Opposition Brief — Mark Graf, et al., Petitioners v. Hyung Seok Koh, et ux.

No. 19–624

In the Supreme Court of the United States

__________

MARK GRAF AND JOHN USTICH,

Petitioners,

v.

HYUNG SEOK KOH,

Respondent.

__________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

__________

BRIEF IN OPPOSITION

__________

JON LOEVY

Counsel of Record

STEVEN ART

DANIELLE HAMILTON

SCOTT DRURY

LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

jon@loevy.com

December 16, 2019

QUESTIONS PRESENTED

This case concerns an interrogation where the

parties dispute whether: (1) petitioners provided

Hyung Suk Koh with his Miranda rights or, instead,

impermissibly told him that he did not need an

attorney; (2) petitioners denied Koh access to his

attorney, who was present at the police station

during the interrogation; (3) petitioners improperly

conducted Koh’s interrogations in English, without

a qualified, competent interpreter, despite Koh’s

clear inability to understand English; and (4)

petitioners denied Koh access to his needed

medications, despite his repeated requests for them.

In light of these circumstances, the questions

presented are:

1. Does the circuit court’s dismissal based on a

lack of jurisdiction of petitioners’ fact-based

challenges to the district court’s conclusion that

evidence in the record was sufficient to require a

trial on Koh’s Fifth Amendment claims warrant this

Court’s review?

2. Does this case present the proper vehicle for

considering whether the district court correctly

denied qualified immunity because petitioners

violated Koh’s clearly established Fifth Amendment

rights by extracting his confession using myriad

techniques long held to be impermissibly coercive?

(i)

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................... i

TABLE OF AUTHORITIES .................................. vii

STATEMENT OF THE CASE ................................. 1

I.

PETITIONERS’ MISSTATEMENT OF

THE RECORD ................................................... 1

II. FACTUAL BACKGROUND .............................. 1

A. The Kohs ..................................................... 1

B. Paul Koh’s Suicide ...................................... 2

C. Petitioners Arrest the Kohs ....................... 3

D. Petitioners Interrogate Koh ....................... 4

1. Petitioners

Exploited

Koh’s

Mental

and

Physical

Vulnerabilities ....................................... 4

2. Petitioners

Exploited

the

Language Barrier .................................. 5

3. Koh Was Not Allowed to Contact

His Attorney .......................................... 7

4. Petitioners Did Not Give Koh

Miranda Warnings ................................ 7

5. Koh Truthfully Denied Killing His

Son ......................................................... 8

6. Petitioners’ Scheme to Get Koh to

Confess................................................... 8

7. Petitioners Coerced Koh’s False

Confession.............................................. 9

iv

TABLE OF CONTENTS—Continued

Page

8. Petitioners Barred Koh’s Attorney

from the Interrogation Room .............. 11

9. His Will Overborne, Koh Made

Incriminating Statements .................. 11

E. Criminal Proceedings Against Koh .......... 12

III. PROCEEDINGS BELOW ............................... 12

A. The Kohs’ Claims ...................................... 12

B. The District Court’s Decision ................... 12

C. The Seventh Circuit’s Decision ................ 16

SUMMARY OF ARGUMENT ............................... 18

ARGUMENT .......................................................... 19

I.

THIS

CASE

PRESENTS

AN

EXCEPTIONALLY POOR VEHICLE FOR

CONSIDERING

THE

QUESTIONS

PRESENTED IN THE PETITION ................. 19

A. The Petition Presents Numerous,

Distinct Issues .......................................... 20

B. Because the Issues Are Independent of

Each Other, the Court Would Have to

Resolve Each Distinct Issue ..................... 20

C. Resolving Each and Every Issue in the

Petition Will Not Resolve This Case,

Which Is Set for Trial in April 2020 ........ 21

v

TABLE OF CONTENTS—Continued

Page

D. The Petition’s Fact-Bound Challenges

Make This A Poor Case to Consider the

Numerous, Distinct Issues ....................... 22

II. THE SEVENTH CIRCUIT’S DISMISSAL

OF THE APPEAL FOR LACK OF

JURISDICTION

IS

A

STRAIGHTFORWARD APPLICATION OF THIS

COURT’S PRECEDENT ................................. 24

A. This Court’s Cases Establish that

Qualified-Immunity Appeals Falling

Within the Collateral Order Doctrine

Are Limited to Purely Legal Questions ... 24

B. No Circuit Split Exists About the

Jurisdictional Limits Set Out in

Johnson ..................................................... 26

C. The Seventh Circuit Correctly Held

that It Lacked Jurisdiction to Decide

Petitioners’ Interlocutory Appeal ............. 29

III. PETITIONERS’ SECOND AND THIRD

QUESTIONS PRESENTED ARE NOT

PROPERLY BEFORE THIS COURT ............. 30

A. The District Court Correctly

Determined that Petitioners Used

Impermissible Tactics to Coerce a

Confession from Koh................................. 31

B. The District Court Correctly

Determined that Petitioners’

Impermissible Tactics Violated Clearly

Established Law ....................................... 33

vi

TABLE OF CONTENTS—Continued

Page

C. The Courts Below Correctly

Determined that Petitioners’ Causation

Argument is a Factual Question

Unrelated to Qualified Immunity ............ 33

CONCLUSION ....................................................... 34

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Adarand Constructors, Inc. v.

Mineta, 534 U.S. 103 (2001)........................ 30

Arizona v. Fulminante, 499 U.S.

279 (1991) .................................................... 32

Armstrong v. Daily, 786 F.3d 529

(7th Cir. 2015) ............................................. 34

Behrens v. Pelletier, 516 U.S. 299

(1996) .................................................... passim

Burningham v. Raines, 139 S. Ct.

787 (2019) .................................................... 19

Cohen v. Beneficial Loan Corp., 337

U.S. 542 (1949) ...................................... 24, 25

Crawford-El v. Britton, 523 U.S.

574 (1998) .................................................... 27

Digital Equipment Corp. v. Desktop

Direct, 511 U.S. 863 (1994) ......................... 24

DiLuzio v. Vill. of Yorkville, Ohio,

796 F.3d 604 (6th Cir. 2015) ....................... 29

Gauger v. Stinson, 138 S. Ct. 1325

(2018) ..................................................... 19, 27

George v. Morris, 736 F.3d 829 (9th

Cir. 2013) ..................................................... 28

Herriman v. Kindle, 136 S. Ct.

1657 (2016) .................................................. 19

Hopper v. Plummer, 887 F.3d 744

(6th Cir. 2018) ............................................. 29

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Howell v. United States, 442 F.2d

265 (7th Cir. 1971) ................................ 31, 32

Hurt v. Wise, 880 F.3d 831 (7th Cir.

