Petition for Writ of Certiorari — Chavez v. Martinez

FILED

013

01444 4 MAR 26 2002

OFFICE OF THE CLERK S

In The

Supreme Court of the United States

BEN CHAVEZ,

Petitioner,

OLIVERIO MARTINEZ,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ALAN E. WISOTSKY

Counsel of Record

JEFFREY HELD

LAW OFFICES OF ALAN E. WISOTSKY

300 Esplanade Drive, Suite 1500

Oxnard, California 93030

(805) 278-0920

(805) 278-0289 (fax)

GARY L. GILLIG

300 West Third Street

Oxnard, California 93030

Attorneys for Petitioner

Bie

ee

i

QUESTIONS PRESENTED

1. Whether the Ninth Circuit panel correctly

characterized the Supreme Court’s Fifth Amendment

discussion in United States v. Verdugo-Urquidez, 494 U.S.

259 (1990), as non-binding dicta and thereby ignored its

holding favorable to petitioner.

2. Whether a violation of the Fifth Amendment,

potentially resulting in an award of civil damages, occurs

at the time of the purported coercive interview or only

when and if the state introduces the constitutionally

violative statement in a criminal proceeding.

3. | Whether the Ninth Circuit panel correctly held

that the conduct of this investigating officer was so

offensive as to deny him qualified immunity.

TABLE OF CONTENTS

Page

Questions Presented .......... aves eden eeene i

TERE CE COMME .w occ ccccccveccccssssuueneee ii

TERES CS CHASED... cc ccccccccessessueeeeseene ili

OO l

Basis for Jurisdiction in This Court ............... ]

Constitutional and Statutory Provisions Involved .... 2

Seatement of Gee Case . . oo cccc0sbsseeenseuenee 3

Reasons for Granting the Writ ................... 5

I. A United States Court of Appeals Has

Decided an Important Federal Question

Which Conflicts with Relevant Decisions

*: .* Speers 5

Il. A United States Court of Appeals Has

Issued a Decision in Conflict With the

Decision of Another United States Court

of Appeals on the Same Important

DENIER. oc ccccceeesdudeeumene 10

Ill. A United States Court of Appeals Has

Decided an Important Question of

Federal Law Which Has Not Been,

But Should Be, Settled by This Court ... 11

Sere iteebinndds dbheds6ecececece cs 18

TABLE OF CITATIONS

Cases Cited:

Berkemer v. McCarty

Ee cccchéudewecccecce 14, 15

Burns v. Reed

ee 12

California Attorneys for Criminal Justice v. Butts

BSo Foe NGSP CO Ce. 1DPD) wc cccsccces 6

Campaneria v. Reid

891 F.2d 1014 (2d Cir. 1989) ........... 15, 18

Cooper v. Dupnik

Sy ey SEP G BOOED occ cccccccccess 6

Dickerson v. United States .

i ae is og 9,10

Kastigar v. United States

CD sccccccsdbevedecsecess 7

iv

Mahoney v. Kesery

976 F.2d 1054 (7th Cir. 1992).............. 11

Malloy v. Hogan

PP SUED wcccecceceveveseneeesees 7

Martinez v. City of Oxnard -

270 F.3d 852 (9th Cir. 2001) ...... 1, 3, 5, 10, 13

Mincey v. Arizona

Sy Se SETED ocscdscscdsess 4, 12-16, 18

United States v. Calandra

SPP ED hc océsocetccussuadeceve 7

United States v. Kahlil

214 F.3d 111 (2d Cir. 2000) ............ 15,17

United States v. Leon

ED eas ceedtecusédiucoduas 7

United States v. Verdugo-Urquidez

PEPPY TTT TT Tee i, 7,8

Wilson v. Coon

808 F.2d 688 (8th Cir. 1987) ............... 15

Wilson v. Layne

PEED 6050-cbaceddccccdseans 12

Withrow v. Williams

Se SENN cc cecvendesneccesesosss 7

Statutes Cited:

Supreme Court Rule 14(f) ...............4.. |

APPENDIX

Appendix A — Opinion of the United States

Court of Appeals for the Ninth Circuit

Filed October 30, 2001 .... 2.0... ccc eeeeee

Appendix B — Order of the United States

of California Granting in Part and

Appendix C — Order of the United States

Court of Appeals for the Ninth Circuit

Filed December 26, 2001 ...........-5.0055:

l

Petitioner, Ben Chavez, respectfully requests a

petition for writ of certiorari to issue to review the

judgment of the United States Court of Appeals for the -

Ninth Circuit in this case.

_ OPINION BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit (“Ninth Circuit”) dated October 30, 2001,

is reported at Martinez v. City of Oxnard, 270 F.3d 852

(9th Cir. 2001). The United States District Court issued an

unreported decision dated August 1, 2000, granting

respondent’s motion for summary adjudication of his Fifth

Amendment claim.

BASIS FOR JURISDICTION

IN THIS COURT

suggestion for rehearing en banc was entered on

December 26, 2001.

jurisdiction to review on a writ of certiorari the judgment

and order in question is 28 U.S.C. §1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In accordance with Supreme Court Rule 14(f),

petitioner sets forth the constitutional provision and statute,

in relevant part, involved in this case:

No person . . . shall be compelled in

any criminal case to be a witness

against himself. . . .

U.S. Const., amend. V.

The statute . issue provides, in relevant part, as

follows:

Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State... .

subjects, or causes to be subjected,

any citizen of the United States...

to the deprivation of any rights,

privileges, or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an

action at law.... :

42 U.S.C. §1983.

3

STATEMENT OF THE CASE

The Ninth Circuit’s published decision in Martinez v

City of Oxnard, 270 F.3d 852 (9th Cir. 2001), generally

sets forth the facts of this case. Petitioner does not agree

with the Ninth Circuit’s determination of the length of the

challenged interview. |

As noted in the petition for rehearing and suggestion

for rehearing en banc, filed in the Ninth Circuit on

November 14, 2001, the decision contained an important

misstatement of fact: “the interview lasted 45 minutes.”

270 F.3d at 854. The record is clear that although

petitioner was present in the emergency room for

approximately 45 minutes, the total length of his interview

of the respondent was in fact only 10 minutes and 7

seconds (excerpts of record, p. 451:10-14, and p. 4 of

petition for rehearing.)

In the district court, respondent asserted that his

Fourth Amendment and Fifth Amendment rights were

violated by various police officers of the City of Oxnard.

