Art Tobias v. Michael Arteaga

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ART TOBIAS, No. 18-56360

Plaintiff-Appellee,

D.C. No.

v. 2:17-cv-01076-

DSF-AS

MICHAEL ARTEAGA; JEFF CORTINA;

J. MOTTO; JULIAN PERE,

Defendants-Appellants. OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted October 15, 2019

Memorandum Disposition Filed February 25, 2020

Petition for Rehearing Granted and Submission Vacated

August 17, 2020

Resubmitted April 20, 2021

Pasadena, California

Filed April 27, 2021

Before: Kim McLane Wardlaw and Daniel P. Collins,

Circuit Judges, and Benjamin H. Settle, * District Judge.

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Collins

*

The Honorable Benjamin H. Settle, United States District Judge

for the Western District of Washington, sitting by designation.

2 TOBIAS V. ARTEAGA

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the

district court’s order denying, on summary judgment,

qualified immunity to Los Angeles Police Department

detectives in an action brought pursuant to 42 U.S.C. § 1983

alleging that defendants coerced plaintiff’s confession, when

he was thirteen years old, for a murder he did not commit.

The panel affirmed the district court’s denial of qualified

immunity on the Fifth Amendment claims that the officers

continued to question plaintiff after he invoked his Miranda

right to silence and that they engaged in unconstitutional

coercive questioning tactics. The panel held that it was

clearly established at the time of plaintiff’s interrogation that

the statement “Could I have an attorney? Because that’s not

me,” was an unambiguous request for an attorney. It was

also established at the time of plaintiff’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. The panel concluded that under this

clearly established law, Detective Arteaga violated

plaintiff’s Fifth Amendment rights with his repeated

assertions that the court would consider plaintiff a “cold

blooded killer” and “might throw the book at [him]” if he did

not confess.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

TOBIAS V. ARTEAGA 3

The panel held that although Detectives Cortina and Pere

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 panel 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.

The panel held that the officers were entitled to qualified

immunity as to plaintiff’s Fifth and Fourteenth Amendment

fabrication-of-evidence claim, asserted under Devereaux v.

Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), to the extent

that the claim was based on the contention that plaintiff’s

confession was the asserted fabricated evidence.

The panel reversed the denial of qualified immunity on

plaintiff’s Fourteenth Amendment substantive due process

claim because it was not clearly established that the abusive

interrogation techniques used by the officers rose to the level

of abuse of power that shocked the conscience.

Concurring in part, concurring in the judgment in part

and dissenting in part, Judge Collins agreed with the

majority that the relevant officers involved in the

interrogation were not entitled to qualified immunity with

respect to plaintiff’s Fifth Amendment right to counsel

claim, and he therefore concurred to that extent in Part III(A)

of the opinion. He also agreed with the majority’s ultimate

conclusion to reverse the district court’s denial of qualified

immunity with respect to plaintiff’s Fourteenth Amendment

due process claim, but his reasoning differed somewhat from

the majority’s and so he concurred only in the judgment as

to Part III(C). Judge Collins agreed with the majority that

4 TOBIAS V. ARTEAGA

the officers were entitled to summary judgment on plaintiff’s

fabrication-of-evidence claim under Devereaux v. Abbey,

263 F.3d 1070 (9th Cir. 2001) (en banc), to the extent that

that claim was based on the allegedly coerced confession.

Lastly, 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

reverse the district court’s denial of qualified immunity with

respect to plaintiff’s coerced confession claim. He therefore

dissented from the majority’s opinion as to Part III(B).

TOBIAS V. ARTEAGA 5

COUNSEL

Kevin E. Gilbert (argued), Orbach Huff Suarez &

Henderson, Pleasanton, California; Timothy T. Coates,

Greines Martin Stein & Richland LLP, Los Angeles,

California; for Defendants-Appellants.

Calvin House (argued), Gutierrez Preciado & House LLP,

Pasadena, California, for Defendants.

David B. Owens (argued), Anand Swaminathan, and Megan

Pierce, Loevy & Loevy, Chicago, Illinois, for Plaintiff-

Appellee.

Steven A. Drizin and Laura H. Nirider, Bluhm Legal Clinic,

Northwestern Pritzker School of Law, Chicago, Illinois;

Seth P. Waxman and Drew Van Denover, Wilmer Cutler

Pickering Hale and Dorr LLP, Washington, D.C.; Alan E.

Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP,

New York, New York; for Amicus Curiae Center on

Wrongful Convictions of Youth.

Clark M. Neily III and Jay R. Schweikert, Cato Institute,

Washington, D.C., for Amicus Curiae The Cato Institute.

6 TOBIAS V. ARTEAGA

OPINION

WARDLAW, Circuit Judge:

Thirteen year old Art Tobias confessed to the murder of

Alex Castaneda—a murder he did not commit—after an

interrogation in which Los Angeles Police Department

(LAPD) Detectives Michael Arteaga, Julian Pere, and Jeff

Cortina ignored his request for an attorney, told him that he

would look like a “cold-blooded killer” if he did not confess,

and suggested that if he were to exercise his right to remain

silent he would receive harsher treatment by the court.

Tobias was convicted in juvenile court and sentenced to

25 years’ imprisonment. The California Court of Appeal

reversed the conviction, concluding that Tobias’s confession

should have been suppressed by the juvenile court because

the detectives failed to respect his unambiguous request for

an attorney. All parties now agree that Tobias did not

murder Alex Castaneda.

This appeal arises from Tobias’s subsequent 42 U.S.C.

§ 1983 action against the three LAPD Detectives who

conducted the interrogation in which Tobias confessed to

killing Castaneda. Tobias asserted violations of his Fifth and

Fourteenth Amendment rights. The LAPD detectives now

appeal the district court’s denial of their motion for summary

judgment based on qualified immunity for their interrogation

tactics. We affirm the denial of qualified immunity on the

Fifth Amendment claims that the officers continued to

question Tobias after he invoked his right to silence and that

they engaged in unconstitutional coercive questioning

tactics. We reverse the denial of qualified immunity on

Tobias’s Fourteenth Amendment substantive due process

claim because it was not clearly established that the abusive

TOBIAS V. ARTEAGA 7

interrogation techniques used by the officers rose to the level

of “abuse of power that shocks the conscience.” 1

I.

A.

Alex Castaneda was shot and killed in Los Angeles in

the early morning of August 18, 2012. A security camera on

a nearby building captured video of the shooter. LAPD

Detectives John Motto and Julian Pere were among the

officers who responded to the scene, where they learned

from witnesses that one of the assailants had said “Fuck 18th

Street” and “Salvatrucha,” suggesting that the shooting was

related to an ongoing feud between the Mara Salvatrucha

(MS-13) and 18th Street gangs.

The detectives identified 13-year-old Art Tobias as a

suspect after showing the video of the shooting to LAPD

gang enforcement officer Marshall Cooley. Cooley had

never met Tobias in person, but earlier that evening he had

seen photos of him when Tobias’s mother, Helen Contreras,

1

Detectives Arteaga, Cortina, and Pere and a fourth officer,

Detective Motto, also challenge the district court’s denial of qualified

immunity as to Tobias’s Fifth and Fourteenth Amendment fabrication-

of-evidence claim, asserted under Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001) (en banc), but only to the extent that the claim is based

on the contention that Tobias’s confession is the asserted fabricated

evidence. We have held that coerced confession claims are not

cognizable under a Devereaux fabrication-of-evidence theory. See Hall

v. City of Los Angeles, 697 F.3d 1059, 1069–70 (9th Cir. 2012).

“[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 (2018). 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.

8 TOBIAS V. ARTEAGA

came to the police station to report her son missing. Cooley

stated that the shooter in the video “uncannily resembled”

the photos of Tobias. This identification was seconded by

Officer Dora Born, another gang enforcement officer who

had never met Tobias but claimed to be familiar with him

from photos.

Detectives Motto and Michael Arteaga then went to

Berendo Middle School, where Tobias was a student. They

asked Daniel East, a Los Angeles Unified School District

(LAUSD) police officer assigned to the school, and Roger

Negroe, a dean of the school, if they were able to identify the

shooter in the video. At first, Officer East remarked that the

person in the video looked “large . . . to be a middle school

student” and said he had “a hard time IDing that person.”

After the detectives continued to press him, East eventually

stated he thought that the person on the video was Art

Tobias, but he noted Tobias was “so much smaller in real

life” and had a different hairstyle. Dean Negroe could not

identify the shooter from the video. However, after leaving

the meeting with the detectives, Dean Negroe ran into

Tobias, concluded he resembled the shooter in the video, and

informed the detectives of his revised opinion. The

detectives then arrested Tobias and brought him to the police

station.

B.