2018) ...................................................... 23, 29

Jackson v. Curry, 888 F.3d 259

(7th Cir. 2018) ............................................. 32

Johnson v. Fankell, 520 U.S. 911

(1997) ........................................................... 27

Johnson v. Jones, 515 U.S. 204

(1995) .................................................... passim

Jones v. Clark, 630 F.3d 677 (7th

Cir. 2011) ............................................... 24, 25

Kindl v. City of Berkley, 793 F.3d

391 (6th Cir. 2015) ...................................... 28

Kinney v. Weaver, 367 F.3d 337

(5th Cir. 2004) ............................................. 28

Koch v. Rugg, 221 F.3d 1283 (11th

Cir. 2000) ..................................................... 28

Mallak v. City of Baxter, 823 F.3d

441 (8th Cir. 2016) ...................................... 27

Malloy v. Hogan, 378 U.S. 1 (1964) ................. 32

Miranda v. Arizona, 384 U.S. 436

(1966) .................................................... passim

Mitchell v. Forsyth, 472 U.S. 511

(1985) ..................................................... 24, 25

Ortiz v. Jordan, 562 U.S. 180

(2011) ..................................................... 27, 34

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Penn v. Escorsio, 764 F.3d 102 (1st

Cir. 2014) ..................................................... 28

Peterson v. Franklin, 139 S. Ct. 411

(2018) ........................................................... 19

Plumhoff v. Rickard, 134 S. Ct.

2012 (2014) ............................................ 26, 27

Richardson v. McKnight, 521 U.S.

399 (1997) .................................................... 27

Romo v. Largen, 723 F.3d 670 (6th

Cir. 2013) ..................................................... 29

Scott v. Harris, 550 U.S. 372 (2007)........... 27, 28

Stinson v. Gauger, 868 F.3d 516

(7th Cir. 2015) ............................................. 26

Streetman v. Lynaugh, 812 F.2d

950 (5th Cir. 1987) ...................................... 32

Via v. LaGrand, 469 F.3d 618 (7th

Cir. 2006) ..................................................... 28

Walton v. Powell, 821 F.3d 1204

(10th Cir. 2016) ........................................... 27

Weidner v. Thieret, 866 F.2d 958

(7th Cir. 1989) ............................................. 32

Winfield v. Bass, 106 F.3d 525 (4th

Cir. 1997) ............................................... 28, 29

Wise v. Hurt; 139 S. Ct. 412 (2018) .................. 19

Ziccardi v. City of Philadelphia,

288 F.3d 57 (3d Cir. 2002) ........................... 28

Zivotofsky v. Clinton, 566 U.S. 189

(2012) ........................................................... 30

STATEMENT OF THE CASE

I.

PETITIONERS’ MISSTATEMENT OF

THE RECORD

Petitioners Mark Graf and John Ustich moved

for summary judgment, the district judge concluded

that genuine disputes of material fact required a

trial, and petitioners appealed, asserting that they

were entitled to qualified immunity. In proceedings

below and before this Court, petitioners continue to

ignore long-standing limits on appellate jurisdiction

in collateral-order appeals by advancing their own

version of disputed facts, while omitting all

unfavorable evidence. See Johnson v. Jones, 515

U.S. 204 (1995). Pursuant to Rule 15.2, Hyung Seok

Koh and Eunsook Koh (the Kohs) therefore object to

petitioners’ Factual Background sections.

The circuit court reproached petitioners for their

“backdoor effort to contest the facts,” a tactic they

again employ here. App. 16a. 1 The Kohs respectfully

ask this Court to reject petitioners’ Factual

Background sections, their misstatements of the

record, and their requests for review predicated on

their self-serving factual accounts.

II.

FACTUAL BACKGROUND

A. The Kohs

Hyung Seok Koh (Mr. Koh or Koh) and his wife,

Eunsook Koh (Mrs. Koh), are first-generation

Korean-Americans. They moved to the United

1

Citations to “App.” refer to petitioners’ appendices.

Citations to “D.” refer to the electronic docket entries in the

district court.

(1)

2

States, worked hard, established businesses, and

settled in Northbrook, Illinois, where they sent their

children to school and surrounded themselves with

family, friends, and a vibrant church community.

D.316 at 2. Unfortunately, their son Paul suffered

mental-health problems, including suicidal ideation

and symptoms of schizophrenia. App. 87a-88a.

B. Paul Koh’s Suicide

On April 16, 2009, around 3:45 a.m., Koh

awakened to his wife’s screams. App. 2a. Mrs. Koh

had just found their son, Paul, lying in a pool of

blood, next to a knife, in the entryway of their home.

Id. Paul had cut his own throat. Id. His death was a

suicide, and there was no reason to think otherwise.

D.315 ¶¶1, 17–18, 53.

The Kohs believed Paul was still alive and called

911. App. 2a. The couple then got dressed in

anticipation of going to the hospital. Id. Upon arrival

to the Kohs’ home, non-petitioning defendant

officers from the Northbrook Police Department

found Mr. Koh hysterical near the front door of the

house, and Mrs. Koh hugging Paul’s body while

sobbing. Id.; App. 29a.

The defendant officers initially recognized that

Paul had killed himself, a conclusion corroborated

by: (a) blood-stain patterns; (b) the lack of evidence

of a struggle; (c) the absence of injuries on the Kohs;

(d) the fact that any assailant would have been

drenched in blood requiring extensive clean up; (e)

the lack of blood trails or transfer around Paul’s

body; and (f) other physical evidence showing Paul

had killed himself, as opposed to having been

assaulted by his parents or anyone else. App. 2a;

3

D.315 ¶¶ 18, 53. Further, the defendant officers

learned Paul had been hearing voices, battling

depression, abusing substances, and saying he

wanted to die. App. 34a. Notwithstanding all of this

objective evidence of suicide—which petitioners

knew—petitioners still chose to investigate Paul’s

death as a murder. Pet. 7.

C. Petitioners Arrest the Kohs

When the defendant officers arrived at the scene,

the Kohs desperately wanted to drive to the hospital

to get Paul help. App. 3a, 29a. Instead, the officers

pushed the Kohs to the ground in their front yard,

where they proceeded to confine and watch over

them. Id. The officers denied the Kohs’ requests to:

(1) see Paul; (2) retrieve Mr. Koh’s medicine (for

diabetes,

high

blood

pressure,

and

hyperammonemia) from inside the house; and (3) go

to the hospital. Id. at 3a, 30a. Eventually, the

officers forced the Kohs into a squad car and drove

them to the Northbrook Police Department without

asking the Kohs if they wanted to go there. Id. It is

undisputed that defendants lacked probable cause to

arrest the Kohs at home. App. 57a.

After police arrived at the police department with

the Kohs at around 4 a.m., they separated the Kohs.

App. 3a. Mrs. Koh was allowed to wash the blood

from her hands in a restroom while officers watched

her. Id. Police made Mr. Koh wait three and a half

hours before interrogating him. App. 3a, 32a. During

that time, Koh was not allowed to: (1) call his lawyer;

(2) see the station chaplain; (3) make a phone call;

(4) see his pastor, relatives or friends—all of whom

arrived at the police department; or (5) see a

4

Northbrook social worker who had arrived to assist.

Id; D.315 ¶¶ 7, 10–13, 24.

D. Petitioners Interrogate Koh

Starting around 7:30 a.m., petitioners began the

first of two interrogations of Koh that lasted a

combined total of 2.5 hours. App. 4a.

Notwithstanding an Illinois law requiring law

enforcement to record the entirety of homicide

interrogations, Graf conducted part of Koh’s

interrogation before the recording started and

continued the interrogation after the tape ran out.

Id. As set forth below, throughout Koh’s

interrogations, petitioners engaged in numerous

coercive tactics to extract a confession from Koh in

violation of his constitutional rights.

