# California Attorneys for Criminal Justice v. Butts > Court of Appeals for the Ninth Circuit · November 8, 1999 · 195 F.3d 1039 URL: https://www.frixlaw.com/law-library/cases/6984366 ## Case - **Full name:** CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE Criminal Courts Bar Association James McNally James Johnson Bey v. James T. BUTTS, City of Santa Monica Chief of Police The City of Santa Monica Ray H. Cooper Shane Talbot, and Willie L. Williams, Chief of Police City of Los Angeles Raymond Bennett Michael Crosby, Defendants California Attorneys for Criminal Justice, James McNally James Johnson Bey v. James T. Butts, City of Santa Monica Chief of Police The City of Santa Monica Ray H. Cooper Shane Talbot City of Los Angeles v. Raymond Bennett Michael Crosby - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** November 8, 1999 - **Citations:** 195 F.3d 1039; 1999 WL 1005103 - **Precedential status:** Published - **Opinion:** Concurring in part by Schwarzer - **Judges:** Canby, Schwarzer, Thomas - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6984366 ## How later opinions describe it (automated extraction) - holding that Miranda and its progeny establish clearly and unequivocally that coercive, custodial interrogation violates the Fifth Amendment - finding coercive interrogation because the police disregarded the suspect’s Miranda rights ## Opinion text SCHWARZER, Senior District Judge, Dissenting and Concurring: I respectfully dissent as to plaintiff James Bey and concur in the judgment as to plaintiff James McNally. Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987), tells us that the discretionary acts of government officials are protected by qualified immunity unless the right the official is alleged to have violated ... [has] been “clearly established.” The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [That] is to say that in the light of pre-existing law the unlawfulness mustrbe apparent. Id. at 640 , 107 S.Ct. 3034 . In determining the validity of the qualified immunity claim, therefore, we must look at the state of the law at the time the conduct complained of occurred. See Doe v. Petaluma City Sch. Dist., 54 F.3d 1447 , 1451 (9th Cir.1995) (qualified immunity upheld because right of action under Title IX not clearly established until Supreme Court so decided, subsequent to the complained of conduct). I. BEY The majority rests its decision on the proposition that “[o]fficers who intentionally violate the rights protected by Miranda [[by] insistence ... on questioning after, invocation of the right to silence and unequivocal requests for counsel] must expect to have to defend themselves in civil actions.” Op. at 1050. Plaintiff James Bey was interrogated on March 8, 1991, by Officers Raymond Bennett and Michael Crosby. On February 6, 1991, one month earlier, a panel of this court decided Cooper v. Dupnik, 924 F.2d 1520 (9th Cir.1991) (Cooper I), rev’d en banc, 963 F.2d 1220 (9th Cir.1992) (Cooper II). Cooper had brought a § 1983 action against police officers and others alleging various violations of his constitutional rights in connection with his interrogation while in custody. The opinion states that “Cooper contends that his continued interrogation, following his clear and unequivocal request to contact his attorney is a patent violation of the constitution.” Id. at 1526. It then goes on to firmly reject this contention, reversing the denial of qualified immunity, stating: Although there is no case on point from our circuit, all out-of-circuit cases hold that a plaintiff may not, as matter of law, maintain a section 1983 action based upon the failure by the police to issue Miranda warnings. [Citations omitted.] ... These cases are not precisely on point, since in the instant case the police gave the Miranda warnings but refused *1051 to allow Cooper to exercise his rights. But the reasoning of these cases does apply-since Miranda requirements are not a constitutional prerequisite, their violation cannot form the basis of a section 1988 suit.... Cooper can cite to no case allowing a section 1983 suit under the circumstances of his case. Id. at 1527-28. 