At the station, Tobias was brought into an interview

room with Detectives Pere and Jeff Cortina. 2 After several

background questions, the detectives began asking Tobias

whether he was affiliated with a gang. Tobias admitted that

2

To the extent this opinion references information from sealed

documents, the information is unsealed for purposes of the disposition.

TOBIAS V. ARTEAGA 9

his previous school “had [him] on gang file” for MS-13, but

explained that he was not actually in the gang. The

detectives then asked Tobias a series of questions to

determine whether he was sufficiently mature to

differentiate right from wrong, pursuant to In re Gladys R.,

464 P.2d 127 (Cal. 1970). It was not until after these

questions, roughly 20 minutes into the interrogation, that

Detective Cortina read Tobias his Miranda rights. Tobias

stated that he understood his rights.

The detectives then showed Tobias the security camera

video of the shooter. Tobias asked, “Who is that?” and

Detective Pere responded, “That, my friend, would be you.”

Tobias immediately and repeatedly denied that he was the

person in the video. When the officers told him that the

shooting had taken place near downtown Los Angeles

around midnight, Tobias explained that he had been miles

away in Arcadia with a friend that night and that his friend’s

mother had dropped him off at home before midnight. The

detectives persisted in accusing Tobias of the shooting,

falsely telling him, “somebody gave you up.”

Then the following exchange took place:

Det. Pere: Okay. Well, I—you know what?

We’re here to speak to you to get

your statement. Now, if your

statement is that that’s not you,

don’t worry. We’re going to write

it down just the way you said.

That’s not—

Tobias: Could I have an attorney?

Because that’s not me.

10 TOBIAS V. ARTEAGA

Det. Pere: But—okay. No, don’t worry.

You’ll have the opportunity.

Detective Cortina quickly jumped in with another question

and the interrogation continued with no further

acknowledgement of Tobias’s request for an attorney, even

though the detectives had previously told him that he “ha[d]

the right to the presence of an attorney before and during any

questioning.” Tobias adamantly continued to deny he was

the shooter.

About 35 minutes into the interview, Detective Pere told

Tobias: “[R]ight now, man, you’re looking at murder. Looks

like you’re 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. 3

But instead of Tobias’s mother, Detective Arteaga

entered the room two minutes later. Arteaga immediately

pulled his chair close to Tobias and began questioning him

in an aggressive tone. In an interrogation that lasted roughly

40 minutes, Arteaga lied to Tobias that somebody had given

him up as the murderer, cursed at Tobias, told Tobias that by

failing to confess he looked like a “cold-blooded killer,” and

brought up Tobias’s “mom” multiple times. Arteaga opened

the interview by telling the 13-year-old, “I just talked to your

mom right now, okay? She’s in there crying her eyes off.

She’s crying like a baby, bro,” and later informed him,

“Your mom’s gone. She—she left crying.” He also told

Tobias that his mother had identified him from the video, 4

3

The record is unclear as to what extent Detectives Pere and Cortina

continued to observe the interrogation.

4

Tobias’s mother had in fact identified him as the person on the

video, but she later recanted the identification.

TOBIAS V. ARTEAGA 11

calling it “fucked up” and “fucking pitiful” that Tobias was

going to “drag [his] mom into this” by forcing her to take the

stand to testify against him.

Over the course of this extended interrogation, Arteaga

repeatedly told Tobias that the court would “take into

consideration” his young age, but that he would lose that

goodwill and likely receive a harsher punishment if he

continued to “lie” about not being the person on the video.

As Arteaga framed it, “[y]ou’re 13 years of age. Do you

think they’re going to throw away the key on you? No.

They’re going to try to get you some help. . . . But we can’t

help you if you’re going to sit here and lie and—and just be

a cold-blooded killer.” As the interview went on, Arteaga

pressed this point harder, insisting, “You’re full of shit. And

when this case is presented to a district attorney’s office,

they’re going to see you’re a cold blooded killer,” and,

“Okay, but I’m telling you man, we have a lot more evidence

than you think, and right now when we take the case to court

they’re going to 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 Arteaga repeated that Tobias’s lack of

confession made him look like a “cold blooded killer” nine

separate times, Tobias finally confessed.

After securing his confession, the detectives put Tobias

in a room alone with his mother. Tobias immediately told

her, “I’ll be straight with you. 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

12 TOBIAS V. ARTEAGA

blooded killer and that they’re going to give me—they’re

going to—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.”

C.

The state tried Tobias in juvenile court for the Castaneda

murder. Before trial, Tobias moved to suppress his

confession, arguing that the detectives violated Miranda v.

Arizona, 384 U.S. 436 (1966), by ignoring his request for an

attorney and that their conduct during the interrogation was

unconstitutionally coercive. See In re Art T., 183 Cal. Rptr.

3d 784, 789–90 (Cal. Ct. App. 2015). The juvenile court

denied the motion and the case went to trial, where a jury

convicted Tobias of one count of first-degree murder and

two counts of attempted murder. See id. at 791–93. He was

sentenced to 25 years in prison. Id. at 793.

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. Id. at 799–801. On

remand, the charges were dismissed, and all parties—

including the arresting officers—now agree that Tobias was

not involved in the Castaneda murder.

TOBIAS V. ARTEAGA 13

D.

In February 2017, Tobias brought this 42 U.S.C. § 1983

action in federal district court against many of the officers

involved in the investigation, including the appellants,

LAPD 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

violation of Fourteenth Amendment substantive due process

based on the detectives’ conduct during the interrogation.

On March 21, 2018, the LAPD Detectives filed a motion

for summary judgment, arguing that there was no triable

issue of fact concerning their liability for the alleged

constitutional violations and that they were entitled to

qualified immunity. The district court denied the motions,

finding disputed issues of material fact on all claims, and

denying qualified immunity because the “rights in the

context of this case are so well established that law

enforcement officers must be deemed to have knowledge of

them. Defendants fail to establish their entitlement to

qualified immunity is ‘beyond controversy.’”

The LAPD Detectives sought certification for an

interlocutory appeal on the denial of qualified immunity on

two claims arising out of Tobias’s interrogation: (1) the

alleged violation of the Fifth Amendment right against self-

incrimination by the use in court of a confession that was

taken in violation of Tobias’s Miranda rights and otherwise

involuntary; and (2) the alleged violation of the Fourteenth

Amendment right to substantive due process because the

interrogation techniques “shocked the conscience.” The

district court denied certification of the motion. The LAPD

Detectives appealed anyway, asserting appellate jurisdiction

14 TOBIAS V. ARTEAGA

over the order denying qualified immunity under Mitchell v.

Forsyth, 472 U.S. 511 (1985), and arguing that their conduct

was not clearly established as unlawful at the time of

Tobias’s interrogation and that they are entitled to qualified

immunity. 5

II.

“Under 28 U.S.C. § 1291, we normally have no

jurisdiction to hear interlocutory appeals from the denial of

summary judgment.” Isayeva v. Sacramento Sheriff’s Dep’t,

872 F.3d 938, 944 (9th Cir. 2017). The collateral order

doctrine creates an exception to this rule: we are permitted

to review an interlocutory appeal to determine whether the

district court committed an error of law in a denial of

qualified immunity. Id. at 944–45; see also Mitchell,

472 U.S. at 527–30; Ames v. King Cnty., 846 F.3d 340, 347

(9th Cir. 2017). Thus, we “have jurisdiction to decide

whether, taking the facts in the light most favorable to the

non-moving party, the defendants are entitled to qualified

immunity.” Isayeva, 872 F.3d at 945. “We review the

district court’s conclusions regarding qualified immunity de

novo . . . consider[ing] all disputed facts in the light most

favorable to the nonmoving party.” Id. at 946 (citation

omitted).

5

This case was originally consolidated with an interlocutory appeal

brought by Daniel East, the LAUSD police officer who identified Tobias

on the video. Our disposition in Tobias v. East, No. 18-56245, was filed

and the mandate issued. Tobias v. East, 803 F. App’x 93 (9th Cir.),

opinion withdrawn in part on reh’g sub nom. Tobias v. Arteaga, 817 F.

App’x 457 (9th Cir. 2020). While we have withdrawn our original

disposition to the extent that it related to the LAPD officers, our decision

as to Officer East remains undisturbed.

TOBIAS V. ARTEAGA 15

III.