1. Petitioners Exploited Koh’s Mental and

Physical Vulnerabilities. Throughout Koh’s

interrogation, he was in an extremely vulnerable

mental and physical state as a result of the shock

and trauma from his son’s gruesome death. D.315 ¶¶

4, 29, 30-31. Indeed, Koh exhibited clear signs of

distress. Id. at 67a. He was exhausted and freezing.

Id. He repeatedly hit himself on the head and chest.

Id. He hunched over and stared blankly. Id. at 67a,

68a. While petitioners denied Koh access to an

attorney, see SOC § II(D)(3) infra, when they finally

allowed an attorney into the room, the attorney

found Koh disoriented, disheveled, and exhausted.

Id. at 67a & n.30. Petitioners compounded Koh’s

shock and trauma by: (1) holding him in isolation for

more than nine hours; (2) interrogating him

knowing he had not eaten and only had minimal

sleep; and (3) denying him needed medications for

5

diabetes,

high

blood

pressure,

and

hyperammonemia until the interrogation was over.

App. 4a, 35a & n.8, 66a-67a.

Knowing Koh was in no position to be

interrogated, petitioners knowingly exploited his

vulnerabilities. Indeed, on the way to court after the

interrogation, Graf warned Koh not to mention his

physical ailments to the judge, saying, “If you say in

the presence of the judge that you are either sick or

dizzy, then we will take a week or even two to []

investigate you, so don’t do that.” Id. at 78a.

The district court found that petitioners were

well aware of Koh’s physical and psychological

vulnerabilities and intentionally exploited them

with aggressive tactics. Id. at 77a-78a. The court

concluded that “these facts and circumstances show

that Detective Graf was intent on coercing a

confession out of Koh.” Id. at p.79a.

2. Petitioners Exploited the Language

Barrier. In addition to the above-described factors

rendering Koh highly susceptible to coercive

interrogation, there also existed an obvious

language barrier. App. 3a, 16a, 17a, 33a, 66a. As

Koh was a native Korean speaker, he had a limited

ability to speak, understand, or read English,

making an interpreter necessary. Id. While

Northbrook police department staff recommended

Language Line, a service that provided trained

interpreters, petitioners demanded a police officer.

Id. at 3a & n.3. They called non-petitioning

defendant Sung Phil Kim to provide Koreanlanguage interpretation. Id. at 3a.

6

Petitioners have acknowledged that Koh could

not communicate in English, App. 17a, 67a-68a, 77a,

and the district court cited dozens of examples from

the interrogation which showed Koh did not

understand what was going on. E.g., id. at 67a-68a

(Koh describing what happened the morning before

in response to a question about the type of person

Paul was); id. (Koh discussing tools he kept for his

business in response to questions about whether he

saw a weapon); id. (Koh answering “yeah” when

asked whether God would want him to lie).

Petitioners exploited the barrier to extract

incriminating statements from Koh. Id. at 67a-70a.

For instance, throughout, Graf questioned Koh in

English. Id. at 36a. He did not leave time between

questions for Koh to understand the question or for

Kim to translate. Id. at 40a. He abruptly switched

topics, causing even greater confusion. Id. at 68a;

77a-79a & n.37 (at a key moment, Graf asserted that

Koh was admitting to killing Paul in self-defense,

when in fact Koh was talking about an entirely

different interaction with Paul). Based on these

facts, the district court held that “[a] reasonable jury

could conclude that Graf knew that he was

pressuring Koh to agree with statements that he did

not fully understand.” Id. at 77a-78a.

Further, during the interrogation, Kim

mistranslated or did not translate at all. App. 70a.

For example, when Koh used the Korean idiom,

gachi jooka, Kim translated it literally as “let’s die

together,” without explaining that the idiom was the

equivalent of the English phrase, “you’re killing me”

and should not have been taken literally. Id. at 9a;

7

77a-78a. Petitioners considered Koh’s use of the

phrase an important indication of guilt. D.315 ¶ 117.

Also, Kim improperly interjected his own

questions into the interview. Id. at 77a-78a. As a

result, at times, Kim and Graf asked overlapping

questions, making it unclear to which question Koh

was responding. Id. For instance, at one point, Graf

repeatedly asked Koh whether Paul had attacked

Koh with a knife in an effort to get Koh to admit he

killed Paul in self-defense. D.315 ¶¶ 119–120. At the

same time, Kim interjected his own question in

Korean, which had nothing to do with Koh killing

Paul. When Koh responded with a single affirmative

answer, Kim proclaimed suddenly that Koh had

admitted to killing Paul in self-defense, even though

he had not. D.315 ¶ 119; D.308-73 at 5–6. Again,

petitioners considered this an important admission.

D.315 ¶ 120.

3. Koh Was Not Allowed to Contact His

Attorney. At the start of the first part of the

interrogation, Graf asked Koh if he had a lawyer.

Koh responded that he did, but he did not know the

attorney’s phone number. App. 4a-5a. Koh then

asked to speak to his pastor, daughter, or church

friend. Id. Graf denied the request, stating that Koh

could only speak to his attorney. Id. Not knowing his

attorney’s phone number and unable to contact

anyone else, Koh was denied access to counsel. Id.

4. Petitioners Did Not Give Koh Miranda

Warnings. Petitioners did not give Koh complete or

accurate Miranda warnings. Graf initially

administered Miranda warnings in English. Id. at

5a. Koh asked Kim to “transfer” the warnings,

8

indicating that he did not understand what Graf was

saying. Id. Kim, however, did not translate the

warnings or their substance. Id. at 5a-6a. In fact,

Kim told Koh that he did not need an attorney and

failed to tell Koh that his statements could be used

against him. D.315 ¶ 105; App. 5a-6a. The Seventh

Circuit found that the parties hotly disputed “the

accuracy of Kim’s translation and whether Koh

understood it.” Id. at 6a.

Once Graf finished Mirandizing Koh in English,

he passed Koh a Miranda waiver form printed in

English and asked Koh to sign and date it. Id.

Instead, Koh began to write the time that Mrs. Koh

had discovered Paul’s body, prompting Graf to stop

and correct him. Id. at 19a.

Based on these facts, both the circuit and district

courts held that Koh did not understand the

Miranda warnings or the waiver. Id. (“As the district

court described it in its summary judgment opinion,

‘Koh ultimately executed an English-language

Miranda waiver form at Graf’s and Kim’s

directions.’”).

5. Koh Truthfully Denied Killing His Son.

Throughout the first part of the interrogation, Koh

repeatedly and truthfully denied any involvement in

Paul’s death. Id. at 6a. To the extent that Koh ever

confessed, it was only after petitioners overbore his

will during the second part of the interrogation.

6. Petitioners’ Scheme to Get Koh to

Confess. After the first interrogation, petitioners

held Koh in isolation for three hours. While in

isolation, Koh was not allowed to place a phone call

or speak to his family members who had gathered at

9

the station. D.315 ¶¶ 23-25, 114. During that time,

petitioners met with their superiors and the team

investigating Paul’s death. App. 8a, 37a-38a.

Petitioners stated that they believed Koh was being

evasive. Id. at 37a-38a. One of petitioners’ superiors

then instructed them to press Koh harder. Id.; App.

8a.

7. Petitioners Coerced Koh’s False

Confession. Determined to extract a confession

from Koh during the second part of the

interrogation, petitioners took a more aggressive

and coercive approach. App. 38a-42a, 65a-88a.

