# Cooper v. Dupnik > Court of Appeals for the Ninth Circuit · May 5, 1992 · 963 F.2d 1220 URL: https://www.frixlaw.com/law-library/cases/9000845 ## Case - **Full name:** Michael COOPER, husband, in his own capacity and as parent of Abram and Adam Cooper, minors Lidia Cooper, wife, in her own capacity and as parent of Abram Cooper and Adam Cooper, minors v. Clarence DUPNIK, Sheriff, Pima County Tom Taylor, an employee of Pima County Sheriff's Department Weaver Barkman, an employee of Pima County Sheriff's Department, Defendants-Appellants Michael COOPER, husband, in his own capacity and as parent of Abram and Adam Cooper, minors Lidia Cooper, wife, in her own capacity and as parent of Abram Cooper and Adam Cooper, minors v. Clarence DUPNIK, Sheriff, Pima County, and City of Tucson Tucson Police Department Peter Ronstadt Karen Wright Gene Scott Timothy O'Sullivan Kay McCall - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** May 5, 1992 - **Citations:** 963 F.2d 1220; 1992 WL 88704 - **Precedential status:** Published - **Opinion:** Dissent by Leavy - **Judges:** Alarcon, Browning, Brunetti, Fletcher, Hug, Leavy, Poole, Schroeder, Thompson, Trott, Wiggins - **Cited by:** 122 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Chavez v. Martinez, 538 U.S. 760 (2003). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9000845 ## How later opinions describe it (automated extraction) - explaining that the “primary aggravating circumstances” were, the defendants’ purposes of keeping Cooper from testifying in his own defense and precluding him from presenting an insanity defense and concluding that “[w]hat made these purposes unacceptable” was “the unconstitut… - holding that statements were involuntary where officer’s “psychological ploy was designed to make [the suspect] ignore the warnings, and begin to talk. [The officer] intended to undercut [the suspect’s] Constitutional right not to talk ... by complying with Miranda’s safeguard… - holding that § 1983 claim for infringement of privilege against self-incrimination was stated by allegations that the plaintiffs statements were compelled, although the statements were never used - describing elaborate police Task Force plan to ignore systematically a suspect’s requests for counsel, on the theory that such would induce hopelessness and thereby elicit an admission, which would then be used to keep the suspect off the witness stand, see Oregon v. Hass, 420… - finding that a Sec. 1983 claim for a violation of the Self-Incrimination Clause was stated by allegations that statements were compelled, even though the statements were never used ## Opinion text LEAVY, Circuit Judge, with whom Circuit Judges ALARCON and BRUNETTI join, dissenting: I join in Judge Brunetti’s dissent and add these further reasons: The Miranda court said in 1966: The warnings required and the waiver necessary in accordance with our opinion today, are in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by the defendant. Miranda, 384 U.S. at 476, 86 S.Ct. at 1629. Two years later the 80th Congress passed and President Johnson signed into law what is now 18 U.S.C. § 3501 , 1 which *1257 makes voluntary confessions admissible in evidence in the courts of the United States and the District of Columbia. Section 3501 requires the courts to consider various factors including all the Miranda warnings, but says, “The presence or absence of any of the above mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.” Neither the Supreme Court nor this court has held that 18 U.S.C. § 3501 is unconstitutional. Congress apparently thought it had a better fact finding process than that of the Supreme Court when it concluded that the standards in section 3501 were constitutionally adequate to avoid the abuses of the past. Plaintiffs, in their first count, allege a denial of the right to counsel and the right to remain silent. The majority refers to the claim as the alleged violation of Cooper’s substantive constitutional rights, instead of merely violations of the procedural safeguards provided by Miranda. Whatever the majority finds to be so clear about the legal standards in 1986 did not prevent the plaintiffs from including as part of their first claim what they thought was a violation of a “substantive right” to counsel. Plaintiffs now concede that portion of the claim is inapposite because Cooper was never charged in court. The remaining portion of the first claim is the “substantive right” to remain silent. How was a clearly established substantive right to remain silent, which the majority finds Miranda was designed to protect, violated when a President and Congress have suggested that Miranda rights do not even necessarily control the admissibility of statements? The majority assures us that “this case does not establish a [section 1983] cause of action where police 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. I ask: what happens in that case to what the majority says is a substantive right to remain silent? It is lost even without a waiver if it is taken away in a benign way? The majority says, “What we do confront is a case laden with police misconduct that is identical with the historical practice [of incommunicado interrogation] at which the right against self-incrimination was aimed.” Cooper had been informed jokingly of his Miranda rights, interrogated for twenty minutes in the probation office, and at the end of the interview formally arrested. He then made his first request for an attorney and was transported to the sheriffs department. The majority says “it is our view that every word he uttered after he was taken to the sheriff’s department was compelled.” Opinion at 1243. Apparently the majority is holding that “compulsion” to this extent renders subsequent statements involuntary and calls for a section 1983 remedy. Whatever the holding of the majority may be, it comes in a case in which whatever was “coerced” from the accused con *1258 vinced his interrogators of his innocence and was apparently totally consistent with the truth. In my view, no privilege against self-incrimination is lost until a court erroneously admits into evidence an involuntary or otherwise infirm statement. . Section 3501 reads, in part: (a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is *1257 received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. (b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9000845. Public record. Not legal advice.