The Fourth Amendment theories of liability were

predicated upon respondent having been shot by Oxnard

police officers.

Following the shooting, police officers arranged for

the transportation of the respondent to the local hospital,

St. John’s Regional Medical Center. Respondent had

sustained large-caliber bullet wounds to his head and upper

torso. Petitioner believed that respondent had very little

4

chance of survival, a belief which was reinforced by

respondent’s statement, “I am dying.”

In the belief that respondent’s account of the officer-

involved shooting would soon die with him, petitioner

tape-recorded his efforts over a ten-minute and seven-

second time span to elicit respondent's version of events.

Respondent’s second theory of liability is that the interview

was coercive and in violation of his Fifth Amendment right

against self-incrimination.

Respondent moved for summary judgment as to both

the Fourth Amendment and Fifth Amendment claims. The

district court denied summary judgment as to the Fourth

Amendment claim but granted respondent’s summary

judgment as to his Fifth Amendment claim.

Having asserted the defense of qualified immunity to

the Fifth Amendment claim, petitioner sought interlocutory

review. Respondent did not appeal the denial of his

summary judgment as to the Fourth Amendment claim.

Following briefing and argument, the Ninth Circuit

published its opinion, holding that: (1) statements by this

Court that the Fifth Amendment right against self-

incrimination was a trial right were dicta; (2) there was a

private right of action for an alleged Miranda violation

notwithstanding there was never a criminal proceeding in

which the allegedly coerced statements were sought to be

adduced by the state; and, finally, (3) the asserted parallels

which the current facts bore to those in this Court’s

decision in Mincey v. Arizona, 437 U.S. 385 (1978),

5

foreclosed qualified immunity to the petitioner. The

petition for rehearing and suggestion for rehearing en banc

was denied on December 26, 2001.

REASONS FOR GRANTING THE WRIT

I.

A UNITED STATES COURT OF APPEALS HAS

DECIDED AN IMPORTANT FEDERAL QUESTION

WHICH CONFLICTS WITH RELEVANT DECI-

SIONS OF THIS COURT.

In order to reach its conclusion in this case that there

is a private right of action for violation of the Fifth

Amendment right against self-incrimination, even though

the allegedly coerced statements are never introduced in

any criminal proceeding, the Ninth Circuit characterized a

number of pronouncements by this Court as obiter dicta.

The Ninth Circuit stated, “We recognize the existence of

Supreme Court dicta to the contrary.” 270 F.3d at 857.

The Ninth Circuit panel thereby declined to follow this

Court’s explanation of the Fifth Amendment right against

self-incrimination as a fundamental trial right whose

violation occurs only when the prosecutor attempts to

introduce the allegedly coerced statement into evidence

during some phase of a criminal proceeding.

The Ninth Circuit wrote, “Where the two [Supreme

Court dicta and Ninth Circuit holdings] are at odds,

however, we are bound to follow our own binding

precedent rather than Supreme Court dicta.” 270 F.3d at

6

857, n.3. The Ninth Circuit was referring to its two prior

decisions (Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.

1992), and California Attorneys for Criminal Justice v.

Butts, 195 F.3d 1039 (9th Cir. 1999)), which held that there

was a private right of action for violation of the Fifth

Amendment even if the inculpatory statements were never

sought to be introduced in any criminal proceeding.

The suggestion for rehearing en banc, pages 16-20,

urged the Ninth Circuit to reconsider its ruling en banc

because of the erroneous characterization of numerous

pronouncements by this Court as mere dicta. The Ninth

Circuit refused to do so.

It is second nature, when approaching Fourth

Amendment violations, to assume that the time of the

conduct is also the time of the violation. But the Ninth

Circuit erred in applying this temporal analysis to the Fifth

Amendment. A careful review of the text of the Fifth

Amendment, in combination with numerous

pronouncements by this Court, reveals that the Fifth

Amendment provides a criminal proceeding protection as

opposed to a generalized private right of action.

The text of the Fifth Amendment is the starting point

of the analysis. The Fifth Amendment confines its

application to “any criminal case.” The protection is

against a person being compelled “in any criminal case” to

be a witness against himself. In contrast, the Fourth

Amendment speaks emphatically and without limitation,

providing that the right of the people to be secure in their

7

persons, houses, papers, and effects against unreasonable

searches and seizures shall not be violated.

The privilege against self-incrimination guaranteed

by the Fifth Amendment is a fundamental rial right of

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

Although conduct by law enforcement officials prior to

trial may ultimately impair that right, the constitutional

violation occurs only at trial. Kastigar v. United States,

406 U.S. 441, 453 (1972).

The Fourth Amendment functions differently. That

amendment prohibits all unreasonable searches and

seizures, whether or not the evidence is ever sought to be

used in a criminal proceeding. A violation of the Fourth

Amendment is considered fully accomplished at the time

of an unreasonable governmental intrusion. United States

v. Calandra, 414 U.S. 338, 354 (1974); United States v.

Leon, 468 U.S. 897, 906 (1984). ,

Decisions of this Court have repeatedly limited the

protection of the Fifth Amendment to criminal prose-

cutions. In Withrow v. Williams, 507 U.S. 680, 691 (1993),

the Court wrote, “Prophylactic though it may be, in

protecting a defendant’s Fifth Amendment privilege

against self-incrimination, Miranda safeguards a

fundamental trial right.” [Emphasis in original text. }

This Court conducted a searching, comprehensive

examination of the issue in United States v. Verdugo-

Urquidez, 494 U.S. 259, 264-267 (1990). The amendment

being applied in that case was the Fourth Amendment;

nevertheless, the depth of elaboration in the decision makes

plain that the Court’s reasoning was to compare and

contrast the two amendments in order to reach the

appropriate conclusion to that case. The Ninth Circuit

declined to follow the detailed explanation of this Court on

the ground that it was allegedly dicta. Comprehensive

discussions of the B‘ll of Rights contained in the majority

opinion of the United States Supreme Court should not be

disregarded as dicta.

In Verdugo-Urquidez, this Court stated that “Before

analyzing the scope of the Fourth Amendment, we think it

significant to note that it operates in a different manner

than the Fifth Amendment... .” 494 U.S. at 264. The

privilege against self-incrimination guaranteed by the Fifth

Amendment is a fundamental trial right of criminal

defendants. It is a right which is properly asserted only

during trial and only by defendants in a pending criminal

proceeding. /d. Even though law enforcement conduct

“prior to trial” may be constitutionally violative, “a

constitutional violation occurs only at trial.” Jd.

