished at the time of Mr. Koh’s interview because this argu-

ment is “dependent upon, and inseparable from, disputed

facts.” Gant, 924 F.3d at 448.

21 Id. at 37.

22 Id. at 30

20 Nos. 18-1809 & 18-1821

B. Kim

Turning now to Kim’s arguments, we first address his ar-

gument that there was no clearly established law in June 2009

that would have put him, a language interpreter, on notice

that this conduct was unconstitutional. This argument,

though, contests the district court’s factual determinations

about Kim’s role during the interrogation and, thus, is outside

of the scope of our limited jurisdiction. See Levan v. George, 604

F.3d 366, 370 (7th Cir. 2010) (“If the legal issue being appealed

is not significantly different than the factual issues underlying

the claim, this separability requirement will be nearly impos-

sible to satisfy.”) It is true that the district court addressed

Kim’s role as an interpreter, but Kim’s argument ignores the

district court’s factual determination that Kim participated in

the interrogation itself and did not act as a mere interpreter.

Koh, 307 F. Supp. 3d at 852 (“Officer Kim even joined in the

interrogation by asking his own questions in English. . . . Of-

ficer Kim would . . . interject in Korean with questions of his

own.”). At this juncture, we must take the fact that Kim par-

ticipated as an interrogator during the interview as true, and

Kim’s characterization of his role in the interrogation as a

mere interpreter challenges that fact in such a way that pre-

cludes our jurisdiction. We are unable to address his pur-

ported legal claim because it is entangled with the factual

question of his role during Mr. Koh’s interview. See Hill v.

Coppleson, 627 F.3d 601, 605–06 (7th Cir. 2010) (holding that a

prosecutor was not entitled to absolute or qualified immunity

because the “resolution depends on facts that the district

court has properly determined to be in dispute”).

Nos. 18-1809 & 18-1821 21

Further, in light of the district court’s factual determina-

tion about Kim’s participation in the interview, the district

court did not err in attributing to Kim a shared knowledge

with Graf of the facts and circumstances of the interrogation.

Kim argues that the attribution demonstrates that the district

court failed to assess his entitlement to qualified immunity in-

dependently of its assessment of Graf’s qualified immunity

claim. While the district court’s individual assessment of

Kim’s entitlement to qualified immunity was brief, given that

Kim participated in the same, singular factual scenario as

Graf, i.e., Mr. Koh’s interrogation, the district court satisfied

the individualized determination required when it concluded

that Kim was not entitled to qualified immunity. This is par-

ticularly true given the district court’s determination that Kim

participated in the interrogation by posing questions of his

own and not merely as a language interpreter. Cf. Estate of Wil-

liams v. Cline, 902 F.3d 643, 651–52 (7th Cir. 2018) (holding that

the district court did not conduct the requisite individualized

determination of officers’ entitlement to qualified immunity

on plaintiff’s Fourth Amendment claim where officers had

varying encounters with plaintiff at different times).

Kim further argues that had the district court made the ap-

propriate individualized determination “it would have found

[he] lacked requisite intent to coerce a confession from Koh in

violation of the Fifth Amendment’s self-incrimination

clause.” 23 Like Ustich and Graf, Kim has failed to assert how

his intent is relevant to Mr. Koh’s legal claim and to the extent

that it may be relevant, such a contention is a factual question

over which we do not have jurisdiction. Stinson, 868 F.3d at

526–27. Kim’s argument regarding intent also permeates his

23 Kim Reply Br. at 17–18.

22 Nos. 18-1809 & 18-1821

challenge of the district court’s factual determination regard-

ing the translations that he provided, namely the summary of

the Miranda warnings, the Korean idiom gachi jookja, and other

translational errors. He contends he “acted to the best of his

ability” and had no intention to deceive or coerce Koh’s con-

fession. 24 Again, such an argument is outside the scope of our

limited jurisdiction at this juncture.

C. Superseding, Intervening Cause

All three appellants contend that the state trial court’s de-

nial of Mr. Koh’s motion to suppress is a superseding, inter-

vening cause entitling them to qualified immunity. We do not

have jurisdiction over the argument asserted by all appellants

that the state court’s denial of Mr. Koh’s motion to suppress

is a superseding, intervening cause of his Fifth Amendment

claim. As we held in Jackson, 888 F.3d at 266, this court has not

“accepted this argument in the context of a Fifth Amendment

coerced-confession claim,” and since the “superseding-cause

issue . . . is not a pure legal question related to qualified im-

munity,” the court lacks jurisdiction under the collateral order

doctrine.

III.

Because these appeals present factual challenges that are

outside of our jurisdiction over an appeal of an order denying

qualified immunity on summary judgment, we dismiss these

appeals for lack of jurisdiction.

24 Kim Appellant Br. at 20.