“[O]fficers are entitled to qualified immunity under

§ 1983 unless (1) they violated a federal . . . constitutional

right, and (2) the unlawfulness of their conduct was clearly

established at the time.” Wesby, 138 S. Ct. at 589 (internal

quotation marks omitted). “A right is ‘clearly established’

when ‘the contours of the right were already delineated with

sufficient clarity to make a reasonable offic[ial] in the

defendant’s circumstances aware that what he was doing

violated the right.’” Costanich v. Dep’t of Soc. & Health

Servs., 627 F.3d 1101, 1114 (9th Cir. 2010) (quoting

Devereaux, 263 F.3d at 1074); see also Saucier v. Katz,

533 U.S. 194, 195 (2001) (explaining that the law must “put

the officer on notice that his conduct would be clearly

unlawful”). “[C]ourts must not ‘define clearly established

law at a high level of generality, since doing so avoids the

crucial question whether the offic[er] acted reasonably in the

particular circumstances that he or she faced.’” Wesby,

138 S. Ct. at 590 (quoting Plumhoff v. Rickard, 572 U.S.

765, 779 (2014)). Therefore, “[w]hile there does not have to

be ‘a case directly on point,’ existing precedent must place

the lawfulness of the [conduct] ‘beyond debate.’” Id.

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

A.

The district court correctly denied qualified immunity on

Tobias’s claim that the LAPD Detectives violated his 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. See

Davis v. United States, 512 U.S. 452, 458–59 (1994);

Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). If a

suspect requests an attorney during a custodial interrogation,

“he is not subject to further questioning until a lawyer has

16 TOBIAS V. ARTEAGA

been made available.” Davis, 512 U.S. at 458. This request

for counsel must be “unambiguous[].” Id. at 459. “Although

a suspect need not speak with the discrimination of an

Oxford don, he must articulate his desire to have counsel

present sufficiently clearly that a reasonable police officer in

the circumstances would understand the statement to be a

request for an attorney.” Id. (internal citation and quotation

marks omitted). Whether a suspect unambiguously

requested an attorney is an objective question. Id.

Tobias’s statement—“Could I have an attorney?

Because that’s not me”—was an unequivocal invocation of

his right to counsel under clearly established law. See

Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (finding

the request “[c]an I get an attorney right now, man?” was

unequivocal); United States v. de la Jara, 973 F.2d 746, 750,

752 (9th Cir. 1992) (finding the request “[c]an I call my

attorney?” was unequivocal). In Smith v. Endell, we

concluded that the request “Can I talk to a lawyer? At this

point, I think maybe you’re looking at me as a suspect, and

I should talk to a lawyer” was “not [an] equivocal or

ambiguous” request for an attorney. 860 F.2d 1528, 1529,

1531 (9th Cir. 1988). Tobias’s initial question—“Could I

have an attorney?”—differs from the initial question in

Smith in only two respects: Tobias used the word “could”

instead of “can,” and he asked to “have” an attorney rather

than to “talk” to one. This difference is immaterial. See

United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005)

(finding that “there is no real difference” between “Could I

get a lawyer?” and “Can I have a lawyer?”). In modern

usage, “Can I” and “Could I” are both well understood ways

of asking a direct question—the only distinction is that

“could” is considered a more polite form of request than

“can.” See Merriam-Webster’s Collegiate Dictionary 284

(11th ed. 2005) (defining “could” as “a polite form” of

TOBIAS V. ARTEAGA 17

“can”); see also New Oxford American Dictionary 394

(Angus Stevenson & Christine A. Lindberg eds., 3d ed.

2010) (defining “could” as a word “used in making polite

requests”). Similarly, asking to “have” an attorney is at least

as direct as asking to “talk” to one. See Smith, 860 F.2d

at 1531. The second half of Tobias’s statement, “Because

that’s not me,” does nothing to undermine his initial

question, making his request, when taken as a whole, even

less ambiguous than the conditional request found

unambiguous in Smith. See id.

The LAPD detectives suggest that Tobias’s question was

not clearly established as unambiguous because we have

found statements such as “I think I would like to talk to a

lawyer,” “Maybe he ought to see an attorney,” and “[I] might

want to talk to a lawyer,” ambiguous. See Clark v. Murphy,

331 F.3d 1062, 1070–71 (9th Cir. 2003), overruled on other

grounds by Lockyer v. Andrade, 538 U.S. 63 (2003); United

States v. Doe, 60 F.3d 544, 546 (9th Cir. 1995) (per curiam);

United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.

1985), overruled on other grounds by California v. Hodari

D., 499 U.S. 621 (1991). But no one disputes that the police

may continue questioning “when the suspect” expresses only

that he “might want a lawyer.” Davis, 512 U.S. at 462. In

Davis, the Supreme Court found the use of “maybe”

rendered a request for an attorney equivocal. Id.; see also

Doe, 60 F.3d at 546 (relying on Davis to find a mother’s

statement that “‘maybe [her minor child] ought to see an

attorney’ . . . was not clear and unambiguous”). Similarly,

in Clark, a habeas appeal, we found that it was not “contrary

to or an unreasonable application of clearly established

federal law” for the Arizona Supreme Court to determine

that “I think I would like to talk to a lawyer” was ambiguous,

because “I think” is—like “maybe”—“equivocal to some

degree.” 331 F.3d at 1064, 1069–71. In Fouche, a pre-Davis

18 TOBIAS V. ARTEAGA

case, our decision also hinged on the “equivocal” nature of a

request that used the term “might.” 776 F.2d at 1405.

Tobias, by contrast, “did not equivocate in his invocation by

using words such as ‘maybe’ or ‘might’ or ‘I think.’”

Anderson v. Terhune, 516 F.3d 781, 788 (9th Cir. 2008)

(citing Arnold v. Runnels, 421 F.3d 859, 865–66 (9th Cir.

2005)). He asked directly for an attorney, a request the

officers ignored.

Because 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 unambiguous

request for an attorney, 6 we affirm the district court’s denial

of qualified immunity on this claim. 7

B.

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. Cunningham v. City of Wenatchee,

345 F.3d 802, 810 (9th Cir. 2003). In determining whether

a statement was involuntary, “[c]ourts . . . often consider the

following factors: the youth of the accused, his intelligence,

6

The California Court of Appeal agreed that “‘Could I have an

attorney? Because that’s not me,’ was an unequivocal request for an

attorney” under the circumstances. Art T., 183 Cal. Rptr. 3d at 799.

The dissent suggests that because Officer Arteaga was not in the

7

room when Tobias invoked his right to counsel, the claim should not

proceed against him. Dissent at 29 n.1. The detectives did not raise this

argument clearly and distinctly, and so we do not address it. See, e.g.,

McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (“Because this

argument was not raised clearly and distinctly in the opening brief, it has

been waived.”).

TOBIAS V. ARTEAGA 19

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, 350 F.3d 1024, 1027 (9th Cir. 2003). 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).

1.

In Harrison, we concluded that a single question during

interrogation—asking if defendant Sonja Harrison “thought

it would be better if the judge were told that she had

cooperated or had not cooperated”?—was unconstitutionally

coercive, rendering Harrison’s subsequent confession

involuntary. Id. at 890–92. The core of the “improper” and

unduly coercive conduct in Harrison “was the suggestion

that [agents] might inform the court that [Harrison] had not

cooperated.” Id. at 891 (emphasis added). The coercive

impact of this threat was clear: “Harrison broke her silence

only after the agent asked whether she thought it preferable

if the judge were informed that she had cooperated or not

cooperated. The first thing she said was that she thought it

would be better if she talked to the agents and they informed

the judge that she had cooperated.” Id. at 892. Prior cases

similarly highlighted the coerciveness of threatening a

suspect for lack of cooperation. See United States v. Leon

Guerrero, 847 F.2d 1363, 1366 n.2 (9th Cir. 1988)

(“[T]hreatening to inform the prosecutor of a suspect’s

refusal to cooperate violates her fifth amendment right to

remain silent.”); United States v. Tingle, 658 F.2d 1332,

1336 n.5 (9th Cir. 1981) (“Although it is permissible for an

20 TOBIAS V. ARTEAGA

interrogating officer to represent, under some circumstances,

that the fact that the defendant cooperates will be

communicated to the proper authorities, the same cannot be

said of a representation that a defendant’s failure to

cooperate will be communicated to a prosecutor.”).

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.” Harrison, 34 F.3d at 891–92 (quoting Collazo v.

Estelle, 940 F.2d 411, 426 (9th Cir. 1991) (Kozinski, J.,

concurring)). Accordingly, in Harrison we set down a

bright-line rule: “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.” Id. at 891–92 (citation omitted). 8

Under this clearly established law, Detective Arteaga

violated Tobias’s Fifth Amendment rights with his 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 LAPD detectives attempt to distinguish Harrison by

arguing that Tobias was told he would be treated more

8

The dissent argues that Harrison did not establish that such threats

always render a suspect’s subsequent statements involuntary. Dissent

at 42–44. But this is exactly what it did. Indeed, in explaining why the

police may never make such a statement, the Harrison court noted that

“[e]ven if Harrison were unusually resistant to psychological coercion,”

the technique used was unacceptable because it would be coercive for

the run-of-the-mill suspect. 34 F.3d 886 (emphasis added) (citation

omitted); see also Collazo, 940 F.2d at 426 (Kozinski, J., concurring)

(“[V]oluntariness is not merely a fact-bound question whether this

particular suspect’s confession is the product of coercion, but also a legal

question about whether the techniques the police used were tolerable.”).

