Cooper v. Dupnik

BRUNETTI, Circuit Judge,

with whom Circuit Judges LEAVY and ALARCON, join, dissenting:

Police interrogated Michael Cooper for four hours, and, according to their plan, ignored his requests to consult with his attorney. None of Cooper’s statements obtained during this interrogation were used against him in any criminal proceeding.

In questioning Cooper, the police intentionally disregarded the prophylactic procedures mandated by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The consequence of such a violation of Miranda safeguards is the suppression of the statements at any criminal proceedings. This prevents a violation of the Fifth Amendment by prohibiting the state from compelling a defendant to be a witness against himself by using his presumptively coerced statements.

Because the violation of the Miranda procedure alone is not a violation of the Fifth Amendment, a remedy under 42 U.S.C. § 1983 is not available under a Fifth Amendment theory.

Nor has Cooper stated a valid § 1983 claim under a due process theory. The interrogation of Cooper was not accomplished in such an outrageous fashion as to shock the conscience and thus deprive Cooper of his substantive due process rights. The police used interrogation methods that were harsh but which have been held to satisfy the requirements of due process. Their techniques, employed during four hours of questioning, involved no physical abuse or threats of physical abuse.

Because their conduct did not violate the Fifth Amendment and thus would not provide a § 1983 cause of action under that amendment, it would be anomalous to bootstrap the claim through a due process analysis when the amendment on point was not violated.

Because Cooper has not stated a cause of action under 42 U.S.C. § 1983 , I respectfully dissent.

I

Section 1983 provides that any person acting under color of state law shall be liable for any injuries caused by a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983 (emphasis added). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker v. McCollan, 443 U.S. 137, 140 , 99 S.Ct. 2689, 2692 , 61 L.Ed.2d 433 (1979).

One of Cooper’s claims is that the police conduct violated the Fifth Amendment. The Fifth Amendment provides that “no person ... shall be compelled in any criminal case to be a witness against himself.” The question then is whether the police violated that right when they continued to question Cooper despite his request for a lawyer and his indications that he did not wish to answer any more questions.

There is no question that the police procedure violated the Miranda safeguards and that the Fifth Amendment would prohibit the government from using any of the statements against Cooper in court. The majority, however, also contends that the police violated Cooper’s underlying Fifth Amendment rights. This conclusion is contrary to direction from the Supreme Court and to the language of the Fifth Amendment itself.

First, Cooper was not compelled to be a witness against himself in any criminal case. He faced no trial and accordingly none of his statements were offered *1254 against him. The language of the amendment, then, suggests that there was no violation of the Fifth Amendment.

The majority, however, finds that Miranda “extend[ed] the Fifth Amendment into police stations.” Opinion at 1239. From this, the majority concludes that police action in refusing to honor a request to remain silent and a request for counsel is a violation of the Fifth Amendment. This is a misreading of Miranda .

Miranda essentially held that statements obtained from criminal defendants during custodial interrogations would not be admissible in court against those defendants unless the police followed appropriate safeguards designed to insure the absence of coercion in obtaining any incriminating statements.

The limitations of the holding of Miranda are apparent from the first sentence of Section I of the opinion: “The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom in any significant way.” Miranda, 384 U.S. at 445 , 86 S.Ct. at 1612 (emphasis added).

The Court did not hold, nor did it need to hold, that the Fifth Amendment can be violated absent the use of an incriminating statement against a criminal defendant in court. Instead, the decision sought to avoid the admission in court of statements improperly coerced from criminal defendants.

This reading of the Fifth Amendment and of Miranda has been confirmed by subsequent Supreme Court decisions. The decisions reinforce that the purpose of Miranda is to prevent presumptively coerced and involuntary statements from being used against criminal defendants. In Connecticut v. Barrett, 479 U.S. 523 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987), the Supreme Court discussed Miranda’s rule that “once the accused ‘states that he wants an attorney, the interrogation must cease until an attorney is present.’ ” Id. at 528 , 107 S.Ct. at 831 . The Court stated: “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 instead is justified only by reference to its prophylactic purpose.” Id. (emphasis added).

Likewise, in Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), the Court explained:

The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion.

Id. at 306-07, 105 S.Ct. at 1291-92 (emphasis in original). In a footnote, the Court added: “A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements.” Id. at 306 n. 1, 105 S.Ct. at 1292 n. 1 (emphasis in original).

In Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), which the majority contends bolsters its argument that the Fifth Amendment can be violated absent any use of incriminating statements, the Court was concerned once again only with preventing the use at trial of an incriminating statement. Id. at 435 , 94 S.Ct. at 2359 .

These discussions support the proposition that it is the use of coerced statements that constitutes a Fifth Amendment violation. The consistent thrust of the Supreme Court decisions has been to prevent the unconstitutional use of such statements. The Miranda requirements are measures designed to help prevent such unconstitutional use of coerced statements.

This view is supported by a case on point by the Eighth Circuit. In Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir.) (en banc), cert. denied, 490 U.S. 1091 , 109 S.Ct. 2431 , 104 L.Ed.2d 988 (1989), the *1255 court found that the failure of officers to read a suspect his Miranda rights and a subsequent denial of his requests for counsel did not support a § 1983 claim. See also Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir.1987) (failure of officers to give Miranda warnings did not deprive suspect of constitutional rights because no statements obtained during custodial interrogation were used against suspect at trial); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976) (“The Miranda decision does not even suggest that police officers who fail to advise an arrested person of his rights are subject to civil liability; it requires, at most, only that any confession made in the absence of such advice of rights be excluded from evidence.”).