Before the second part of the interrogation even

began, Kim pressured Koh to confess and falsely told

him that Mrs. Koh accused him of murdering their

son. App. 37a; D.309 ¶ 44. She had not. Id.

Koh initially repeated his truthful account of

events, but petitioners refused to accept his denials.

Id. at 39a, 70a-73a. Instead, they employed

psychological and physical intimidation and implied

threats of violence to coerce his confession. For

instance, Graf threatened that his questioning

would continue until Koh confessed to murder. App.

9a, D.315 ¶ 27. Further, Graf exploited Koh’s devout

religious beliefs, saying that God would judge Koh

for lying. Id. at 68a, 72a.

As Koh’s truthful denials continued, Graf raised

his voice and yelled at Koh. Id. at 39a. Graf got

within inches of Koh’s face as the questioning

intensified, and he repeatedly touched Koh in an

unwarranted and unwanted manner. Id. at 9a, 39a.

At the same time, Kim kept his gun visible. Id. at

72a. The district court concluded that a jury could

10

view this behavior as an implied threat of physical

violence. Id. at 77a.

In addition, petitioners fed Koh all of the facts of

the supposed crime that they wanted him to adopt.

Id. at 39a-40a. Indeed, the district court found that

petitioners provided Koh with every incriminating

fact he supposedly adopted. Id. at 76a.

Graf also threatened to continue the interview

until Koh adopted petitioners’ story. Graf told Koh

that the interrogation would continue “for days and

days and days” if Koh did not tell “the truth.” Id. at

21a, 76a. As the district court put it, given Graf’s

refusal to accept Koh’s avowals to that point, “Koh

would have understood ‘the truth’ to mean ‘what

Graf wanted to hear.’” Id. at 76a. Thus, petitioners

communicated that the only way for Koh to end the

interview was to confess. This pressure to confess

was heightened by the false choice petitioners

presented: Koh could either adopt their false story,

which at least minimized guilt by suggesting selfdefense, or petitioners would continue to investigate

Koh for murdering Paul in a violent rage. Id. at 70a;

D.311 ¶ 95.

Finally, petitioners falsely told Koh they had

other evidence implicating him in the murder. App.

33a-34a, 36a, 70a-72a, 87a-88a. Both Graf and Kim

informed Koh that his wife had implicated him, but

she had not. Id. at 70a-72a. Graf also falsely implied

that physical evidence and witness interviews

implicated Koh. Id. Based on all of these facts, the

district court concluded that petitioners crossed the

line from being permissibly misleading to

improperly coercing an involuntary confession by,

11

among other means, badgering, pressuring, lying to,

and manipulating Koh. Id. at 72-73a & n.34.

8. Petitioners Barred Koh’s Attorney from

the Interrogation Room. Although petitioners

prevented Koh from calling his attorney, id. at 3a,

Koh’s family and friends were able to contact Koh’s

attorney, and he immediately headed to the police

department. Id. at 41a & n.13; D.315 ¶¶ 25, 40–43.

When Koh’s lawyer arrived, the non-petitioning

defendant officers made him wait twenty minutes

while the interrogation continued. Id. at 41a & n.13.

About three minutes before the second part of the

interrogation concluded, Graf stepped out of the

room to talk with another officer, who told him that

Koh’s attorney was at the station and they needed to

let him in the room. Id. at 41a. Graf reported that,

in his view, Koh was confessing. Id. Graf then

returned to the interrogation room where he ramped

up the coercive tactics. Id. at 72a-73a. Graf asked

quick, successive, leading questions, leaving no time

for translation, and telling Koh, “Hyung Seok, come

on. Right now, let’s be done, hurry up, fast!” Id. at

72a-73a. Two minutes later, and more than a half

hour after he had arrived, Koh’s attorney was finally

allowed access to Koh and immediately terminated

the interrogation. Id. at 42a.

9. His Will Overborne, Koh Made

Incriminating Statements. Before Koh’s attorney

terminated the interrogation, Koh purportedly

assented to several incriminating statements. Id. at

40a-41a & n.14. However, after evaluating the

entire record, the district court concluded that Koh’s

false incriminating statements—all of which

12

originated from petitioners—were the product of

coercion and an overborne will. Id. at 65a-79a.

E. Criminal Proceedings Against Koh

Solely based on Koh’s “confession,” he was

charged with murder in state court. App. 11a. Koh

was subsequently detained for nearly four years on

$5 million bond. At trial, Jenner & Block

represented him pro bono. A jury acquitted Koh after

deliberating for just two hours, including lunch. Id.

III. PROCEEDINGS BELOW

A. The Kohs’ Claims

The Kohs brought claims pursuant to 42 U.S.C. §

1983 against eight Northbrook police officers—two

of whom are petitioners here—the Village of

Northbrook, Officer Kim, and the Village of

Wheeling (Kim’s employer). They asserted a variety

of federal constitutional claims, including: (a) a

Fourth Amendment claim for false arrest; and (b)

Fifth and Fourteenth Amendment claims arising out

of Koh’s illegally coerced confession. They also

brought claims for failure to intervene and

conspiracy, as well as a Monell claim against the

Village of Northbrook. Finally, the Kohs asserted

state law claims for malicious prosecution,

intentional infliction of emotional distress, and loss

of consortium.

B. The District Court’s Decision

The defendants moved for summary judgment,

claiming qualified immunity. The district court

denied the motions in part and granted them in part.

As relevant here, the district court found that

numerous genuine disputes of material fact

13

precluded summary judgment on Koh’s Fifth and

Fourteenth Amendment coerced confession claims.

After discussing in detail all of the evidence of

Koh’s vulnerabilities and petitioners’ illegal tactics,

and examining those factors in light of longestablished law, the court wrote in summation:

A reasonable officer would have known that

verbally and physically intimidating a

suspect, as well as manipulating him, lying to

him, and coaching him on the details of the

confession, all while knowing he was not

fluent in English and was operating without

food, medications, or sleep, violates the Fifth

Amendment. And a reasonable officer

assigned to interpret for that suspect would

have recognized that manipulating his

deficient

understanding

of

English,

mistranslating the Miranda warnings, and

altogether refusing to provide translation

assistance, likewise violates the Constitution.

App. 75a-76a. The district court also determined

that a trial was required on the Kohs’ Fourth

Amendment false arrest claims (with some

limitations), conspiracy and failure to intervene

claims (with some limitations), municipal liability

claim against Northbrook, and Mrs. Koh’s loss of

consortium claims.

Invoking

the

collateral-order

doctrine,

petitioners and defendant Kim appealed the

summary-judgment order, but only as it concerned

Koh’s Fifth and Fourteenth Amendment claim. All

of the other claims against these and all other

defendants remained pending for trial in the district

14

court. On appeal, petitioners and Kim disputed or

ignored numerous facts found by the district court,

including:

•

Petitioners disputed that Paul’s death was a

suicide. Compare Pet. C.A. Br. 4–6, 12 with

App. 87a.

•

Petitioners disputed that the Kohs were

immediately arrested without probable cause.

Compare Pet. C.A. Br. 4–6, with D.279 at 516.

•

Petitioners disputed that they separated the

Kohs at the police department. Compare Pet.

C.A. Br. 5, with App. 31a.