TOBIAS V. ARTEAGA 21

harshly for affirmatively lying about his involvement in the

murder rather than for failure to cooperate. But anyone in

Tobias’s shoes would have understood that Detective

Arteaga considered anything less than a confession to the

murder a “lie,” because all of Tobias’s attempts to deny the

accusation were met with statements such as “you’re full of

shit” and “the bottom line, whatever you said, you were

there.” In other words, in the context of this particular

interrogation, any threat that Tobias would be treated harshly

for “lying” was no different than a threat that he would be

treated harshly for refusing to cooperate by confessing—

exactly the type of threat we have previously held to be

categorically impermissible. Harrison, 34 F.3d at 891–92;

Leon Guerrero, 847 F.2d at 1366 n.2; Tingle, 658 F.2d

at 1336 n.5. The dissent similarly accuses us of ignoring the

distinction between an officer suggesting silence would

result in harsher treatment and that persisting in lying would

do so. Dissent at 39–42. Even assuming the dissent is

correct that the lynchpin of Harrison is literal silence rather

than failure to cooperate, however, Detective Arteaga also

directly commented on Tobias’s silence—and thus his right

to remain silent—when he told Tobias, “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.”

(emphasis added). This type of comment is clearly

unconstitutionally coercive as established by Harrison.

The LAPD detectives also argue that Harrison involved

a defendant “invoking the right to silence,” whereas Tobias

did not invoke that right. This argument lacks merit because

the defendant in Harrison did not “invoke” her right to

silence. See 34 F.3d at 890, 892. Rather, after Harrison was

advised of her Miranda rights and acknowledged that she

understood them, there was “a brief silence” where no one

said anything, but then the agent resumed questioning,

22 TOBIAS V. ARTEAGA

including making the very statement that was

unconstitutionally coercive. Id. at 890, 892.

What the detectives and dissent implicitly appear to be

suggesting is that Tobias’s case is distinguishable from

Harrison because he affirmatively denied his guilt, rather

than initially remaining silent. To accept this argument, we

would have to conclude that it is less coercive to threaten a

defendant for failing to cooperate when he has denied an

allegation than when he has not yet been asked any questions

or has simply stood silent when faced with accusations. This

is not a tenable position, as Tobias’s case illustrates. Tobias

did not initially remain silent like the defendant in Harrison.

Instead, he tried—desperately—to explain to the detectives

that he had nothing to do with the murder. It was only after

the detectives showed little interest in his explanation and

repeatedly accused him of lying that Tobias concluded that

he had no choice but to falsely confess, out of fear of the

harsh treatment that Detective Arteaga threatened. If it is

unconstitutionally coercive to threaten a defendant who has

yet to say anything that harsh consequences could follow

from a lack of cooperation, see Harrison, 34 F.3d. at 892,

the same must clearly be true when a defendant tries to

cooperate—as Tobias did here, by telling the truth—but the

police continue to demand cooperation until the suspect

confesses.

2.

Unlike Arteaga, who made the threats against Tobias,

Detectives Cortina and Pere did not directly violate Harrison

during Tobias’s interrogation because they did not make

threats of harsher punishment based on lack of cooperation.

However, to the extent they were aware of the violation as it

happened, they may have had a duty to intercede to stop the

TOBIAS V. ARTEAGA 23

constitutional violation and would not be entitled to qualified

immunity.

By 2013, we had clearly established that “police officers

have a duty to intercede when their fellow officers violate

the constitutional rights of a suspect or other citizen.”

Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)

(quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th

Cir. 1994), aff’d in part, rev’d in part on other grounds,

518 U.S. 81 (1996)). If an officer fails to intercede, “the

constitutional right violated by the passive defendant is

analytically the same as the right violated by the person

who” performed the offending action. Koon, 34 F.3d at 1447

n.25. For example, “an officer who failed to intercede when

his colleagues were depriving a victim of his Fourth

Amendment right to be free from unreasonable force in the

course of an arrest would, like his colleagues, be responsible

for subjecting the victim to a deprivation of his Fourth

Amendment rights.” Id.; see also Robins v. Meecham,

60 F.3d 1436, 1442 (9th Cir. 1995) (holding that “a prison

official can violate a prisoner’s Eighth Amendment rights by

failing to intervene” when another official acts

unconstitutionally). “[H]owever, officers can be held liable

for failing to intercede only if they had an opportunity to

intercede.” Cunningham, 229 F.3d at 1289; see also

Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1029–30

(9th Cir. 2002) (no violation of duty to intercede where there

was no evidence that the defendant was aware of the

constitutional violation as it occurred), aff’d sub nom. Groh

v. Ramirez, 540 U.S. 551 (2004).

Tobias submitted evidence that there was a viewing

room “just down the hallway” from the interrogation room,

where officers could watch a video feed of the interrogation.

Detective Pere also re-entered the interrogation room after

24 TOBIAS V. ARTEAGA

Tobias confessed, without being called in. It is plausible that

Cortina and Pere watched Arteaga’s questioning and were

aware of his violation of Tobias’s Fifth Amendment rights

as it occurred. Because neither side presented evidence as to

Cortina and Pere’s involvement in this interrogation, we

remand for the district court to consider in the first instance

whether there are material facts in dispute as to Cortina and

Pere’s liability for Arteaga’s actions. 9

C.

A person subjected to coercive interrogation techniques

can bring a substantive due process claim under the

Fourteenth Amendment. See Stoot v. City of Everett,

582 F.3d 910, 928 (9th Cir. 2009); see also Chavez v.

Martinez, 538 U.S. 760, 774 (2003) (plurality opinion). 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, 582 F.3d at 928 (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, 538 U.S. at 773–74. However,

“police 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, 582 F.3d at 929. “It has also

long been established that the constitutionality of

9

We agree with the dissent that Tobias’s interrogation was also

coercive under Rodriguez v. McDonald, 872 F.3d 908 (9th Cir. 2017).

However, as Rodriguez was not decided until after Tobias’s

interrogation, it is irrelevant to the key question here: whether the LAPD

Officers are entitled to qualified immunity because they did not violate

clearly established law at the time of the incident.

TOBIAS V. ARTEAGA 25

interrogation techniques is judged by a higher standard when

police interrogate a minor.” Crowe, 608 F.3d at 431.

We have found psychologically coercive interrogation

techniques “shock[ed] the conscience,” Stoot, 582 F.3d at

928, in two cases with facts similar to this one. In Crowe,

police interrogated three 14- and 15-year-old boys, Michael,

Aaron, and Joshua, regarding the murder of Michael’s sister.

608 F.3d at 418–26. The officers questioned Michael on

four occasions, with at least one session lasting more than

six hours. Id. at 418–23. After Michael repeatedly denied

any involvement in the murder, officers falsely told him that

they had found blood in his room and had lifted his

fingerprints off the blood stains. Id. at 419. The officers

tried various means to get Michael to confess, including—in

what proved to be the “most ‘effective’” tactic—saying that

“he would get help rather than go to jail” if he confessed. Id.

at 422. Eventually, Michael falsely confessed. 10 Id. In

concluding that the officers’ interrogation tactics “shock[ed]

the conscience,” we emphasized that the 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.” Id. at 432. This amounted to

“[p]sychological torture.” Id.

In Cooper v. Dupnik, we found a cognizable substantive

due process violation where 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,

10

The officers interrogated Joshua and Aaron using similar tactics

for 13.5 and 9.5 hours in a single day, respectively, getting a false

confession out of Joshua but not Aaron. Crowe, 608 F.3d at 423–25.

26 TOBIAS V. ARTEAGA

forced, pressured, emotionally worn down, stressed, and

infused with a sense of helplessness and fear.” 963 F.2d

1220, 1228–33, 1248–50 (9th Cir. 1992), overruled on other

grounds by Chavez, 538 U.S. at 773. The officers

intentionally tried to get a confession for the “purpose of

making it difficult, if not impossible,” for the defendant to

“take the stand in his own defense” after he was charged,

which we found to be a significant “aggravating

circumstance.” Id. at 1249.