1 Moreover, the Supreme Court had repeatedly held prior to March 1991 that Miranda’s warning requirement is not a dictate of the Fifth Amendment. Thus, in Connecticut v. Barrett, 479 U.S. 523 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987), the Court said: It remains clear, however, that this prohibition on further questioning-like other aspects of Miranda-is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose. [Citation omitted.] By prohibiting further interrogation after the invocation of these rights, we erect an auxiliary barrier against police coercion. Id. at 528 , 107 S.Ct. 828 . See also Michigan v. Tucker, 417 U.S. 433, 444 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974) (finding “these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected”); New York v. Quarles, 467 U.S. 649 , 653 & n. 3, 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984) (because Miranda is only a “prophylactic” rule, the Court considered a threat to public safety and acknowledged some “limited circumstances where the judicially imposed strictures of Miranda are inapplicable”); Duckworth v. Eagan, 492 U.S. 195, 201-03 , 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989) (telling a suspect that an attorney will only be appointed if and when the suspect goes to trial does not render the notice constitutionally inadequate because the warnings mandated by Miranda are “procedural safeguards” and “prophylactic,” not requiring administration in any exact form); Michigan v. Harvey, 494 U.S. 344, 350-51 , 110 S.Ct. 1176 , 108 L.Ed.2d 293 (1990) (admitting a statement made without counsel and “not subject to proper Miranda” for impeachment purposes because the violations alleged “relate only to procedural safeguards”). Similarly, the Ninth Circuit prior to March 1991 did not recognize Miranda warnings as a cognizable constitutional right. “Miranda violations do not abridge the Fifth Amendment constitutional privilege against self-incrimination, but instead involve prophylactic standards laid down to safeguard that privilege.” United States v. Patterson, 812 F.2d 1188, 1193 (9th Cir.1987). In declaring that “continued interrogation after a defendant invokes his Miranda right to counsel does not violate the Fifth Amendment,” Cooper, 924 F.2d at 1528 , and “that a violation of Miranda rights is not itself a violation of the constitution,” Id. at 1527 , the opinion in Cooper I was consistent with prior Supreme Court and Ninth Circuit law as it stood in 1991. Thus, the rationale of the majority opinion-that the officers violated a clearly established constitutional right by questioning Bey after he invoked his right to silence-cannot stand. 2 Bey argues, however, that this case is not about violation of the Miranda rules, but about coercion in violation of the Fifth Amendment. The question remains whether in 1991 there was clearly established law that the officers’ interroga *1052 tion violated the Fifth Amendment, i.e., when they continued the interrogation despite the suspect’s repeated attempts to invoke his Miranda rights, asserted that they could not use his statements in court, and claimed that they possessed incriminating physical evidence. Op. at 1045-46. It is not enough for the court simply to say that such interrogation tactics may be found to be coercive; for qualified immunity to be overcome, the law to that effect must be clearly established. The majority’s reliance on the Miranda rules on this issue is a bootstrap argument for, as noted, those rules do not establish a constitutional right. The Court’s statement in Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 is apposite: “[I]f the test of ‘clearly established law’ were to be applied at this level of generality, it would bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow [v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)].” Id. at 639 , 107 S.Ct. 3034 . Anderson requires that “in the light of pre-existing law the unlawfulness must be apparent.” Id. at 640 , 107 S.Ct. 3034 . Because there was no such law in 1991, defendants’ qualified immunity motion as to Bey’s claims should have been granted. II. McNALLY Plaintiff James McNally was interrogated by Officers Ray Cooper and Shane Talbot on March 2, 1993. Cooper II had been decided on May 5, 1992, ten months earlier. In Cooper II, an en banc panel of this court reversed Cooper I and found interrogation “that was involuntary because it was actively compelled and coerced by law-enforcement officers during in-custody questioning” can form the basis for a § 1983 action against the police officers who interrogated him. Cooper, 963 F.2d at 1243 . The limits of Cooper II’s holding, as relevant to this case, are encapsulated in the following statement: “This case does not establish a cause of action where police officers continue to talk to a suspect after he asserts his rights and where they do so in a benign way, without coercion or tactics that compel him to speak.” Id. at 1244. It is plain, therefore, that Cooper II does not establish law that supports the majority opinion’s broad rationale that “the insistence of the ... interrogators on questioning after invocation of the right to silence and unequivocal requests for counsel violated the strictures of Miranda” and thereby barred qualified immunity. Op. at 13399. Before a constitutional violation can be found, there must be more than a Miranda infraction-there must be coercive tactics that compel the suspect to speak in violation of the Fifth Amendment. Id. at 1243-1244. The question is what tactics, in 1993, were clearly established by law to be coercion violating the Fifth Amendment. The majority summarizes the conduct of the officers as “attempting] to discourage [McNally] from seeking counsel, implying] that his situation would become much worse if he spoke with an attorney, and assuring] him that whatever he said could not be used against him in any way.” Op. at 1045. 