At page 265 the Court explained that contrary to the

suggestion of amici curiae that the drafters of the Bill of

Rights used the phrase “the people” simply to avoid an

awkward rhetorical redundancy, the phrase “the people”

seems to have been a term of art employed only in select

parts of the Constitution. For example, the Preamble to the

Constitution declares that the Constitution was ordained

and established by “the people of the United States,” and

various amendments, such as the Second, Fourth, Ninth,

and Tenth, confer rights upon “the people.” The language

9

of those amendments contrasts with the words of the Fifth

and Sixth Amendments, which limit themselves to

regulating procedure in criminal cases by using the terms

“person” and “accused.”

The Ninth Circuit’s view that a Fifth Amendment

private right of action arises at the time of the alleged

violation even in the absence of any criminal proceeding is

further contradicted by this Court’s decision in Dickerson

v. United States, 530 U.S. 428 (2000). The issue in

Dickerson was whether a congressional enactment could

abrogate the requirement of the Miranda warnings.

This Court held that the Miranda warning-based

approach to determining the admissibility of statements

made by an accused during a custodial interrogation was

constitutionally based and could not be overruled by

legislation. In describing its holding in Dickerson, the

Court stated in the opening paragraph, “We therefore hold

that Miranda and its progeny in this Court govern the

admissibility of statements made during custodial inter-

rogation in both state and federal courts.” Jd. at 432

[emphasis added].

Many statements in the Dickerson opinion clarify that

the Fifth Amendment right is strictly a trial right whose

violation does not occur until the state attempts to admit

the statement into evidence during a criminal proceeding.

The Dickerson court explained, “We have never abandoned

this due process jurisprudence, and thus continue to

exclude confessions that were obtained involuntarily,” and

“Those guidelines established that the admissibility in

10

evidence of any statement given during custodial

interrogation of a suspect would depend on whether the

police provided the suspect with four warnings.” 530 U.S.

at 434, 435.

Dickerson clarifies that the Fifth Amendment’s self-

incrimination clause, incorporated into the due process

clause of the Fourteenth Amendment and thus applied to

the state, is designed to prevent a person from being

compelled to incriminate himself — an event which can

only occur during a prosecutorial proceeding in which

jeopardy attaches. No jeopardy attaches until the state

attempts to convict a person of a charged criminal offense.

In the instant case, respondent was never charged with any

crime, nor is there any contention that the statements thus

elicited were sought to be introduced against him in any

criminal proceeding. Thus, on these facts, civil liability

against the petitioner should not result.

A UNITED STATES COURT OF APPEALS HAS

ISSUED A DECISION IN CONFLICT WITH THE

DECISION OF ANOTHER UNITED STATES

COURT OF APPEALS ON THE SAME IMPORTANT

MATTER. :

In contrast with the Ninth Circuit’s decision, 270 F.3d

at 857, n.3, the Seventh Circuit has held that a violation of

the Fifth Amendment right against self-incrimination

occurs only at the time of attempted introduction into

ll

evidence during a criminal proceeding of the allegedly

coerced statements. The Seventh Circuit stated:

But was Mahoney’s right not

to be compelled to incriminate

himself violated? No incriminating

statement was made by Mahoney,

let alone used against him in a legal

proceeding, and we have said that

the Fifth Amendment does not

forbid the forcible extraction of

information but only the use of

information so extracted as evidence

in a criminal case — otherwise,

immunity statutes would be

Mahoney v. Kesery, 976 F.2d 1054, 1061-1062 (7th Cir.

1992).

A UNITED STATES COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

One of the most important avenues of information-

gathering for police officers is questioning witnesses to

potential criminal offenses, witnesses who may often be

suspects or defendants. This Court has never addressed the

issue of qualified immunity as that doctrine applies to

12

questioning in a hospital environment. No extant Supreme

Court decision addresses the civil implications of the

Mincey decision or whether substantial deviations from the

constitutionally offensive conduct which occurred in

Mincey call the qualified immunity into play.

The rule of qualifies wamunity provides ample

support to all but the plainiy incompetent or those who

knowingly violate the law. Burns v. Reed, 500 U.S. 478,

494-95 (1991). Even conduct constitutionally violative

may provide protection for the individual officer if

constructive notice of its unconstitutionality has not been

provided by previously decided, closely correspondent

precedent. Wilson v. Layne, 526 U.S. 603, 609 (1999).

Petitioner is entitled to qualified immunity because

the present facts are far less aggravated than those

criticized by this Court in Mincey. The Ninth Circuit

denied petitioner qualified immunity, saying that his

interview was more egregious than the one in Mincey, but

that is not true. There was a cogent reason for interviewing

the respondent (to preserve the account of a moribund key

witness to an officer-involved shooting). By contrast, no

justification other than eliciting a criminal confession from

a recovering surgical patient existed in Mincey.

In Mincey, the interviewee asked “repeatedly that the

interrogation stop until he could get a lawyer.” 437 U.S. at

396. The text of the interview is set out in the margin at

399, and it appears that there were at least three separate

requests for a lawyer. A possible fourth request for a

lawyer appears in the text of the Mincey decision at 399.

13

The Mincey court underscored the requests to see a lawyer

(437 U.S. at 399), presumably because of the primacy of

the legal ombudsman to the operation of our system of law.

The Mincey court emphasized the temporal proximity of

the request for counsel to the questions turning to the

details of the afternoon’s events. As soon as the Mincey

detective asked about the afternoon’s events, the

interviewee immediately stated, “This is all I can say

without a lawyer.” :

The hallmark of coercive interrogation decisions is

the disregarded request for counsel, which is wholly

nonexistent in the current factual setting. Respondent

never once asked to see a lawyer, nor did he request any

intermediary or ombudsman, such as a priest, parent, or

spouse. The absence of any request for counsel in the

present facts belies the Ninth Circuit's observation at

270 F.3d 858 that “to the extent Sgt. Chavez’s conduct

differs from that of the officers in Mincey, it is more

eer

One of the aggravating features of the Mincey facts

was the enlistment of medical personnel to assist in

breaking down the interviewee’s will to resist. At 437 U.S.