The facts of Tobias’s case share much in common with

those in Cooper and Crowe. At 13, Tobias was even

younger than the teens interrogated in Crowe. His direct

request for an attorney was ignored. See Cooper, 963 F.2d

at 1229. He asked for his mother and was assured that she

would be right in, only to be confronted with another round

of increasingly aggressive interrogation instead, leaving him

“isolated from the outside world.” Id. at 1225. For over an

hour, Tobias was cursed at, called a liar, “emotionally worn

down,” “hammered” with questions, and “pressured” to

confess to a crime he did not commit. Id. at 1248; see also

Crowe, 608 F.3d at 432. The LAPD officers falsely insisted

that they had strong evidence of guilt and promised leniency

if Tobias confessed. See Crowe, 608 F.3d at 419–22. While

Tobias was not in shock over a family member’s death,

Arteaga repeatedly invoked Tobias’s family to emotionally

manipulate him, saying that he was disgusted that Tobias

was going to drag his mother into the proceedings by

refusing to provide a confession. The interrogation left

Tobias “infused with a sense of helplessness and fear,”

Cooper, 963 F.2d at 1248: when he spoke to his mother

directly after the interview, she described him as

“panicking,” “crying,” and “scared to shit.”

TOBIAS V. ARTEAGA 27

This extended, overbearing interrogation of a minor,

who was isolated from family and his requested attorney,

comes close to the level of “psychological torture” that we

have held is not tolerated by the Fourteenth Amendment.

Crowe, 608 F.3d at 432. However, Tobias’s interrogation

falls short of the behavior in Cooper and Crowe in one main

respect: unlike those cases, Tobias’s mistreatment lasted

under two hours. 11 We do not hold that “hours and hours,”

Crowe, 608 F.3d at 432, of coercive questioning are required

for an interrogation to “shock[] the conscience,” Stoot,

582 F.3d at 928. But because the prior cases in which we

found “psychological torture” did involve hours of

questioning, and because the officers’ behavior towards

Tobias was otherwise similar to—but not obviously worse

than—the behavior in those cases, 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. al-Kidd, 563 U.S. at 741.

IV.

We AFFIRM the district court’s denial of qualified

immunity on Tobias’s Miranda claim, and as to Detective

Arteaga on Tobias’s coercive interrogation claim. We

REVERSE the denial of qualified immunity for all three

officers for Tobias’s Fourteenth Amendment claim. We

11

There is also no evidence that the officers here intentionally

conspired to deprive Tobias of his right to take the stand, as the officers

did in Cooper. 963 F.2d at 1249. However, that factor was also not

present in Crowe, and is not a requirement for finding interrogation

tactics that violate the Fourteen Amendment. See 608 F.3d at 431–33.

28 TOBIAS V. ARTEAGA

REMAND for further proceedings consistent with this

opinion.

COLLINS, Circuit Judge, concurring in part, concurring in

the judgment in part, and dissenting in part:

Although 13-year-old Art Tobias had participated in the

murder of Edwin Cruz on the evening of August 17, 2012—

for which he pleaded guilty, as a juvenile, to involuntary

manslaughter—he had no role at all in the murder of Alex

Castaneda a few hours later in a different part of Los

Angeles. But after several people tentatively identified

Tobias from surveillance video as one of Castaneda’s

assailants, detectives from the Los Angeles Police

Department (“LAPD”) conducted a 90-minute interrogation

of Tobias on August 20, 2012 with respect to the Castaneda

murder. The interrogation was unlawful in two respects.

First, the officers disregarded Tobias’s explicit request for

an attorney, in clear violation of Edwards v. Arizona,

451 U.S. 477 (1981). Second, the methods used during the

officers’ questioning were impermissibly coercive under the

standards set forth in Rodriguez v. McDonald, 872 F.3d 908

(9th Cir. 2017). As a result of this improper interrogation,

Tobias provided a detailed confession to the Castaneda

murder, using (as it turned out) many of the details of the

Cruz murder. Based on this confession, Tobias was tried as

a juvenile and found guilty of the Castaneda murder, but the

California Court of Appeal reversed due to the Edwards

violation. See In re Art T., 183 Cal. Rtpr. 3d 784 (Cal. Ct.

App. 2015).

Tobias subsequently filed this § 1983 action against

several of the officers involved in the investigation of the

Castaneda murder. The only claims at issue in this appeal

TOBIAS V. ARTEAGA 29

are Tobias’s federal constitutional claims concerning the

conduct of the interrogation itself. The district court denied

qualified immunity to the four officers named in these

claims, and those officers have appealed that denial to this

court. I agree with the majority that the relevant officers

involved in the interrogation were not entitled to qualified

immunity with respect to Tobias’s Fifth Amendment right to

counsel claim, and I therefore concur to that extent in

Part III(A). 1 I also agree with the majority’s ultimate

conclusion to reverse the district court’s denial of qualified

immunity with respect to Tobias’s Fourteenth Amendment

due process claim, but my reasoning differs somewhat from

the majority’s and so I concur only in the judgment as to Part

III(C). I also agree with the majority that the officers are

entitled to summary judgment on Tobias’s fabrication-of-

evidence claim under Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001) (en banc), to the extent that that claim is

based on the allegedly coerced confession. See Maj. Opin.

at 7 n.1. 2 Lastly, because Rodriguez was decided nearly five

years after the interrogation in this case, and because no

1

Only Detectives Cortina and Pere were present when the Edwards

violation occurred. Detective Arteaga specifically testified that he was

unaware of Tobias’s invocation of his right to counsel, and Tobias

presented no contrary evidence in opposing summary judgment.

Accordingly, to the extent that this claim is cognizable in a § 1983 action,

I would allow this claim to go forward only against Detectives Cortina

and Pere. Contrary to the majority’s assertion, see Maj. Opin. at 18 n.7,

this issue was not forfeited. The detectives’ joint brief specifically

identifies which detectives were involved in which aspects of the

interrogation, and with respect to Tobias’s invocation of his right to

counsel, the brief states that “[n]otably, only Detectives Pere and Cortina

were present and heard Tobias’ statement.” I therefore do not join

footnote 7 of Part III(A).

2

This is the only claim before us in which Detective Motto is a

defendant.

30 TOBIAS V. ARTEAGA

other then-existing precedent clearly established that the

officers’ combination of tactics would be deemed coercive,

I would reverse the district court’s denial of qualified

immunity with respect to Tobias’s coerced confession claim.

I therefore dissent from the majority’s opinion as to

Part III(B).

I

LAPD Detectives Julian Pere and John Motto learned

shortly after midnight on August 18, 2012 that a purported

gang-related shooting had just taken place, in which one

victim—Alex Castaneda—was killed and two victims were

critically injured. During the initial investigation that night,

the detectives learned that there were two assailants, one of

whom was captured on a nearby building’s security footage.

After reviewing this footage sometime before 2:00 AM, a

local gang enforcement officer, Marshall Cooley, concluded

that the shooter appeared to be Tobias. Cooley’s

identification was based on his having just reviewed photos

of Tobias hours earlier when, at around 9:00 PM on August

17, Tobias’s mother, Helen Contreras, had come to the

police station to report that Tobias was missing. Contreras

expressed concern that her son was involved with the MS-

13 gang, and she showed Cooley a Facebook post in which

Tobias had stated, “I’m going to go on the most important

mission of my life, don’t know if I’m going to come back

alive or dead or arrested.” After reviewing the surveillance

video, Cooley summoned another gang enforcement officer,

Dora Born, to the scene and, without telling her his views

about the suspect’s identity, asked her to review that video.

Born promptly identified the suspect as Tobias, whom she

knew to be an MS-13 gang member who went by the

moniker of “Casper.”

TOBIAS V. ARTEAGA 31

On August 20, 2012, Detective Motto and Detective

Michael Arteaga went to Berendo Middle School, where

Tobias was a student. They first showed the security footage

to an on-site Los Angeles Unified School District officer,

Daniel East. East had some difficulty identifying the

suspect, but after reviewing the video several times, he stated

that he thought the shooter resembled Tobias, although he

noted that the suspect appeared larger in the video than

Tobias did in person. The detectives thereafter separately

showed the video to a dean of the middle school, Roger

Negroe, but he was unable to identify the suspect. However,

after walking with East and the detectives to the front of the

school, Negroe happened to see someone whom he thought

looked like the suspect in the video, and he notified the

detectives. That person was Tobias, and the detectives took

him into custody.

At the police station, Tobias was initially questioned by

Detectives Pere and Jeff Cortina. After starting with several

background questions, the detectives began asking Tobias

whether he was affiliated with a gang. Tobias admitted that

his previous school “had [him] on gang file” for MS-13 and

that his gang nickname was “Casper,” but he explained that

he was not actually in the gang and instead was “future.”

The detectives then asked Tobias a series of questions to

determine whether he was sufficiently mature to

differentiate right from wrong, pursuant to In re Gladys R.,

464 P.2d 127 (Cal. 1970). After these questions, roughly

20 minutes into the interrogation, Detective Cortina read

Tobias his Miranda rights. Tobias stated that he understood

his rights.