•

Petitioners ignored that they held the Kohs

incommunicado for hours, without a phone

call or contact with family or friends. See 32a.

•

Petitioners ignored virtually all discussion of

Koh’s

known

physical

and

mental

vulnerabilities, such as the fact that he was in

shock and traumatized, had not eaten, had

barely slept, and had been denied needed

medications. See 66a-67a; Compare Pet. C.A.

Br. 7 & n.8, with App. 35a, 66a-67a.

•

Petitioners largely ignored Koh’s language

barrier. See 68a; Pet. C.A. Br. 7, 8-11, 13-20;

Kim C.A. Br. 9–11.

•

Petitioners ignored that they initially denied

Koh access to his counsel and, later, made his

attorney wait while they continued

interrogating Koh. See 32a; Pet. C.A. Br. 18–

19; see 42a.

15

•

Petitioners omitted that they threatened to

interrogate Koh until he confessed. See 37a;

87a.

•

Petitioners disputed that: (1) they failed to

properly Mirandize Koh; (2)Koh did not

understand the warnings; and (3) Koh did not

voluntarily waive his Miranda rights. Pet.

C.A. Br. 7–8; Kim C.A. Br. 9.

•

Petitioners disputed that they had no basis to

suspect Koh of murder and that his truthful

explanations were credible and corroborated.

See 36a, 37a, 72a; Pet. C.A. Br. 8–11.

•

Petitioners disputed their use of psychological

and physical intimidation during the

interrogation, and their exploitation of Koh’s

mental and physical vulnerabilities. See Pet.

C.A. Br. 15–16 & nn.12&13, 19; 75a-76a.

•

Petitioners disputed that their lies crossed

the line from misleading to outright coercion.

Pet. C.A. Br. 16; see 72a & n.34.

•

Petitioners ignored that they improperly

applied the Reid technique on a suspect not

known to be guilty. Pet. C.A. Br. 6, 14, 16 &

n.14, 19–20; see 37a; 39a, 87a.

•

Petitioners ignored that they fed Koh the facts

of the crime, falsely making it appear as

though Koh spontaneously confessed. Pet.

C.A. Br. 17–18; see 39a, 40a, 72a, 73a.

•

Petitioners reiterated the findings of a Cook

County judge as if they were uncontested

issues in the appeal, Pet. C.A. Br. 20–21; Kim

C.A. Br. 11, when in fact they were all

16

contested, and the district court found them

to be, see 79a & n.38.

C. The Seventh Circuit’s Decision

A unanimous panel of the Seventh Circuit ruled

that under Johnson v. Jones, 515 U.S. 304 (1995), it

lacked jurisdiction to consider petitioners’ and Kim’s

factual challenges to the district court’s conclusion

that the record presented material disputes of fact

for trial. App. 25a. The circuit court found that

petitioners and Kim were not asking the court to

decide the appeal based on Koh’s version of the facts,

but instead were disputing and ignoring key facts

that the district court had relied upon to deny

summary judgment on Koh’s Fifth and Fourteenth

Amendment claim. App. 15a-21a. Indeed, the

Seventh Circuit identified at least ten disputes of

fact on central issues necessary to resolve Koh’s

Fifth and Fourteenth Amendment claims, including:

•

Whether petitioners allowed Koh to call his

lawyer. App. 4a.

•

The extent and effect of the language barrier.

Id. at 18a. (holding that Petitioners’

“characterization of Mr. Koh’s language

problem as a ‘limited English language

proficiency’ overcome by the presence of an

interpreter, rather than accepting the district

court’s conclusions concerning Koh’s lack of

understanding, precludes our jurisdiction.”).

•

Whether Kim accurately translated the

Miranda warnings Graf administered to Koh

in English, and whether Mr. Koh understood

the warnings. Id. at 5a-6a; 18a-20a.

17

•

Whether Koh agreed at the beginning of the

second part of the interrogation that he was

advised of his rights and understood. Id. at

20a (noting that petitioners were disputing

the district court’s conclusion regarding Koh’s

lack of understanding due to the language

barrier and recognizing that petitioners’

characterization of the facts “presuppose[d]

that Mr. Koh understood his rights in the first

instance.”).

•

Whether Koh lacked sleep and was denied

access to his needed medications. Id. at 20a21a.

•

Whether petitioners threatened Mr. Koh

during the interrogation. Id. at 21a.

Given the numerous factual disputes, the court of

appeals dismissed the appeals for lack of

jurisdiction. Id. at 25a.

Kim has not petitioned for certiorari. Pet. ii.

None of the claims against him are currently before

this Court. Id. Nor are any of the other

constitutional claims against any of the defendants.

Id.; App. 2a. Moreover, petitioners Ustich and Graf

have informed the district court that they do not

intend to seek a stay of the Seventh Circuit’s

decision dismissing their claims. D.426. Accordingly,

regardless of the outcome of this petition, all claims

against all parties in this litigation will go to trial in

the district court on April 6, 2020.

18

SUMMARY OF ARGUMENT

The Court should deny the petition for numerous

reasons. First, this case presents an exceptionally

poor vehicle for adjudicating any of the several

issues raised by the petition for certiorari. The

numerous questions presented in the petition have

nothing to do with each other, meaning this Court

would have to resolve each and every issue on behalf

of petitioners. Notably, even if the Court resolved all

issues in petitioners’ favor, this case will still

proceed to trial in April.

Additionally, the petition asks this Court to

resolve messy factual disputes and wade into a

voluminous summary judgment record to assess

which evidence is entitled to credit. Factual disputes

like the ones presented here are the primary reason

this Court has limited qualified immunity appeals to

questions of law.

Second, the petitioners allege that certiorari is

necessary to remedy purported “circuit disarray”

over competing interpretations of Johnson v. Jones,

515 U.S. 304 (1995). But no such disarray exists.

Johnson limited appellate jurisdiction in qualifiedimmunity appeals to purely legal questions, and it

made clear that appellate courts lack jurisdiction to

second guess a district court’s finding that there is

sufficient evidence in the summary judgment record

for a trial. Id. at 313. Accordingly, the Seventh

Circuit correctly held that it lacked jurisdiction to

decide petitioners’ interlocutory appeal.

Third, the Court should deny the petition

because the court of appeals has not addressed the

merits of petitioners’ qualified-immunity defense. At

19

best, this Court should remand. To the extent that

the Court is inclined to consider the merits of the

underlying appeal and resolve the thirty or more

factual disputes, it should conclude that the district

court’s decision was correct.

At bottom, petitioners’ attempts to conjure

questions of law out of run-of-the-mill factual

disputes are not a basis for certiorari. This Court has

recently rejected five petitions for certiorari in which

the petitioners, as here, attempted to disguise an

interlocutory appeal of a fact-based qualifiedimmunity defense by framing it as a legal dispute.

See Burningham v. Raines, 139 S. Ct. 787 (2019);

Wise v. Hurt; 139 S. Ct. 412 (2018); Peterson v.

Franklin, 139 S. Ct. 411 (2018); Gauger v. Stinson,

138 S. Ct. 1325 (2018); Herriman v. Kindle, 136 S.

Ct. 1657 (2016). This petition should meet the same

fate.