399, the decision recites that “a nurse who was present

suggested it would be best if Mincey answered.” No doubt

it is very frightening to a seriously injured person to have

the very people who are entrusted with his care turn into

the confederates of the state.

whatsoever. At no time nor in any way did petitioner

14

attempt to enlist the assistance of the medical personnel

attending the respondent, nor did any medical personnel -

present in the emergency room make any statement which

indicated that respondent should cooperate with the

interviewer.

from those held constitutionally violative in Mincey was

the duration of the interview, which in Mincey was four

hours, from 8:00 p.m. until midnight. 437 U.S. at 396. In

contrast, the interview length in the present case was ten

minutes and seven seconds. Coercive interrogations are

frequently marked by the length of the examination. This

difference, in and of itself, strongly contraindicates an

overbearing of will.

Also belying the Ninth Circuit’s pronouncement that _

petitioner’s conduct was more egregious than that involved

in Mincey is the fact that the interview in Mincey took

place in a recovery room (with virtually no one else

present), so that the interviewee was “at the complete

mercy” of the interrogator. 437 U.S. at 396, 399. In the

present case, the interview took place in a busy emergency

room with numerous medical personnel in attendance.

This Court has ruled that the presence of non-police

personne! substantially dissipates the coerciveness of the

environment. Berkemer v. McCarty, 468 U.S. 420, 438-

439 (1984). If a detention occurs in view of non-police

witnesses, public exposure reduces the likelihood that law

enforcement agents will use oppressive or abusive tactics

and renders the situation substantially less police

15

dominated. Other courts have reasoned that if the mere

presence of uninvolved passersby, such as in Berkemer,

renders the environment substantially less police

dominated, then the presence of medical personnel whose

sworn duty is to care for their patient even more strongly

dissipates the coerciveness of an environment. Wilson v.

Coon, 808 F.2d 688, 690 (8th Cir. 1987); United States v.

Kahlil, 214 F.3d 111, 121 (2d Cir. 2000); Campaneria v.

Reid, 891 F.2d 1014, 1020 (2d Cir. 1989).

In the Mincey case, the detective did not create any

contemporaneous record of the interview, —

was perhaps trying to conceal the degree of coercion

the present case, petitioner tape-recorded the entirety of the

interview. He was not trying to hide anything but, rather,

to preserve a moribund key witness’s account of recent

important events.

In Mincey, the interviewee was in no danger of death.

He was removed from the emergency room and placed in

the intensive care unit; he had sustained a wound to his hip,

resulting in damage to his sciatic nerve and partial paralysis

of his right leg. The present case, in sharp contrast, has the

only non-police witness to an officer-involved shooting in

imminent danger of expiration.

At no time did petitioner threaten respondent in any

way. He did not state that respondent was going to be

arrested or prosecuted or that medical care would be

discontinued if he failed to respond to the inquiries.

16

The great majority of petitioner’s questions were not

leading or accusatory but were merely designed to elicit

respondent’s version of events (petitioner asked respondent

questions such as “Oliverio — what happened? Oliverio

— tell me what happened. What happened, sir? Oliverio,

sir, what happened?”). In contrast, the detective in Mincey

posed a lengthy series of pointedly inculpatory accusations,

such as “How did [you] get into the apartment?” . . . . “Did

you sell some narcotics to the guy that was shot?”... .

“Did you give him a sample?” . . . . “A small amount of

drug or narcotic to test?” . . . . “Did you shoot anyone?”

One of the salient features of Mincey was that the

interviewee was not mentally competent, fading in and out

of consciousness, giving answers which on their face were

not coherent, and periodically actually losing conscious-

ness. The interviewee in Mincey was confused to the point

that he was unable to think clearly about either the events

of that afternoon or the circumstances of his interview. In

contrast, the respondent was lucid throughout the interview

and never expressed any hallucinations or statements

indicating that he was confused or unable to think clearly;

his responses made sense.

In Mincey, the interviewee’s will was undermined by

forcing him to write the answers on pieces of paper

provided by the hospital. The only contemporaneous

record consisted of Mincey’s written answers. In the

present case, petitioner was Spanish speaking and

conducted the interview entirely in respondent’s native

language.

17

A number of other features substantially reduced the

coerciveness of the questions. At no time did petitioner

interfere with the provision of medical care to the

respondent. Petitioner was the only police officer who

questioned respondent and was the only police officer

present in the emergency room (another officer briefly

entered to ask petitioner a question and promptly departed).

Petitioner never placed respondent under arrest, nor did he

ever make any dhysical contact with respondent. At no

time did respondent ever ask petitioner to leave. At no

time did petitioner raise his voice or scream or yell at

respondent.

In contrast with the Ninth Circuit decision, other

courts have held that police interviews of seriously injured

individuals in a medical setting are not constitutionally

violative. In United States v. Kahlil, supra, 214 F.3d 111,

a criminal defendant appealed his conviction of

participation in a bomb plot by contending that the district

court erred in denying his pretrial motion to suppress

certain post-arrest statements which he made and in

admitting those statements in trial. Following a raid on his

apartment, officers questioned him at the hospital about the

construction and stability of bombs which they suspected

that he helped build or store. He was not given Miranda

warnings, nor was he told that he had any right to refuse to

respond.

The defendant in Kahlil moved to suppress his

responding statements on the grounds that no Miranda

warnings were given to him and that his physical condition,

as he was being prepared for life-saving surgery, prevented

18

his answers from being knowing and voluntary. The

Second Circuit affirmed the denial of his suppression

motion. While his medical condition was grave, it was not

such as to prevent his statements from being knowing and

voluntary.

In Campaneria v. Reid, supra, 891 F.2d 1014, the

arrestee was relatively young and foreign-born, with a poor

command of the English language. During questioning, he

was suffering from a serious knife wound and was in

significant pain. The police questioned him at the hospital

in the intensive care unit. During questioning, with tubes

running in and out of his body, he complained of dizziness.

Despite relentless questioning by multiple police

interrogators, the Second Circuit held that the interviewee

was not coercively examined. He was generally alert and

awake despite his pain. Although there were many

interviews, they were all relatively short.

CONCLUSION

Petitioner urges the Court to grant certiorari because

the Ninth Circuit decision (1) conflicts with relevant

decisions of this Court; (2) conflicts with decisions from

other courts on the same subject; and (3) provides an

opportunity for this Court to settle the law on an important

issue. Also, petitioner contends, for all the reasons stated

herein, that the Ninth Circuit’s conclusion that the facts in

this case are more egregious than in Mincey is simply

wrong. Under the instant circumstances, petitioner’s

19

conduct should be protected from civil liability by the

reasonable and fair application of the doctrine of qualified

immunity.