The detectives showed Tobias the security camera video

of the shooter. Tobias asked, “Who is that?” Detective Pere

responded, “That, my friend, would be you.” Tobias

32 TOBIAS V. ARTEAGA

repeatedly denied that he was the person in the video. When

the officers told him that the shooting had taken place on

Alvarado Terrace near downtown Los Angeles, Tobias

explained that he had been miles away in Arcadia that night

with a friend and had been dropped off at his home before

midnight by his friend’s mother. But the detectives persisted

in accusing Tobias of the shooting, falsely telling him:

“somebody gave you up.” The following exchange then

ensued:

Det. Pere: Okay. Well, I—you know what?

We’re here to speak to you to get your

statement. Now, if your statement is that

that’s not you, don’t worry. We’re going to

write it down just the way you said. That’s

not—

Tobias: Could I have an attorney? Because

that’s not me.

Det. Pere: But—okay. No, don’t worry.

You’ll have the opportunity.

Detective Cortina quickly jumped in with 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 in the

video. About 35 minutes into the interview, Detective Pere

told Tobias: “[R]ight now, man, you’re looking at murder.

Looks like you’re going to get booked today for murder, so

I hope you don’t have that claustrophobia like we were

talking about.” Detectives Pere and Cortina then left the

room, telling Tobias his mother would be in to talk to him

shortly.

TOBIAS V. ARTEAGA 33

Instead of Tobias’s mother, Detective Arteaga came in

two minutes later. Detective Arteaga had just finished

meeting with Tobias’s mother, Ms. Contreras, in another

room. Detective Arteaga had shown her a screenshot from

the security footage and asked, “that’s your son right there,

right?” She had replied, “Yes.” This identification was

made before Contreras was aware that the screenshot was

related to the investigation of a shooting. After she was

made aware of the context, she recanted her identification.

Once in the interrogation room, Detective Arteaga pulled

his chair close to Tobias and began questioning him in a

more aggressive tone than Detectives Cortina and Pere had

been using. Over the course of roughly half an hour,

Detective Arteaga repeatedly told Tobias that he would look

like a “cold-blooded killer” if he continued to lie, that it was

“f—ed up” that he was going to force his mother to have to

testify in court to identify him as the person on the video,

and (falsely) that the police already knew that Tobias had

committed the murder because somebody had given him up.

Detective Arteaga also told Tobias several times that he

might receive leniency from the judge if he admitted the

truth. After a long exchange in which Detective Arteaga

continued to emphasize that a judge would likely look

favorably upon Tobias admitting his guilt, Tobias confessed

to the shooting. Tobias said that he had gone to the location

in a car with a 19-year-old nicknamed “Diablo,” whose

girlfriend was driving, and that Diablo’s newborn baby

daughter was in the backseat. Tobias said that he and Diablo

got out of the car, that Diablo gave him a gun, and that

Diablo also had a similar gun. Tobias stated that, although

they both fired their guns, Tobias was the first one to shoot.

A juvenile delinquency petition was thereafter filed

against Tobias under California Welfare and Institutions

34 TOBIAS V. ARTEAGA

Code § 602, alleging, inter alia, that he had murdered

Castaneda. In re Art T., 183 Cal. Rptr. 3d at 789. The trial

court denied Tobias’s motion to suppress his confession and

held a three-day hearing on the charges in the petition. Id.

at 790. As the trial court noted after the close of the

evidence, “no witness” at the hearing “identified Art from

the video,” and the court also stated that the “quality of the

video” was insufficient to determine whether the assailant

was Tobias. Id. at 793. Nonetheless, based largely on the

confession, the trial court found that the charges had been

proved beyond a reasonable doubt. Id. On appeal, however,

the California Court of Appeal reversed. Id. at 801. The

court held that Tobias “unequivocally requested an attorney

prior to his confession and that once he made this request, all

questioning should have stopped.” Id. at 793. Accordingly,

the court held that all of Tobias’s statements to the officers

“should have been suppressed.” Id. at 800. All parties now

agree that Tobias had no involvement in the Castaneda

murder.

Thereafter, Tobias was the subject of a separate juvenile

proceeding in connection with the Cruz murder, and he

pleaded guilty to a charge of involuntary manslaughter. In

describing the events leading up to Cruz’s murder, Tobias

stated that Diablo’s girlfriend had driven Diablo, their infant

daughter, Tobias, and one other person to the scene of that

shooting, but Tobias said that Diablo was the sole shooter.

II

In my view, the district court erred in denying qualified

immunity with respect to Tobias’s claims that the detectives

obtained and used an involuntary confession in violation of

his Fifth Amendment right against self-incrimination.

TOBIAS V. ARTEAGA 35

A

Considered under current law, the overall circumstances

of Tobias’s interrogation would now be deemed to be

impermissibly coercive. Specifically, in our 2017 decision

in Rodriguez, we held that an interrogation presenting many

of the same key features as this one ultimately produced a

confession that “was not voluntary.” 872 F.3d at 923. We

noted that Rodriguez was only 14 years old at the time of his

interrogation and had a “borderline” IQ, id. at 912, 923; that

the officers had ignored his request for counsel, id. at 924;

that the officers falsely told Rodriguez that others had

implicated him, id. at 914, 924 n.3; and that, when Rodriguez

“answered in a way that conflicted with the officers’

narrative, they accused [him] of lying and told him that

‘nobody likes a liar, man, the judges [don’t] like liars, the

probation department doesn’t like liars, police don’t like the

liars,” id. at 912, 923–24 & n.3 (second alteration in

original). Given that Tobias’s interrogation, taken as a

whole, presents essentially the same key features that we

emphasized in Rodriguez, the obtaining of his confession

and its subsequent use at his juvenile proceedings violated

his Fifth Amendment right against compelled self-

incrimination.

But to defeat qualified immunity, it is not sufficient to

show that the plaintiff’s rights were violated. Rather, the

plaintiff must make the additional further showing “that the

official violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct.”

Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (simplified)

(emphasis added). “An officer cannot be said to have

violated a clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

36 TOBIAS V. ARTEAGA

violating it.” City of Escondido v. Emmons, 139 S. Ct. 500,

503 (2019) (emphasis added) (citations and internal

quotation marks omitted). Tobias failed to meet this

demanding standard. See Romero v. Kitsap Cnty., 931 F.2d

624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of

proof that the right allegedly violated was clearly established

at the time of the alleged misconduct.”).

Although Detectives Pere and Cortina committed a

clear-cut Miranda/Edwards violation, see Maj. Opin. at 15–

18, that fact alone is not sufficient to establish that the

resulting confession was involuntary. Bradford v. Davis,

923 F.3d 599, 616 (9th Cir. 2019) (“[S]tatements taken in

violation of Edwards . . . are not presumed to be involuntary

by virtue of the Edwards violation alone.”). Considered

against the then-controlling precedent that has found

coercion in custodial interrogation, the objective

circumstances of Tobias’s interrogation, viewed in the light

most favorable to him, were not such that any reasonable

police officer would have realized that the Fifth Amendment

right against compelled self-incrimination was being

violated.

Although Tobias was only 13 years old and his

unequivocal request for counsel was improperly brushed

aside, his early-evening interrogation lasted only

approximately 90 minutes, involved no physical threats or

abuse, and otherwise relied on interrogation techniques that

cannot be said, either singly or in the combination presented

here, to have violated then-clearly-established law (e.g.,

bluffing about the strength of the evidence the officers had,

arguing that the courts would go easier on the suspect if he

did not lie and instead told the truth about what he had done,

and shaming the suspect for the effect a prosecution would

TOBIAS V. ARTEAGA 37

have on his family). 3 Despite the violation of Tobias’s right

to counsel, in my view Tobias has failed to show that, even

considered as a whole, the detectives’ conduct in the

interrogation constituted impermissible coercion under

clearly established law as it stood in 2012.

Like the Fourth Amendment prohibition of excessive

force, the Fifth Amendment protection against the use of

involuntary statements at a criminal trial is one that involves

“an area of the law ‘in which the result depends very much

on the facts of each case.’” Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018) (per curiam) (citation omitted). Courts

employ “no ‘talismanic definition’ of voluntariness,” but

instead consider the “totality of the circumstances” of the

interrogation. United States v. Haswood, 350 F.3d 1024,

1027 (9th Cir. 2003) (citation omitted); see also id. (“Courts

. . . often consider the following factors: the 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.”). Consequently, “‘[s]pecificity’” is important

here, because “‘it is sometimes difficult for an officer to

3

In seeking rehearing, Tobias and amicus curiae suggest that the

coercive nature of the officers’ tactics is confirmed by the fact that

Tobias “falsely confessed to the facts the detective fed him.” Pet. for

Reh’g En Banc at 6 (emphasis added); see also Br. for Amicus Curiae

The Center on Wrongful Convictions of Youth at 16–17. The record

does not support that assertion. In fact, as noted earlier, the key details

that Tobias supplied in his false confession to the Castaneda murder at

issue here (such as the identity of the shooter and the number and

descriptions of the other persons present with Tobias in the car) were not

supplied by the officers but instead correspond to the circumstances of

the separate Cruz murder in which Tobias was concededly involved only

a few hours earlier.