ARGUMENT

I. THIS

CASE

PRESENTS

AN

EXCEPTIONALLY POOR VEHICLE

FOR

CONSIDERING

THE

QUESTIONS PRESENTED IN THE

PETITION

This case is a poor vehicle for examining any of

the issues raised in the petition. The number of

issues in the questions presented, the assorted areas

of the law implicated by those questions, and the

reality that this Court would have to resolve every

one of those issues in order to fully resolve this

appeal, weigh strongly against granting certiorari in

this case. The fact that this case is headed to trial

20

regardless of any decision by this Court underscores

this conclusion.

A. The

Petition

Distinct Issues

Presents

Numerous,

The petition presents questions about a dozen

distinct issues spanning the scope of appellate

jurisdiction; the proper interpretation of Federal

Rule of Civil Procedure 56; and the types of evidence

a court can consider at summary judgment. The

questions presented also span the contours of a

variety of distinct areas of federal constitutional law

including interlocutory appeals, qualified immunity,

Fifth Amendment law, direct and circumstantial

evidence, factual inferences, causation, issue

preclusion, and the relationship between causation

and issue preclusion and the qualified immunity

inquiry. Given the number and complexity of issues

raised, this case is a poor vehicle for examining any

of the issues raised in the petition.

B. Because the Issues Are Independent of

Each Other, the Court Would Have to

Resolve Each Distinct Issue

What’s more, the questions presented are

entirely independent of one another, meaning that

resolution of one does not bear in any way on the

others. Take, for example, petitioners’ third question

presented, which is actually two questions: (1)

whether a state judge’s decision not to suppress the

coerced confession supersedes to break the chain of

causation between their wrongful acts and the harm

suffered; and (2) if the state judge’s decision was a

superseding event, would the petitioners be entitled

to qualified immunity. Pet. i. Even if the Court were

21

to determine the former in favor of petitioners, it

would still have to determine whether that fact

entitled petitioners to qualified immunity. Finally,

even if the Court were to find for the petitioners with

respect to the above-described issues, those issues

have nothing to do with the myriad other unrelated

issues raised by petitioners, such as the scope of

appellate jurisdiction under Johnson; whether the

district court may rely on factual inferences in

deciding summary judgment; and whether

petitioners plainly violated long-established Fifth

Amendment law.

Because many of the issues are not outcome

determinative, resolution of each and every one of

the dozen issues would be necessary to fully resolve

the appeal. This Court’s resources are not well

deployed in adjudicating unrelated issues that are

merely academic and will not make any difference in

this case.

C. Resolving Each and Every Issue in the

Petition Will Not Resolve This Case,

Which Is Set for Trial in April 2020

None of the questions presented in the petition

will fully resolve this already decade-old case. This

is an interlocutory appeal of only one claim at

summary judgment—Koh’s Fifth Amendment

coerced-confession

claim—against

only

two

defendants—petitioners Graf and Ustich. None of

the claims against Defendant Kim, who also

appealed the district court’s summary-judgment

decision, will be resolved by this petition. Similarly,

none of the Kohs’ claims against the other

defendants will be resolved by the petition—e.g., the

22

Kohs’ Fourth Amendment false-arrest claims

(except against Kim); the Kohs’ conspiracy and

failure-to-intervene claims; their Monell claims;

Mrs. Koh’s loss-of-consortium claim; and the

respondeat superior and indemnification theories.

Thus, this case will go forward to trial regardless of

the outcome of this petition.

Based on the above, if this Court were to grant

the petition, it would find itself confronted with the

same problems it sought to avoid when it decided

Johnson—i.e., regardless of the result, the Court

will be “faced with approximately the same factual

issue again, after trial, with just enough change

brought about by the trial testimony [ ] to require it,

once again, to canvass the record.” Johnson, 515

U.S. at 316-17. There is no reason why petitioners

cannot raise these issues after judgment in order to

avoid two cumbersome reviews of the record by

appellate courts with overloaded dockets. See

Behrens v. Pelletier, 516 U.S. 299, 322, (1996)

(Breyer and Stevens, JJ. dissenting) (recognizing

interlocutory appeals “threaten[] busy appellate

courts with added numbers of essentially similar, if

not repetitive, appeals, at a time when overloaded

dockets threaten the federal appellate system.”).

D. The Petition’s Fact-Bound Challenges

Make This a Poor Case to Consider the

Numerous, Distinct Issues

Compounding the number and complexity of

issues raised; the need to resolve each and every

issue; and the fact that resolving all the issues would

be merely academic, are the intense factual disputes

underlying the inherently fact-bound questions

23

presented. As mentioned above, the district court

performed an exhaustive review of the record and

issued an extraordinarily detailed opinion, granting

summary judgment on some claims and denying it

on others. The court devoted 30 pages to explaining

the material disputes of fact that precluded qualified

immunity on Koh’s Fifth Amendment claim at the

summary-judgment stage. App. 65-95a.

For its part, the Seventh Circuit also reviewed

the record evidence and identified numerous

disputes of fact on central issues necessary to resolve

Koh’s claims. All told, the district and circuit courts

identified at least thirty factual disputes, see SOC

§§ III(B)-(C), supra.

Ultimately, consideration by the Court of these

numerous factual issues would lead to the

conclusion that there are, at best, many factual

disputes for trial. See Hurt v. Wise, 880 F.3d 831, 847

(7th Cir. 2018) (“[W]hen an interrogation is infected

with numerous problems, a full trial may be

necessary before a final characterization of the

process is possible.”). It is not a wise use of the

Court’s resources to conduct an extensive fact-bound

inquiry in a case going to trial. For this reason as

well, the petition should be denied.

24

II.

THE

SEVENTH

CIRCUIT’S

DISMISSAL OF THE APPEAL FOR

LACK OF JURISDICTION IS A

STRAIGHT-FORWARD

APPLICATION OF THIS COURT’S

PRECEDENT

A. This Court’s Cases Establish that

Qualified-Immunity Appeals Falling

Within the Collateral Order Doctrine

Are Limited to Purely Legal Questions

The collateral-order doctrine is a limited

exception to the final judgment rule that permits

appeals of non-final orders that: (1) conclusively

determine a disputed question; (2) resolve an issue

separate from the merits; and (3) are effectively

unreviewable at final judgment. Cohen v. Beneficial

Loan Corp., 337 U.S. 542, 546 (1949); Digital

Equipment Corp. v. Desktop Direct, 511 U.S. 863,

867–68 (1994). In Mitchell v. Forsyth, this Court

extended this doctrine to denials of immunity at

summary judgment. 472 U.S. 511, 525–30 (1985).

Such denials can sometimes be appealed, but “the

Cohen framework breaks down if there is no

separation between the merits of the underlying

lawsuit and the subject matter of the collateral order

being appealed.” Jones v. Clark, 630 F.3d 677, 679

(2011). “The problem, as the [Supreme] Court has

recognized, is that a great number of orders denying

qualified immunity at the pretrial stage are linked

closely to the merits of the plaintiff’s claim.” Id.

In response to this “problem,” the Court in

Johnson drew a strict line: jurisdiction in qualifiedimmunity appeals is limited to “abstract issues of

25

law,” 515 U.S. at 317, i.e.—no jurisdiction exists for

qualified immunity appeals that seek review of a

district court’s sufficiency of the evidence

determination. Id. at 319-20.