Respectfully submitted,

ALAN E. WISOTSKY

Counsel of Record

JEFFREY HELD

LAW OFFICES OF ALAN E. WISOTSKY

300 Esplanade Drive, Suite 1500

Oxnard, California 93030

(805) 278-0920

GARY L. GILLIG

City Attorney

CITY OF OXNARD

300 West Third Street, Suite 300

Oxnard, California 93030

(805) 385-7483 '

Attorneys for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED OCTOBER 30, 2001

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLIVERIO MARTINEZ, _ )

: Case No. 00-56520

Plaintiff —Appellee,

D.C. No. CV-98-093 13-FMC

v.

CITY OF OXNARD;

OXNARD POLICE

DEPARTMENT; ART

LOPEZ, Chief; MARIA

PENA; ANDREW

SALINAS; RON ZAVALA,

OPINION

Defendants,

and

BEN CHAVEZ,

i A a ee a ee a Le LL Le Le Le, Le Le, Le

: Ber eet ys Defendant—Appellant.

2a

Appeal from the United States District Court

for the Central District of California

Florence Marie Cooper, District Judge, Presiding

Argued and Submitted

June 11, 2001 — Pasadena, California

Filed October 30, 2001

Before: Kim McLane Wardlaw, Richard A. Paez

and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge: ij

We must determine whether a police officer who

conducts a coercive, custodial interrogation of a suspect

who is being treated for life-threatening, police-inflicted

gunshot wounds may invoke qualified immunity in a civil

suit for damages under 42 U.S.C. §1983 (2001). Under the

circumstances of this case, we hold he may not.

On November 28, 1997, police officers Maria Pena

and Andrew Salinas were investigating narcotics activity

near a vacant lot in a residential area of Oxnard, California.

While questioning one individual, they heard a bicycle

approaching on the darkened path that traversed the lot.

Officer Salinas ordered the rider, Oliverio Martinez, to

3a

stop, dismount, spread his legs, and place his hands behind

his head. Martinez complied.

During a protective pat-down frisk, Officer Salinas

discovered a knife in Mr. Martinez’s waistband. Officer

Salinas alerted his partner and pulled Martinez’ s hand from

behind his head to apply handcuffs. Officer Salinas claims

he offered no resistance. Either way, Officer Salinas

tackled Martinez and a struggle ensued.

Both officers testified that during the struggle

Martinez did not attempt to hit or kick them; Officer

Salinas struck the only blow. The officers maintain that

Martinez drew Officer Salinas’s gun and pointed it at them.

Martinez alleges that Officer Salinas began to draw his gun

and that Martinez grabbed Officer Salinas’s hand to

prevent him from doing so.

All parties agree that Officer Salinas cried out,

“He’s got my gun.” Officer Pena drew her weapon and

fired several times. One bullet struck Martinez in the face,

damaging his optic nerve and rendering him blind.

Another bullet fractured a vertebra, paralyzing his legs.

Three more bullets tore through his leg around the knee

joint. The officers then handcuffed Martinez.

The patrol supervisor, Sergeant Ben Chavez,

arrived on the scene minutes later along with paramedics.

While Sergeant Chavez discussed the incident with Officer

Salinas, the paramedics removed the handcuffs so they

could stabilize Martinez’s neck and back and loaded him

4a

into the ambulance. Sergeant Chavez rode to the

emergency room in the ambulance with Martinez to obtain

his version of what had happened.

As emergency room personnel treated Martinez,

Sergeant Chavez began a taped interview. Chavez did not

preface his questions by reciting Miranda warnings. The

interview lasted 45 minutes. The medical staff asked

Chavez to leave the trauma room several times, but the

tape shows that he returned and resumed questioning.

Chavez turned off the tape recorder each time medical

personnel removed him from the room. The transcript of

the recorded conversation totals about ten minutes and

provides an incontrovertible account of the interview.

Sergeant Chavez pressed Martinez with persistent,

directed questions regarding the events leading up to the

shooting. Most of Martinez’s answers were non-

responsive. He complained that he was in pain, was

choking, could not move his legs, and was dying. He

drifted in and out of consciousness. By the district court’s

tally, “(during the questioning at the hospital, [Martinez]

repeatedly begged for treatment; he told [Sergeant

Chavez] he believed he was dying eight times; complained

that he was in extreme pain on fourteen separate occasions;

and twice said he did not want to talk any more.” Chavez

stopped only when medical personnel moved Martinez out

of the emergency room to perform a C.A.T. scan.

Martinez filed a complaint under 42 U.S.C. § 1983

alleging that the officer defendants violated his

constitutional rights by stopping him without probable

Sa

cause, using excessive force, and subjecting him to a

He moved for summary judgment on each of his claims.

The district court denied Sergeant Chavez’s defense of

qualified immunity and granted summary judgment for

Martinez on his claim that Chavez violated his Fifth and

Fourteenth Amendment rights by coercing statements from

him during medical treatment.' In this interlocutory

appeal, Chavez argues that the district court erred by

holding that he was not entitled to qualified immunity.

We have jurisdiction over Sergeant Chavez's

interlocutory appeal of the purely legal question whether he

is entitled to qualified immunity. Mitchell v. Forsyth,

472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

We review de novo the district court’s determination on

summary judgment that Chavez cannot invoke qualified

immunity as a bar to civil litigation. Robinson v. Prunty,

249 F.3d 862, 865-66 (9th Cir.2001). For the purposes of

this interlocutory appeal, we must accept as true the facts

alleged by Martinez and determine whether Chavez is

nonetheless entitled to qualified immunity as a matter of

law. Id. at 866.

'The district court denied summary judgment on

Martinez’s claims that he was improperly stopped by the

police and that they used excessive force against him.

Those claims will be tried to a jury.

©

[1] Section 1983 permits an individual whose

federal constitutional or statutory rights have been violated

by a public official acting under color of state law to sue

the official for damages. Public officials are afforded

protection, however, “from undue interference with their

duties and from potentially disabling threats of liability.”

Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982). Qualified immunity shields them

“from liability for civil damages insofar as their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” /d. at 818, 102 S.Ct. 2727. Only conduct

that an official could not reasonably have believed was

legal under settled law falls outside the protective

sanctuary of qualified immunity. Hunter v. Bryant,

502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)

(per curiam).