38 TOBIAS V. ARTEAGA

determine how the relevant legal doctrine’”—here, the law

against coerced confession—“‘will apply to the factual

situation the officer confronts.’” Kisela, 138 S. Ct. at 1152

(citation omitted). As a result, a plaintiff seeking to defeat

qualified immunity must establish that “‘any reasonable

official in the defendant[s’] shoes would have understood’”

that the particular circumstances of the specific

interrogation were impermissibly coercive under the then-

existing case law. Id. at 1153 (emphasis added) (citation

omitted); see also Hunter v. Bryant, 502 U.S. 224, 229

(1991) (“The qualified immunity standard gives ample room

for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.”

(simplified)).

Here, the particular circumstances of the interrogation do

not present the same sort of confluence of features that, as of

2012, we had previously held to be coercive. Cf., e.g.,

Taylor v. Maddox, 366 F.3d 992, 1012, 1015–16 (9th Cir.

2004) (confession was clearly involuntary where 16-year-

old suspect was arrested late at night, questioned until

3:00 AM, threatened with a jab to the face, and had his

repeated requests for counsel denied), overruled on other

grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th

Cir. 2014); Gladden v. Holland, 366 F.2d 580, 582 (9th Cir.

1966) (finding coercion where officers ignored a request for

counsel, conducted the interrogation “throughout the night,”

and called in alleged rape victims to view the suspect). On

the contrary, they appear to be less coercive than other pre-

2012 cases in which we found that coercion had not been

established. See, e.g., Cunningham v. City of Wenatchee,

345 F.3d 802, 810 (9th Cir. 2003) (finding no coercion

where interrogation went for eight hours without a break,

officers continued to question the suspect after claims of

TOBIAS V. ARTEAGA 39

innocence, and officers played on the suspect’s fear of

prison).

B

The majority nonetheless concludes that Detective

Arteaga violated clearly established law, based on its

conclusion that we had held, in United States v. Harrison,

34 F.3d 886 (9th Cir. 1994), that “[a]ny 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.” See Maj. Opin.

at 19. That is wrong, because the rule that the majority

purports to extract from Harrison involves two significant

innovations that post-date the 2012 interrogation of Tobias.

First, the majority ignores the distinction between

suggesting that silence would result in harsher treatment and

suggesting that persisting in lying would do so. Harrison

held 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.” 34 F.3d at 891–92 (second

emphasis added). In Harrison, the agents advised the

defendant of her Miranda rights and then, before she said

anything, “asked her whether she thought it would be better

if the judge were told that she had cooperated or had not

cooperated.” Id. at 890. We held that “the suggestion that

they might inform the court that she had not cooperated” was

“improper conduct.” Id. at 891. We reasoned that “‘a

defendant may not be made to suffer for his [or her]

silence,’” id. (emphasis added) (quoting United States v.

Tingle, 658 F.2d 1332, 1336 n.5 (9th Cir. 1981)), and that

therefore “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

40 TOBIAS V. ARTEAGA

by a court or prosecutor,” id. at 891–92 (second emphasis

added); see also Collazo v. Estelle, 940 F.2d 411, 414, 417

(9th Cir. 1991) (en banc) (where suspect, at the outset of the

police interrogation, refused to talk and asked for a lawyer,

the officers’ threat that “it might be worse” for him if he did

not talk was an impermissible “attempt in the police station

to impose a penalty on Collazo’s choice to remain silent”).

Given that Tobias never chose to be silent, Detective Arteaga

here never “commented on Tobias’s silence,” see Maj. Opin.

at 21–22, and Detective Arteaga did not threaten Tobias that,

had he stayed silent, that would have led to harsher

treatment. Instead, Detective Arteaga told Tobias that he

thought the affirmative story Tobias was telling was a lie and

that Tobias’s persistence in lying would make him look like

a “cold-blooded” killer, resulting in harsher treatment from

the prosecutor and the courts. 4 Given this crucial distinction

4

For example, Detective Arteaga told Tobias that, when the case

was presented to the district attorney’s office, they were “going to see

that you’re a gangster who lies.” In another lengthy speech to Tobias,

Detective Arteaga stated: “[W]hen we take the case to court they’re

going to 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. But when you’re honest and you tell the truth it’s

going to help you out in the long run. I’m telling you that right now,

they’re going to have some compassion for you. But they do not like

gang murders where people lie, deny it.” Detective Arteaga later

similarly told Tobias that there are cases “where guys have told the truth,

they’ve been honest, and they get a much reduced sentence,” and that,

“I’m telling you this, [the judge is] going to look at you a lot more—with

a lot more compassion if you told the truth [about] what happened.” The

majority misleadingly cites, out of context, Detective Arteaga’s use of

the above-quoted phrase “you didn’t want to speak” as if it were a

comment on an invocation of the right to remain silent. See Maj. Opin.

at 21. But as the more complete quotation provided above makes clear,

the entire speech can only be understood as referring to Detective

Arteaga’s belief that Tobias was continuing to lie. Indeed, the majority’s

TOBIAS V. ARTEAGA 41

between Harrison and this case, it cannot be said that every

reasonable officer would have understood in 2012 that such

comments would have violated the principles established in

Harrison.

To be sure, the distinction just noted was effectively

eliminated by our decision in Rodriguez, in which we

applied the reasoning of Collazo in a factual context that

was, in all relevant respects, materially similar to the one

presented here. Although we did not cite Harrison in

Rodriguez, we cited Collazo and made clear that the same

principles discussed in that case (and in Harrison) apply in

the context of an officer’s threat that, if the suspect persisted

in lying, that might result in harsher treatment from the

prosecutor or the court. 872 F.3d at 924. The problem is

that Rodriguez was decided five years after the interrogation

in this case, and the majority points to no then-existing

precedent that extended the principles of Collazo and

Harrison to the persistence-in-lying context. 5 But as the

notion that this was somehow a comment on Tobias’s supposed “silence”

is refuted by the fact that Tobias never invoked his right to silence (as

opposed to his right to counsel) and by the fact that he had been speaking

with the detectives for nearly an hour by that point.

5

The two cases cited by the majority do not support its conclusion.

Tingle did not involve a suspect who had remained silent, and we went

on to hold that the “record simply does not support Tingle’s claim that

[the officer] made any improper promise or agreed to seek her early

release” if she cooperated. 658 F.2d at 1335 (emphasis added). We

instead concluded that Tingle’s confession was involuntary due to the

officer’s effort “to cause Tingle to fear that, if she failed to cooperate,

she would not see her young child for a long time.” Id. at 1336 (emphasis

added). In a footnote, we noted in dicta that we “disapprove[d]” making

“statement[s] that failure to cooperate will be reported.” Id. at 1336 n.5

(emphasis added). That statement, by its terms, says nothing about

whether officers may admonish suspects that persistence in lying would

42 TOBIAS V. ARTEAGA

Supreme Court has admonished, the qualified-immunity

analysis is limited to “‘existing precedent’” because future

decisions cannot give “‘fair notice’” to government officials.

Kisela, 138 S. Ct. at 1153–54 (citations omitted); see also id.

at 1154 (admonishing this court for relying on a case “that

postdated the shooting at issue” and “was therefore ‘of no

use in the clearly established inquiry’” (citation omitted)).

For the same reasons, the majority’s argument today for

extending the principles of Harrison to the different context

presented here, see Maj. Opin. at 20–22, is of no value in

determining what was clearly established law in 2012.

Because it would not have been clear to every reasonable

officer in 2012 that a suspect could not be warned that

continuing to lie during an interrogation could lead to

harsher consequences, Detective Arteaga did not violate

clearly established law and is entitled to qualified

immunity. 6

Second, in addition to extending the Harrison rule to a

context in which it had not been applied pre-2012, the

majority radically transforms that rule in a further respect

that is unsupported by precedent. According to the majority,

not be viewed favorably. And in United States v. Guerrero, 847 F.2d

1363 (9th Cir. 1988), we found the confession there to have been

voluntarily given, and we distinguished Tingle on its facts. Id. at 1366–

67 & n.2.