The majority attempts to limit its holding by stating that it is not finding a § 1983 cause of action where merely Miranda safeguards are violated. For example, the majority opines that “[t]his 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.” Opinion at 1244.

This purported limit is illusory. The main point of the majority opinion seems to be that the authorities’ deliberate disregard of Miranda safeguards — that is, their failure to stop questioning Cooper when he requested a lawyer — led to the coercion and Cooper’s imprisonment in a “totalitarian nightmare.” Opinion at 1243.

When, then, in the majority’s view, would such a deliberate disregard of Miranda rights not represent “coercion or tactics that compel him to speak?” Opinion at 1244. The majority opinion provides no meaningful guidance and is likely to lead to a quagmire of claims that could be avoided by limiting claims to actual violations of the Fifth Amendment.

II

Cooper also claims that the police conduct during his interrogation deprived him of his rights to substantive due process under the Fourteenth Amendment. This claim also must fail because the techniques used by the police in their interrogation were not so extreme as to shock the conscience.

In Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), the Supreme Court held that police who broke into a suspect’s house, struggled to open his mouth to remove capsules, and then directed medical personnel to remove the capsules from his stomach by means of a tube violated the suspect’s right to due process because it amounted to conduct that “shocks the conscience.” Id. at 172 , 72 S.Ct. at 209 . “They are methods too close to the rack and the screw to permit of constitutional differentiation.” Id.

The police methods in this case do not shock the conscience. As stated by the original panel’s decision in this case, Cooper’s substantive due process claim rests on his assertion that:

[H]e was interrogated for four hours, that the police officers used psychological pressure to attempt to coerce him into confessing, that his numerous requests to see an attorney were denied, that he was angry and upset, that he was questioned regarding his religious beliefs, that he had a psychological condition which made him particularly susceptible to stress from interrogation, and that he was held incommunicado for twenty-four hours before finally being released.

924 F.2d at 1530. I do not defend the police techniques. I simply contend the techniques do not shock the conscience as did the conduct in Rochin and other substantive due process cases involving police misconduct. Cooper was not physically assaulted in any way, he was not deprived of sleep, nor was he subjected to incommunicado interrogation over a period of days. His interrogation lasted only four hours and consisted of rough questioning by the police. It was hardly, as the majority asserts, “sophisticated psychological torture.” Opinion at 1248.

In Wilcox v. Ford, 813 F.2d 1140, 1146-48 (11th Cir.), cert. denied, 484 U.S. 925 , 108 S.Ct. 287 , 98 L.Ed.2d 247 (1987), the *1256 Eleventh Circuit found that police officers did not violate the due process rights of a suspect when they used extreme methods in questioning witnesses. The procedural posture of the parties in Wilcox differs markedly from the situation in this case: the plaintiff in Wilcox was a habeas corpus petitioner claiming that rough police interrogation of potential witnesses violated his due process rights. Nonetheless, the court’s analysis of whether the police conduct in that case was “shocking to the universal sense of justice” is helpful here.

The Wilcox court noted that:

The transcripts reflect that the interrogating officers threatened to charge Wrentz with murder, threatened to lynch him, put words in his mouth, and told him he was headed for eternal damnation ... Marshall [another potential witness] received similar treatment.... Marshall was interrogated for eight and a half hours without being provided with food or water. The officers then threatened to send him to the electric chair along with two other Wilcox employees and also told him that he would die in prison.

Id. at 1147 .

The court found that such interrogation techniques did not violate the suspect’s due process rights. “The police misconduct here, while not commendable, is not so extreme that it violates a sense of ‘fundamental fairness, shocking to the universal justice.’ ” Id. at 1148 .

What really offends the majority and seems to support its conclusion of a substantive due process violation is the fact that the officers interrogated Cooper in knowing violation of his Miranda rights. This is not enough to establish a violation of substantive due process rights.

As discussed above, the police conduct did not violate Cooper’s substantive Fifth Amendment rights. To hold that the officers nonetheless violated a separate constitutional right because they disregarded prophylactic rules designed to safeguard Fifth Amendment rights is anomalous. The Supreme Court has indicated that Miranda rights themselves are not constitutional rights. Bootstrapping a constitutional claim through a due process analysis sidesteps this fundamental point.

The Supreme Court’s instruction that there should be “great reluctance to expand the reach” of substantive due process in fundamental rights cases applies here as well. See Bowers v. Hardwick, 478 U.S. 186, 195 , 106 S.Ct. 2841, 2846 , 92 L.Ed.2d 140 (1986).

Because Cooper’s allegations do not show a violation of substantive due process, he has not stated a valid § 1983 claim based on the Due Process Clause.

Ill

In its zeal to respond forcefully to the deplorable police conduct in this case, the majority has departed from the clear requirements for § 1983 actions. As Cooper has not shown that the appellant’s actions constitute a violation of Fifth Amendment or substantive due process constitutional rights, I would reverse the district court and grant summary judgment for all appellants on Cooper’s § 1983 claims based upon these constitutional grounds.

I respectfully dissent.