To determine whether Sergeant Chavez is entitled

to qualified immunity, we must first determine whether

Martinez has stated a prima facie claim that Chavez

violated one of his constitutional rights. Saucier v. Katz,

533 U.S. 194, __, 121 S.Ct. 2151, 2155, 150 L.Ed.2d

272 (2001). If we determine that Martinez has stated a

prima facie case, then we must determine whether the right

allegedly violated was clearly established by federal law.

Id. We hold that Chavez violated the Fifth and Fourteenth

Amendments by subjecting Martinez to a coercive,

custodial interrogation while he received treatment for life-

threatening gunshot wounds inflicted by other police

officers.

7a

[2] In Brown v. Mississippi, 297 U.S. 278, 286,

56 S.Ct. 461, 80 L.Ed. 682 (1936), a unanimous Supreme

Court condemned police officers’ use of violence to coerce

confessions from criminal suspects as “revolting to the

sense of justice” embodied in the Constitution. Although

the coercive tactics employed by the police in Brown

involved physical violence, the Court clarified in

subsequent opinions that the Fifth and Fourteenth

Amendments also proscribe more subtle forms of police

coercion. See Haynes v. Washington, 373 U.S. 503,

83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (holding that a

confession obtained by refusing to let a suspect contact his

wife was coercive and, therefore, unconstitutional);

Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d

922 (1963) (holding that a confession obtained by

threatening a suspect with the loss of custody of her

children was coercive and, therefore, unconstitutional);

Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921,

88 L.Ed. 1192 (1944) (holding that prolonged interrogation

without rest or contact with individuals other than law

enforcement officers was coercive and, therefore,

unconstitutional).’

Each of these cases holds that a coerced confes-

sion violates the Fourteenth Amendment and may there-

fore not be admitted at trial as evidence. None of them

establishes a civil remedy for violation of the Fourteenth

Amendment. But see Cooper v. Dupnik, 963 F.2d 1220,

1244-45 (9th Cir.1992) (en banc), cert. denied, 506 U.S.

953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992). Section

(continued...)

8a

[3] Chief Justice Warren observed in Blackburn v.

Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242

(1960), that “coercion can be mental as well as physical,

and ... the blood of the accused is not the only hallmark of

an unconstitutional inquisition.” A police officer’s

extraction of a confession is unconstitutional if,

“considering the totality of the circumstances, the [officer]

obtained the statement by physical or psychological

coercion or by improper inducement so that the suspect’s

will was overborne.” United States v. Coleman, 208 F.3d

786, 791 (9th Cir.2000) (quotations and citation omitted);

see also Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct.

1745, 123 L.Ed.2d 407 (1993).

[4] Martinez argues that, considering the totality of

the circumstances, Sergeant Chavez’s interrogation was

coercive and that it therefore violated the Fifth and

Fourteenth Amendments. Chavez’s coercive, custodial

questioning violated the plaintiff's substantive Fifth

Amendment right against compulsory self-incrimination.

Cooper, 963 F.2d at 1235. Under Cooper, a Fifth

Amendment violation occurs when a police officer coerces

self-incriminating statements from a suspect in custody.

*(...continued)

1983 requires only that the right, not the remedy, be

established. Indeed, Congress’s purpose in enacting

§1983 was to create a novel civil remedy for violation of

established constitutional rights. See Chapman v.

Houston Welfare Rights Org., 441 U.S. 600, 617-18,

99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

9a

Id. at 1236-37, 1242-44. The plaintiff in that case stated a

cause of action under §1983 for violation of his Fifth

Amendment right against self-incrimination by alleging

that police officers used deception and psychological

coercion to extract statements from him. /d. at 1242-43.

Sitting en banc, we held that the officers’ conduct violated

the Fifth Amendment even though the plaintiff was never

prosecuted, noting that the Fifth Amendment’s purpose is

to prevent coercive interrogation practices that are

“destructive of human dignity.” Jd at 1239 (quoting

Miranda v. Arizona, 384 U.S. 436, 457-58 (1966)). We

echoed the Supreme Court’s holding in Miranda that this

animating purpose was adequately achieved only if the

Fifth Amendment cast its protection against coerced self-

incrimination not just over the courthouse, but also over

the jailhouse, the police station, and other settings in which

law enforcement authority was invoked to curtail a

criminal suspect’s freedom of action in any significant

way. /d. at 1239.

[5] Here, as in Cooper, a police officer’s conduct

“actively compelled and coerced” a plaintiff to utter

statements that the plaintiff could reasonably believe might

be used in a criminal prosecution or lead to evidence that

might be so used. Jd. at 1243; see also Kastigar v. United

States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 92 S. Ct. 1653

(1972) (holding that the Fifth Amendment “protects against

any disclosures which the witness reasonably believes

could be used in a criminal prosecution or could lead to

other evidence that might be so used”). Even though

Martinez’s statements were not used against him in a

criminal proceeding, Chavez’s coercive questioning

10a

violated Martinez’s Fifth Amendment rights. Cooper,

963 F.2d at 1237; see also California Attorneys for

Criminal Justice v. Butts, 195 F.3d 1039, 1047-49 (9th Cir.

2000) (holding that Miranda and its progeny establish

clearly and unequivocally that coercive, custodial

interrogation violates the Fifth Amendment).’ We affirm

the district court’s holding that Officer Chavez cannot

invoke qualified immunity as a defense to Martinez’s Fifth

Amendment claims.

[6] Likewise, a police officer violates the

Fourteenth Amendment when he obtains a confession by

coercive conduct, regardless of whether the confession is

subsequently used at trial.

The due process violation caused by

coercive behavior of law-enforcement

*We recognize the existence of Supreme Court

dicta to the contrary. See United States v. Verdugo-

Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056,

108 L.Ed.2d 222 (1990) (“The privilege against self-

incrimination guaranteed by the Fifth Amendment is a

fundamental trial right of criminal defendants. Although

conduct by law enforcement officials prior to trial may

ultimately impair that right, a constitutional violation

occurs only at trial.”). Where the two are at odds,

however, we are bound to follow our own binding

precedent rather than Supreme Court dicta. See Ayala v.

United States, 550 F.2d 1196, 1200 (9th Cir.1977)

(holding that Supreme Court dicta is not binding).

lla

officers in pursuit of a confession is

complete with the coercive behavior

itself... The actual use or attempted use of

that coerced statement in a court of law is

not necessary to complete the affront to the

Constitution.

eant Chavez vio teent

yoo st rights to be free from police coercion In

pursuit of a confession.