6

Indeed, it is ironic that, even after Rodriguez, this court itself

distinguished Harrison on precisely the ground that, unlike in Harrison,

the officer there “was merely warning [the suspect], who was already

talking with him, that if he was not honest in his statements to police, it

could make the situation he was in worse.” United States v. Cragg,

807 F. App’x 640, 643 (9th Cir. 2020) (emphasis added). If we are still

making this distinction three years after Rodriguez, we cannot expect

officers to have foreseen in 2012 that Rodriguez would effectively

eliminate that distinction in 2017.

TOBIAS V. ARTEAGA 43

a violation of its broader Harrison rule is now per se

“unconstitutionally coercive.” See Maj. Opin. at19. This

principle was not clearly established law in 2012; indeed, it

was not the law at all until the majority announced this novel

rule in its decision today. Harrison itself nowhere adopts the

majority’s per se rule requiring an automatic finding of

involuntariness. On the contrary, it reiterated that the

voluntariness inquiry turns on “the totality of the

circumstances” and requires a court to consider whether

“‘the government obtained the statement by physical or

psychological coercion or by improper inducement so that

the suspect’s will was overborne.’” 34 F.3d at 890 (citation

omitted). The majority points to Harrison’s statement 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.’” See Maj. Opin. at 20 (quoting 34 F.3d at 891–

92). But the majority ignores the very next sentence of

Harrison, which confirms that the court there was not

creating a per se rule about voluntariness: “‘The

admissibility of a confession turns as much on whether the

techniques for extracting the statements, as applied to this

suspect, are compatible with a system that presumes

innocence and assures that a conviction will not be secured

by inquisitorial means as on whether the defendant’s will

was in fact overborne.’” See Harrison, 34 F.3d at 892

(quoting Miller v. Fenton, 474 U.S. 104, 116 (1985))

(alteration omitted). Harrison thus may have established a

per se prophylactic rule about how officers should behave in

an interrogation, 7 but Harrison made clear that voluntariness

7

The additional language that the majority quotes from Harrison

only serves to confirm this point. As the majority notes, see Maj. Opin.

at 20 n.8, Harrison suggested that the technique used there was

unacceptable because it “risks overcoming the will of the run-of-the-mill

44 TOBIAS V. ARTEAGA

still had to be considered in light of all of the circumstances,

and we proceeded to do just that in evaluating the

voluntariness of Harrison’s confession. 8 Id. at 892

(considering, in addition to the improper statement to

Harrison, the fact that “fifteen armed federal agents had just

searched the house, arrested her, and taken her companion

away to jail”). The majority’s clear misreading of Harrison

as establishing an automatic rule of involuntariness was not

the law in this circuit until the majority announced it today,

and it certainly was not clearly established law in 2012.

III

I agree with the majority’s decision to reverse the district

court’s denial of qualified immunity with respect to Tobias’s

substantive due process claim under the Fourteenth

Amendment, but I reach that conclusion for somewhat

different reasons than the majority.

Although this claim (unlike the Fifth Amendment claim)

does not require a showing that the confession was used

suspect.’” 34 F.3d at 892 (emphasis added) (citation omitted). That is

the language of a prophylactic rule and not of conclusively-presumed

involuntariness.

8

Although the operative complaint’s Fifth Amendment claim

contains separate paragraphs alleging both that the confession was

involuntary and that the confession was unlawfully obtained in violation

of Edwards’ prophylactic per se rule, it does not contain a comparable

specific allegation that the confession was obtained in violation of a per

se prophylactic rule of the sort suggested by Harrison. Rather, the

complaint only mentions the threats of harsher treatment as a factor

weighing in favor of involuntariness. Accordingly, we do not have a

separate Harrison-based prophylactic-rule claim before us, and I

therefore have no occasion to address whether such a claim would be

cognizable under § 1983.

TOBIAS V. ARTEAGA 45

against Tobias, “[t]he standard . . . is quite demanding,”

requiring something akin to “‘police torture or other abuse’”

or comparable conduct that “‘shocks the conscience.’” Stoot

v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009)

(citations omitted). In contending that the detectives

violated clearly established law in this regard, Tobias relies

on Crowe v. County of San Diego, 608 F.3d 406 (9th Cir.

2010), and Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992),

but the facts of both cases are materially different from those

presented here.

In Crowe, police interrogated three 14- and 15-year-old

boys, Michael, Aaron, and Joshua, regarding the murder of

Michael’s sister, Stephanie. 608 F.3d at 417. During the

third of Michael’s four interrogations, at least one of which

lasted six hours, Michael consented to a “truth verification

exam,” after which an officer told him that some of his

answers indicated “some deception.” Id. at 419. The officer

then asked, “Is there something, though, that maybe you’re

blocking out . . . in your subconscious mind that we need to

be aware of?” Id. After Michael denied this claim, another

officer “told Michael they found blood in his room, lifted

fingerprints off the blood stains, and that the police now

knew who killed” his sister, and asked Michael “what [he]

did with the knife.” Id. The officer urged Michael to do “the

right thing by Stephanie’s name and . . . by your parents,”

before he suggested the idea that Michael “killed Stephanie

but did not remember it,” given that the officers were

“[a]bsolutely” “sure about the evidence.” Id. at 419–20.

Other tactics included telling Michael that there were “two

Michaels” and that “the good part of Michael didn’t do it,”

and telling Michael that if he confessed, as opposed to

“ma[king] the system prove” the murder, “he would get help

rather than go to jail.” Id. at 421–22. Michael then made up

a story of how he committed the murder, explicitly and

46 TOBIAS V. ARTEAGA

repeatedly stating—as he was telling it—that the story was a

“complete lie” that he was providing to avoid jail based on

the officers’ advice. Id. at 422.

The officers also interrogated Joshua and Aaron using

similar tactics, getting a false confession out of Joshua but

not Aaron. 608 F.3d at 423–25. Joshua was interrogated for

12 hours on one occasion and 13½ hours in a second session

weeks later, and Aaron was interrogated for 9½ hours on one

occasion. Id. We noted that, at around “3:00 a.m.,” one of

the officers used “the computer stress voice analyzer” on

Joshua, “describing the device to Joshua in the same way as

he had to Michael and Aaron.” Id. at 424. Moreover, the

officer continued Joshua’s interrogation “for several hours

and he repeatedly denied Joshua’s requests for sleep.” Id. at

424–25.

We concluded in Crowe that these interrogation tactics

“shock[ed] the conscience,” emphasizing that the children

were minors, that one of the suspects was deeply distraught

over his sister’s murder, that the interrogations involved

significant psychological manipulation, and that the

interrogations lasted for “hours and hours.” Id. at 532.

Given that the circumstances of the interrogations in

Crowe were so much worse than those in this case, Crowe

cannot be said to have made clear to every reasonable officer

that the methods used in interrogating Tobias violated his

substantive due process rights. As the majority notes, the

interrogations of all of the suspects in Crowe lasted for many

hours, whereas Tobias’s interrogation (including the initial

preliminary questions) lasted only about 90 minutes. But the

differences go well beyond that. The questioning of each of

the boys involved the psychologically manipulative use of a

“computer stress voice analyzer,” and Joshua’s interrogation

involved deliberate sleep deprivation. The detectives’

TOBIAS V. ARTEAGA 47

behavior in this case simply does not compare to the

“[p]sychological torture” that the officers in Crowe inflicted

upon the suspects in that case. 608 F.3d at 432.

Cooper is even further afield. There, police officers—

who were “quite candid” about the intent of their scheme—

meticulously “developed a strategy for interrogating” an

adult defendant, which involved “cut[ting] [him] off from

the rest of the world,” “creating [a] sense of hopelessness,”

making him “emotionally worn down,” and intentionally

“not honor[ing] an assertion of counsel or silence.” 963 F.2d

at 1223–25 (emphasis omitted). The officers’ plan was to

“prevent the defendant from testifying at his own trial” by

obtaining material for impeachment during the interrogation.

Id. The officers “knew their plan patently was

unconstitutional.” Id. at 1225. Executing their plan, the

officers deliberately ignored the defendant’s repeated

invocations of his right to counsel. Id. at 1129–31. Although

Detectives Pere and Cortina also ignored Tobias’s single

invocation of the right to counsel, there is no evidence that

they went into the interrogation with a plan to do so, not to

mention a “purpose of making it difficult, if not impossible,

for [Tobias] to take the stand in his own defense” through

methods that are “deliberately unlawful and flout the

Constitution.” Id. at 1249–50.

Because controlling precedent does not establish

“beyond debate” that the detectives’ conduct here shocks the

conscience, Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011),

the detectives are entitled to qualified immunity on this

claim. I therefore concur in the majority’s judgment

reversing the denial of summary judgment as to this claim.

* * *

48 TOBIAS V. ARTEAGA

For the foregoing reasons, I concur in part, concur in the

judgment in part, and respectfully dissent in part.