In reaching this holding, the Court in Johnson

carefully considered the competing underlying

principles of the final order doctrine and immunity

for public officials. Id. The Court provided three

reasons for its ruling. First, the Court’s holding in

Mitchell extended the collateral order doctrine to

cover qualified immunity only in those limited

circumstances where an appeal presents a purely

legal question. Id. at 313.

Second,

the

immediate

appealability

requirement set forth in Cohen necessitated that the

issue on appeal be separate from the merits, and the

holding in Mitchell “rested upon the view that ‘a

claim of immunity is conceptually distinct from the

merits of the plaintiff’s claim.’” Id. at 514 (quoting in

part, Mitchell, 472 U.S. at 527). By contrast, where:

a defendant simply wants to appeal a district

court’s determination that the evidence is

sufficient to permit a particular finding of fact

after trial, it will often prove difficult to find

any such “separate” question—one that is

significantly different from the fact-related

legal issues that likely underlie the plaintiff’s

claim on the merits.

515 U.S. at 314. The Court in Johnson correctly

observed that to take what the petitioners there

described as a “small step” to expand jurisdiction to

include sufficiency of the evidence appeals, would

not be so small. Instead, such an expansion would

26

“do more than relax the separability requirement—

it would in many cases simply abandon it.” 515 U.S.

315. Finally, the Court in Johnson balanced the

competing considerations of “avoiding the cost and

expense of piecemeal review on the one hand and the

danger of denying justice by delay on the other,” and

concluded that “immunity appeals interfere less

with the final judgment rule if they [are] limited to

cases presenting neat abstract issues of law.” 515

U.S. at 318.

The Court reaffirmed Johnson during its next

term. See Behrens, 516 U.S. at 313. Johnson has not

been undermined or abrogated in any of the Court’s

subsequent decisions. 2

B. No Circuit Split Exists About the

Jurisdictional Limits Set Out in Johnson

Contrary to petitioners’ contention, there is no

split among the circuits about the clear limits that

Johnson places on appellate jurisdiction. 3 Nor is

2

Johnson has not been undermined by this Court’s

subsequent decision in Plumhoff v. Rickard, 134 S. Ct. 2012

(2014), as petitioners argue, see Pet. 17-18. To the contrary,

Plumhoff re-affirmed that reviewing the sufficiency of the

evidence is not a legal issue; that doing so is often intertwined

with determinations a trial court makes later in a case; and

that appellate courts have “no comparative expertise” to review

the sufficiency of the evidence. 134 S. Ct. at 2019 (citing

Johnson, 515 U.S. at 309-10 & 314).

3

Petitioners fail to address the Seventh Circuit’s en banc

opinion in Stinson v. Gauger, 868 F.3d 516 (2015), which noted

that “[n]o Supreme Court decision has criticized Johnson; to

27

there circuit “disarray” over the application of

Johnson—that notion is an invention of the

petitioners’ making. Indeed, no court has adopted

the petitioners’ proposed extension of appellate

jurisdiction to review a district court’s inferential

finding of facts.

Rather, all appellate courts reviewing qualified

immunity appeals in Johnson’s wake have applied

its law-fact jurisdictional divide without deviation.

See, e.g., Walton v. Powell, 821 F.3d 1204, 1208-1210

(10th Cir. 2016) (Gorsuch, J.) (holding that circuit

court had jurisdiction under Johnson to reach the

legal argument that plaintiff’s version of the facts

was insufficient to state a claim under the First

Amendment, reasoning that, although it could not

resolve a factual dispute, it did have jurisdiction to

assess whether the facts assumed by the district

court—viewed in favor of the plaintiff—”fall in or out

of legal bounds.”); Mallak v. City of Baxter, 823 F.3d

441, 446 (8th Cir. 2016) (Scott and Plumhoff did not

alter jurisdictional holding that no appellate

the contrary, the Court continues to rely on it post-Harris.” Id.

at 524 (citing Plumhoff, 134 S. Ct. at 2018–19; Ashcroft v.

Iqbal, 556 U.S. at 671, 673–74; Ortiz v. Jordan, 562 U.S. 180,

188–91 (2011)); see also Ortiz, 562 U.S. at 190 (describing

qualified immunity appeals that raise legal issues as those that

“typically involve contests not about what occurred, or why an

action was taken or omitted, but disputes about the substance

and clarity of pre-existing law” (citing Behrens, 516 U.S. at 313

and Johnson, 515 U.S. at 317)). “Nor has the Court disavowed

its pre-Harris reliance on Johnson in multiple cases.” Stinson,

868 F.3d at 524 (citing Behrens, 516 U.S. at 312-13; Johnson v.

Fankell, 520 U.S. 911, 922 (1997); Crawford-El v. Britton, 523

U.S. 574, 595, 597 n.18 (1998); Richardson v. McKnight, 521

U.S. 399, 402 (1997)).

28

jurisdiction exists to review the sufficiency of the

evidence in case where defendants argued record

lacked evidence of improper motive); Penn v.

Escorsio, 764 F.3d 102, 106 & n.2 (1st Cir. 2014);

George v. Morris, 736 F.3d 829, 835 (9th Cir. 2013)

(rejecting the argument that Scott altered Johnson

and its progeny on scope of appellate jurisdiction);

Via v. LaGrand, 469 F.3d 618, 624 (7th Cir. 2006);

Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)

(en banc); Ziccardi v. City of Philadelphia, 288 F.3d

57, 62 (3d Cir. 2002) (rejecting the argument that

Johnson did not apply to disputes about intent as

opposed to conduct and holding that Johnson’s

jurisdictional boundary “clearly appl[ies] to factual

disputes about intent, as well as conduct.”); Koch v.

Rugg, 221 F.3d 1283, 1297 (11th Cir. 2000)

(interpreting Johnson and Behrens to find no

jurisdiction over appeal in racial discrimination case

where defendants’ appeal was sufficiency of the

evidence in the record to infer discriminatory intent

“which is prototypically a factual determination

derived from circumstantial evidence by the trier of

fact”). 4

4

Petitioners point to a purported “narrow” interpretation

of Johnson. Pet. 14. None of the authorities petitioners cite has

adopted such an interpretation. In fact, the cases applied the

straightforward application of Johnson in which appellate

courts review only legal issues, and in doing so, rely on the facts

the district court credited and reasonable inferences derived

therefrom. Id. at 21-22. While the court in Winfield v. Bass, 106

F.3d 525 (4th Cir. 1997), reviewed the underlying factual

29

In sum, the appellate courts are not confused on

this issue. For this reason, the Court should deny the

petition.

C. The Seventh Circuit Correctly Held that

It Lacked Jurisdiction to Decide

Petitioners’ Interlocutory Appeal

In dismissing the appeal, the circuit court

properly relied on this Court’s rulings and

uncontroverted

constitutional

principles

to

determine that it lacked jurisdiction. App. 25a. The

court correctly held that the numerous factual

disputes

precluded

jurisdiction

under

a

straightforward application of Johnson. Id.

Moreover, the court correctly determined that

before it could answer the “abstract issue[] of law”

allowed on interlocutory appeal—i.e., “whether the

legal norms allegedly violated by the defendant were

clearly established at the time of the challenged

record, that case is inapplicable here. In Winfield, unlike here,

the district court failed to identify the facts on which its

qualified immunity decision was based. Id. at 533. Finally, the

single concurrence in Romo v. Largen, 723 F.3d 670 (6th Cir.