[7] We must now determine whether the rights 9

Martinez alleges Chavez violated were clearly establis

by federal law.

i be

The contours of the right must |

sufficiently clear that a reasonable official

would understand that what he is =

violates that right. This is not to say that an

official action is protected by qualified

immunity unless the very action in question

has been previously held unlawful, but it is

to say that in light of pre-existing law the

unlawfulness must be apparent.

Anderson v. Creighton, 483 US. 635, 640, 107 ve "

97 L.Ed.2d 523 (1987) (internal citations om! Be “

must determine, in other words, whether a —

officer in Sergeant Chavez’s position would en -

that his conduct violated Martinez’s Fifth and Fo

12a

Amendment rights to be free from coercive interrogation.

Because “whether [a] confession was obtained by coercion

or improper inducement can be determined only by an

€xamunation of all of the attendant circumstances.” Haynes

373 U.S. at 513, 83 S.Ct. 1336, our holding will

necessarily be a narrow one confined to the specific facts

of this case. Nor do we opine on the appropriate ‘neasure

of damages for such a violation; that is for the jury to

decide. See Cooper, 963 F.2d at 1245 (“[T]he fact that [the

suspect] never formally was charged in court and none of

his Statements ever were offered in evidence to his

potential detriment is relevant only to damages, not to

whether he has a civil cause of action in the first place.”)

[8] The record before us reveals that

Chavez doggedly pursued a statement by ‘cones aie

being asked to leave the emergency room several times

He ignored Martinez’s pleas to withhold questioning until

he had received medical treatment. A reasonable cfficer

questioning a suspect who had been shot five times ay the

police and then arrested, who had not received Miranda

wamings, and who was receiving medical treatment for

excruciating, life-threatening injuries that sporadically

caused him to lose consciousness, would have known that

persistent interrogation of the suspect despite repeated

requests to stop violated the suspect’s Fifth and Fourteenth

Amendment right to be free from coercive interrogation.

The Supreme Court held

Pe ti: : }]

indistinguishable interrogation unconstituti a virtually

v. Arizona: mmional in Mincey

13a

[The officer] ceased the interrogation only

during intervals when [the suspect] lost

consciousness or received medical

treatment, and after each such interruption

returned relentlessly to his task. The

statements at issue were thus the result of

virtually continuous questioning of a

seriously and painfully wounded man on

the edge of consciousness.

437 U.S. 385, 401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);

but cf, United States v. George, 987 F.2d 1428, 1430-31

(9th Cir. 1993) (holding that interrogation in the hospital of

a coherent suspect who has received Miranda warnings is

not unconstitutional); United States v. Lewis, 833 F.2d

1380, 1384 (9th Cir.1987) (holding voluntary a statement

elicited from a suspect just after she returned from surgery

and emerged from the effects of general anesthetic where

the suspect was alert, responsive, and unresisting).

To the extent Sergeant Chavez’s conduct differs

from that of the officers in Mincey, it is more egregious.

Sergeant Chavez did not read Martinez his Miranda

warnings. See Davis v. North Carolina, 384 U.S. 737, 740,

86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (“[T]hat a defendant

was not advised of his right to remain silent or of his right

respecting counsel at the outset of interrogation ... is a

significant factor in considering the voluntariness of

statements later made.”); Miranda, 384 U.S. at 467,

86 S.Ct.-1602 (“[W]ithout proper safeguards the process of

in-custody interrogation ... contains inherently compelling

pressures which work to undermine the individual’s will to

l4a

pe and to compel him to speak where he would not

therwise rs So freely.”). Chavez persisted in questioning

ne Z uring, not after, medical treatment. Although

pase Rane not, like Mincey, affirmatively request

a Ae repeatedly requested that Sergeant Chavez

m interviewing him until his medical treatment

was complete and his life was no longer in danger.

[9] In light of the extreme ci

rcumstances in thi

case, a reasonable police officer in Sergeant Chavez's

— could not have believed that the interrogation of

ne comported with the Fifth and Fourteenth

er ents. Accordingly, the district court did not err by

ding that on these facts qualified immunity was not

available to Chavez to insulate him from Martinez’s civil

rights suit for damages. ws

AFFIRMED.

15a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

GRANTING IN PART AND DENYING

IN PART PLAINTIFF’S MOTION

FOR SUMMARY ADJUDICATION

‘FILED AUGUST 1, 2000

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

OLIVERIO MARTINEZ, _) CV 98-9313 FMC (AJWx)

)

Plaintiff, )

) ORDER GRANTING

) IN PART AND

) DENYING IN PART

CITY OF OXNARD, et al., ) PLAINTIFF'S

) MOTION FOR

Defendants. ) SUMMARY

) ADJUDICATION

)

vs.

I. Introduction

Plaintiff filed a complaint under 42 U.S.C. §1983

alleging that the individual officer defendants violated his

constitutional rights by stopping him without probable

l6a

cause, using excessive force and interrogating him while he

was receiving medical care. Plaintiff's complaint also

alleged thit: the City failed to train the officers, the

individual officers acted pursuant to a policy or custom of

the City of Oxnard, defendants battered plaintiff and

defendants acted negligently. These claims, enumerated as

plaintiff's second, third, fourth, and fifth claims for relief,

as well as all claims against defendants Lopez and Hurtt,

were dismissed by stipulation. Plaintiff moved for

summary adjudication on his remaining claims for

damages against the individual officers under §1983.

Plaintiff's motion does not comply with several of

the requirements of the Local Rules of the Central District

of California. Most importantly, plaintiff s counsel did not

comply with Local Rule 7.4.1’s requirement that twenty

days before filing a noticed motion, “counsel

contemplating the filing of any motion shall contact

opposing counsel to discuss thoroughly, preferably in

person, the substance of the contemplated motion.”

