Cooper v. Dupnik

NOONAN, Circuit Judge,

concurring and dissenting:

Michael Cooper was held by members of the Pima County Sheriff’s Department and *1538 the Tucson Police Department and interrogated as to his responsibility for a series of notorious rapes. He was lyingly informed that his prints had been found at the scene of one of the rapes, and he was inaccurately told that his prints matched those found in two of the other rapes. He was told that he was Jewish and it was suggested that as a Jew he must be a prey to guilt. He asked for counsel and, pursuant to a police plan already devised, he was denied counsel. The interrogation began at 3:00 P.M., and, with a break to transport him from one point of custody to another, lasted till 7:30 P.M. The purpose of the interrogation was to create a sense of hopelessness in Cooper, leading him to confess guilt of the rapes. The interrogation in fact created stress in Cooper, resulting in his becoming anxious, angry, and upset and in his crying and sobbing. He never confessed because he had nothing to confess. The experience of interrogation has left him with memories and reactions that constitute a syndrome of post-trauma stress.

Addressing his claim of injury in Count 1, the court begins to analyze it as though it were for violation of Cooper’s rights under Miranda. Count 1, ¶ 23 of Cooper’s Second Amended Complaint alleges: “This intentional and willful conduct of the Defendants deprived Mr. Cooper of the rights secured by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.” What Cooper has sought damages for is the violation of substantive rights, not the violation of the procedural safeguards provided by Miranda.

The court, when eventually it does address Cooper’s due process claim, declares: “There is an insurmountable problem in finding a due process violation necessary to support a section 1983 claim in this case using this theory, however, because Cooper, an innocent man, was never coerced into a confession.” The position of the court is that if unlawful police interrogation overcomes the will of a guilty suspect who then confesses, the suspect has been denied due process and has a civil rights action against his interrogators; but if the suspect is innocent rather than guilty and so has nothing to confess, the same kind of interrogation is no violation of due process and the innocent man has no redress for violation of his due process rights. Our law has many subtleties and turnings, but such a counter-intuitive result cannot be, and is not, the law.

Controlling authority in our circuit has already decided that an attempt to coerce a confession by means that include depriving the suspect of counsel constitutes a violation of 42 U.S.C. § 1983 , and that there is no qualified immunity for such an attempt. Robichaud v. Ronan, 351 F.2d 533 (9th Cir.1965). It is true that the facts alleged in Robichaud were more outrageous than the facts here — in Robichaud the plaintiff was confined in the drunk tank for 25 days — but the degree of brutality employed does not affect the principle. In this case the police intentionally employed forms of psychological harassment intended to produce a confession while intentionally depriving Cooper of counsel. Under Robi-chaud Cooper has a cause of action and the police have no immunity.

Our notion of due process is not that police brutality or police contempt for the law is bad solely because it produces unreliable confessions that taint the subsequent trial. Our notion of due process is that agents of the state, especially those armed with weapons and custodial authority, must be scrupulously law-abiding in their treatment of all citizens, including citizens under suspicion. In the historic case in which the Supreme Court first found police methods to be intolerable, Chief Justice Hughes not only held the coerced confessions inadmissible but declared that it “would be difficult to conceive of methods more revolting to the sense of justice.” Brown v. Mississippi, 297 U.S. 278, 286 , 56 S.Ct. 461, 465 , 80 L.Ed. 682 (1936). His condemnation went to the methods as well as to the admission of the confession.

The Tucson Police Department and the Pima County Sheriff’s Department did not engage in the barbarities practiced by sheriffs in rural Mississippi in the 1930’s, but at a sophisticated level their calm and calculated determination to deny Cooper counsel while working on his will to produce a *1539 confession does not conform with the requirements of due process. Cf. Haynes v. Washington, 373 U.S. 503, 515 , 83 S.Ct. 1336, 1344 , 10 L.Ed.2d 513 (1963). Due process requires that “state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as ‘law of the land.’ ” Hebert v. Louisiana, 272 U.S. 312, 316 , 47 S.Ct. 103, 104 , 71 L.Ed. 270 (1926), quoted in Brown v. Mississippi 297 U.S. at 286 , 56 S.Ct. at 465 . An attempt to coerce a confession by depriving a suspect of requested counsel does not comport with justice or the law of the land.

The police department and the sheriffs department had a great public emergency on their hands. It was imperative to catch “the Prime Time Rapist.” Weaver Bark-man of the sheriffs department has deposed: “I weighed the interests of Michael Cooper with the interests of society and determined that it was more important to determine whether Cooper was in fact the Prime Time Rapist than it was to honor his request for an attorney.” [ER, CR 199, Exh. 1, 1111]. Barkman undoubtedly believed he was acting for the common good. But he had too narrow a notion of the common good. The common good includes fairness in police procedures, freedom from coercion, and access to requested counsel. Due process was violated when Barkman and his associates consciously put their professional goal of apprehending a criminal above the larger requirements of our law. The district court should be affirmed.

I concur in the affirmance of the district court on Count 5 and in the award of attorney’s fees.