2013), relied on by petitioners, has been rejected repeatedly by

the Sixth Circuit, including the Romo majority, see id. at 675;

DiLuzio v. Vill. of Yorkville, Ohio, 796 F.3d 604, 609 (2015),

Kindl v. City of Berkley, 793 F.3d 391 (2015), Hopper v.

Plummer, 887 F.3d 744, 757 (2018), and the Seventh Circuit,

see Hurt v. Wise, 880 F.3d 831, 839, cert. denied, 139 S. Ct. 412

, and cert. denied sub nom. Vantlin v. Hurt, 139 S. Ct. 412

(2018) (rejecting the defendants’ argument to “revisit the

inferences that the district court found could reasonably be

drawn from [the plaintiffs’] recorded interrogation” because to

do would go “beyond our jurisdiction on this interlocutory

appeal.”).

30

actions,” Johnson, 515 U.S. at 312, 317—it first

would have had to resolve multiple factual disputes.

Id. at 16a-21a. The court correctly held that it lacked

jurisdiction to engage in that exercise, which would

have required it to delve into the record, weigh

competing evidence, and decide in the first instance

heavily disputed facts. Id.

III. PETITIONERS’ SECOND AND THIRD

QUESTIONS PRESENTED ARE NOT

PROPERLY BEFORE THIS COURT

The petition’s second and third questions

presented concern whether, on the merits,

petitioners are entitled to qualified immunity. Pet. i,

26-33. The Seventh Circuit never considered these

issues because of its dismissal of the appeal on

jurisdictional grounds. Because this Court is “a court

of final review and not first view,” Zivotofsky v.

Clinton, 566 U.S. 189, 201 (2012) (quoting Adarand

Constructors, Inc. v. Mineta, 534 U.S. 103, 110

(2001)), the question of whether petitioners are

entitled to qualified immunity is not properly before

this Court. This Court should not consider the

merits of the officers’ qualified-immunity defense, if

at all, unless the circuit court rules on the merits in

the first instance. Accordingly, if this Court

determines there is a basis for the circuit court to

exercise jurisdiction, it should remand this matter

for further consideration.

To the extent that the Court were inclined to

resolve messy factual disputes and wade into the

voluminous summary-judgment record, it should

easily conclude that the district court correctly

determined that petitioners: (1) violated long-

31

established Fifth Amendment law; (2) were plainly

aware that Koh suffered pronounced mental and

physical deficits, including an inability to speak the

language of the interrogation and a denial of

essential medications; and (3) through the use of

myriad specific tactics, long held to be impermissibly

coercive, petitioners overbore Koh’s will and coerced

his false confession.

A.

The

District

Court

Correctly

Determined that Petitioners Used

Impermissible Tactics to Coerce a

Confession from Koh

The district court correctly found petitioners’

tactics—including exploiting Koh’s mental and

physical impairments caused by his inability to

comprehend English and his lack of sleep, needed

medications, and food; failing to advise him of his

Miranda rights, giving him false information about

those rights, and questioning him after he invoked

his right to counsel; keeping him in extended

isolation; feeding him facts of the crime they made

up; and categorically rejecting any answer unless it

was incriminating—were impermissible. App. 6595a. In addition, the district court correctly found

that petitioners’ multiple coercive threats to Koh—

including Kim’s display of his gun, Graf yelling at

Koh, Graf impermissibly touching Koh and

intimidating him by sitting just inches away, and

Graf’s explicit threat to keep interrogating Koh for

“days and days and days” —were tactics that plainly

violated clearly established constitutional rights, as

held in Howell v. United States, 442 F.2d 265, 272

32

(7th Cir. 1971) (citing Malloy v. Hogan, 378 U.S. 1,

7 (1964)). Id. at 76a-77a.

The petition does not point to any law that

suggests that these types of threats and coercion

were constitutionally permissible tactics to induce a

confession. Instead, such threats—considered alone

or in totality—can render a confession involuntary

under this Court’s precedents, as interpreted by the

circuits. See, e.g., Malloy v. Hogan, 378 U.S. at 7;

Arizona v. Fulminante, 499 U.S. 279, 287 (1991)

(credible threat of violence is coercion); Weidner v.

Thieret, 866 F.2d 958 (7th Cir. 1989) (implication of

future physical force is improper); Streetman v.

Lynaugh, 812 F.2d 950, 957 (5th Cir. 1987) (“police

threats to an accused or his family render a resulting

confession involuntary”).

Regardless, this case is not a good vehicle for

examining each and every tactic discussed by the

district court. 5 As described above, the district

court’s ruling rests on solid law, universally followed

by all circuits, establishing that officers must not

overbear the will of the suspect. The petition does

5

As the Seventh Circuit held, appellate courts lack

jurisdiction to consider arguments challenging a district court’s

conclusion that attacks one among many vulnerabilities or

tactics. See Jackson v. Curry, 888 F.3d 259, 265–66 (7th Cir.

2018) (“In sum, the district court did not conclude [appellants’]

comments regarding race, in a vacuum, violated a clearly

established right, but rather considered the totality of the

alleged circumstances. So even if in a vacuum the race

comments do not violate such a right, the district court

committed no error because it did not hold they did. As the

district court made no conclusion here raising a pure legal

issue regarding qualified immunity, we lack jurisdiction.”).

33

not present an opportunity to resolve a circuit split.

Instead, the petition is merely an invitation for the

Court to conduct a survey of fact-bound cases across

many circuits, without actually resolving the issues

presented in this case.

B. The District Court Correctly Determined

that Petitioners’ Impermissible Tactics

Violated Clearly Established Law

The district court properly applied the law from

this Court and the Seventh Circuit in adjudicating

qualified immunity on Koh’s coerced-confession

claim. Petitioners cite a number of cases that they

argue the district court failed to strictly follow, but

none are outcome determinative of this appeal.

Thus, even if petitioners were correct about the

district court misapplying the law—a nonstarter, as

described above—their concerns would be merely

academic and, thus, do not warrant this Court’s

review.

C. The Courts Below Correctly Determined

that Petitioners’ Causation Argument is

a Factual Question Unrelated to

Qualified Immunity

Petitioners concede that proximate cause is

generally a fact issue, and can only be a legal issue

where the facts are not in dispute. Pet. 30. But as

stated above, while petitioners pay lip service to

stipulating to facts, their petition, like their

arguments in the district and circuit courts, turns on

heavily disputed facts.

The Seventh Circuit was thus correct in

determining that it lacked jurisdiction to consider

superseding causation. The question of whether

34

third-party actors intervened to cause a violation of

Koh’s rights that was an unforeseeable result of

petitioners’ own misconduct is a question that: (a)

necessarily involves fact disputes; and (b) is

unrelated to the qualified-immunity question of

whether petitioners violated Koh’s clearly

established rights. Armstrong v. Daily, 786 F.3d 529,

537–38 (7th Cir. 2015); see also Ortiz, 562 U.S. at

188.

Neither court’s ruling that causation is a factual

question unrelated to qualified immunity warrants

a grant of certiorari, as both involved the proper and

consistent application of long-standing law.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

December 16, 2019

JON LOEVY

Counsel of Record

STEVEN ART

DANIELLE HAMILTON

SCOTT R. DRURY

LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

jon@loevy.com