3 In July 1991, this court held substantially similar questioning of a sus *1053 pect to be coercion violating the Fifth Amendment. Collazo v. Estelle, 940 F.2d 411 (9th Cir.1991) {en banc). The critical colloquy between Detective Destro and defendant Collazo, after Collazo asked if he could speak with a lawyer, went as follows: Destro: — Once you get a lawyer, he’s gonna say forget it. You know, don’t talk to the police. Then it might be worse for you. Collazo: — Pardon me? Destro: — Then it might be worse for you. Id. at 414 . 4 The court held that “demean[ing] the pretrial role of counsel,” id. at 418 , in an “attempt to discourage Colla-zo from speaking to a lawyer,” id. at 416 , “Heading] Collazo to believe he could reap some legal benefit by excluding defense attorneys from the pre-trial process,” id. at 418 , and “attempting] in the police station to impose a penalty on Collazo’s choice to remain silent amounted] to a serious infringement of Collazo’s Fifth Amendment right.” Id. at 417 . The court concluded that “Officer Destro’s overreaching behavior violated not only Miranda, but also the general Constitutional prohibition against coercive interrogation practices likely to result in involuntary responses.” Id. at 419 . Because it was clearly established, prior to McNally’s interrogation, that denigrating the role of counsel and threatening to impose a penalty on a suspect’s exercise of his Fifth Amendment rights constitutes coercion violating the Fifth Amendment, Officers Cooper and Talbot are not entitled to qualified immunity. I therefore concur in the judgment affirming the denial of qualified immunity. . The dissenting opinion did not take issue with this reasoning but read the allegations of the complaint as stating a claim for violation of rights secured by the Fifth, Sixth and Fourteenth Amendments. Id. at 1538. . It is true that in Cooper II, the court found that the officers knew in 1986 that they were violating the Constitution. 963 F.2d at 1237 . Apart from the fact that the conduct involving Bey was substantially different from that involved in Cooper, the officers in Cooper did not have before them a court of appeals opinion rendered the preceding month that told them that violation of the Miranda rules was not a constitutional violation that could support a § 1983 claim. . Note that Bey's case is different, both on its facts and on its timing. The officers interrogating Bey in 1991 did not denigrate the role of counsel or threaten Bey with harsher treatment as a result of his invocation of his right to remain silent. In contrast, in McNally’s interrogation, the detectives repeatedly indicated they would not trust McNally if he chose to consult a lawyer: Detective: —[Y]ou have invoked your right to have an attorney. McNally: —Right. Detective: —I still would like to know what happened now because-well, I’ll tell you where I come from. I don't trust anything that anybody tells me after they've talked to an attorney and the D.A. that will be working with us on this case doesn't either. The detectives went on to demean the role of counsel at least four more times, saying attorneys "really mess up the system,” "fuck your attorney," "It's like black mail with attorneys, man,” and "would you trust something that somebody told you after they talked to an attorney?” McNally proceeded to confess to the murder. . It was clearly established law in 1993 that a detective during interrogation cannot threaten a suspect with harsher treatment as a result of a suspect's decision to remain silent and not cooperate. See United States v. Tingle, 658 F.2d 1332, 1336, n. 5 (9th Cir.1981) ("[I]t is permissible for an 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. Refusal to cooperate is every defendant’s right under the fifth amendment.”). See also United States v. Guerrero, 847 F.2d 1363 , 1366 & n. 2 (9th Cir.1988) (noting that recommendations of leniency as a result of cooperation are appropriate, but "threatening to inform the prosecutor of a suspect’s refusal to cooperate violates her fifth amendment right to remain silent.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6984366. Public record. Not legal advice.