Plaintiff's counsel’s letter, mailed twenty-one days before

the motion was filed presented no opportunity for counsel

to “discuss thoroughly” the contemplated motion. In

addition, plaintiff's papers do not conform to the typeface

size requirements of Local Rule 3.4.1. Failure to comply

with the important procedural requirements of the local

rules may result in denial of the motion or mo

sanctions. See Local Rule 27. Although plaintiffs motion

is procedurally defective, in the interest of judicial

economy, the Court issues the following decision:

17a

Il. Standard for Summary Adjudication

Plaintiff s motion for summary adjudication seeks

rulings from the Court on several issues: that =

questioning of plaintiff by Chavez violated plaintiff s Fi

and Fourteenth Amendment rights; that plaintiff's state-

ments in the hospital are untrustworthy because plaintiff

was not competent; that Chavez violated plaintiff's Eighth

Amendment rights by interrogating him at the hospital; and

that plaintiff's stop and detention violated his Fourth

Amendment rights. Defendants correctly point out that

plaintiff cannot seek adjudication of “issues under Federal

Rule of Civil Procedure 56. Instead, partial summary

judgment or summary adjudication is available only for an

entire “claim.” Accordingly, the Court treats the motion as

one for summary adjudication of defendants liability for

plaintiff's §1983 claims for violations of the Fourth, Fifth,

Eighth and Fourteenth Amendments.

Summary adjudication is only proper where vor

pleadings, depositions, answers to a

admissions on file, together with the affidavits, if any,

snhow that there is no issue as to any material fact and that

the moving party is entitled to judgment 8s a malls!’ ©

law.” Fed. Rule Civ. Proc. 56(b); see also Matsus ~

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 5

586-87 (1986). The moving party bears the initial burden

of demonstrating the absence of a genuine issue of a

fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986).

18a

Ill. Factual Background

Plaintiff alleges that: he was riding his bicycle

home at approximately 7:00 p.m. on November 28, 1997,

when defendant officers Pefia and Salinas stopped him

without probable cause; although plaintiff complied with

Salinas’ orders, Salinas jumped on top of him after

conducting a pat down search; although plaintiff was

wearing the knife he used for work at the time, he did not

attempt to remove it from its sheath; while plaintiff and

Salinas were struggling on the ground, Pefia approached

and shot plaintiff in the temple, the abdomen and the knee.

Defendants contend that: while investigating

reports of drug activity, Pefia and Salinas saw plaintiff

approach on his bicycle; because they believed the area he

was riding in was an enclosed field, they asked plaintiff to

stop so they could ask him about the reported drug activity;

Salinas ordered plaintiff to get off of his bicycle and put his

hands behind his head and Plaintiff complied; Salinas

performed a pat down search and discovered plaintiff s

knife; Salinas contends that plaintiff made a “furtive”

movement toward the knife which he countered by forcing

plaintiff to the ground; as the two struggled, Pefia

approached; during the struggle, plaintiff removed Salinas’

gun from its holster and began pointing it at both

defendants; Pefia shot plaintiff in response.

a: Parties agree that the following occurred: Pefia shot

plaintiff; plaintiff was taken to the hospital; while plaintiff

was being treated and prepared for surgery, Officer Chavez

questioned plaintiff; and plaintiff stated to Chavez that he

19a

grabbed Salinas’ gun. Plaintiff was not charged with a

crime as a result of the incident.

IV. Plaintiff's Constitutional Claims

A. Questioning of Plaintiff at the Hospital

As noted above, there is no dispute that Chavez

questioned plaintiff at the hospital. Plaintiff contends that

Chavez violated plaintiffs Fifth and Fourteenth

Amendment rights when Chavez extracted from him a

statement that was a product of coercion.

I. Voluntariness of Plaintiff's S c}

In determining the voluntariness of a confession,

the Court must determine “whether, under the totality of

the circumstances, the challenged confession was obtained

in a manner compatible with the requirements of the

Constitution.” Collazo v. Estelle, 940 F.2d 411, 415 (9th

Cir. 1991). A statement is involuntary if it is extracted by

threats or violence or the exertion of any improper

influence. See United States v. Bautista-Avila, 6 F.3d

1360, 1364 (9th Cir. 1993). “The test is whether,

considering the totality of the circumstances, the

government obtained the statement by physical or

psychological coercion or by improper inducement so that

the suspect’s will was overbomne.” Derrick v. Peterson,

924 F.2d 813, 817 (9th Cir. 1990). The question of

whether a confession is voluntary is a matter of law. See

United States v. D.F., 115 F.3d 413, 418 (7th Cir. 1997).

20a

A statement may be found involuntary, even if

made when the party was not in custody. See US. v.

Eccles, 850 F.2d 1357, 1361 n.2 (9th Cir. 1988). The

requirement that statements, to be admissible, must be

voluntary, is based on both the right against self-

incrimination and the standards of due process. See

Oregon v. Elstad, 470 U.S. 298, 304 (1985). Involuntary

statements are inherently untrustworthy, and their use

violates our fundamental sense of decency. See Spano v.

New York, 360 U.S. 315, 320 (1959). Therefore, a

statement found to be involuntary may be excluded from

both criminal and civil proceedings. See Watkins v.

Sowders, 449 U.S. 341, 347 (1981) (an involuntary

confession is inadmissible in part because such a

confession is likely to be unreliable); Federal Rule of

Evidence 403.

In examining the totality of the circumstances, the

Court considers many factors to evaluate voluntariness:

whether the police engaged in overreaching; whether the

accused was under the influence of pain medication; the

general mental status of the accused at the time the

statement was given; whether questioning was intense and

lengthy, particularly if an accused has been deprived of

food or sleep; and the presence or absence of counsel,

defendant’s awareness of the charges he was facing, and

whether he had been advised of his right to counsel. See,

e.g., Colorado v. Connelly, 479 U.S. 157, 163 (1986)

(overreaching); Beecher v. Alabama, 408 U.S. 234, 237

(1972) (under the influence of pain medication); Blackburn

v. Alabama, 361 U.S. 199, 205 (1960) (mental status);

2la

Reck v. Pate, 367 US. 433, 441 (1961) (length of

questioning); 18 U.S.C. §3501 (listing considerations).

The evidence establishes that plaintiffhad been shot

at least four times, one of the bullets having penetrated his

head. The other bullets entered his chest, abdomen and

spinal area, and knee. During the questioning at the

hospital, plaintiff repeatedly begged for treatment; he told

the officer he believed he was dying eight times;

complained that he was in extreme pain on fourteen

separate occasions; and twice said he did not want to talk

any more.' According to the police follow-up report,

plaintiff was yelling in pain and was in and out of

consciousness. Chavez acknowledged at his deposition

that at the time of the questioning, plaintiff “was not doing

too good.” Officer Chavez also testified that although

plaintiff told him at the hospital he did not want to talk to

him, the officer continued to ask him questions and did not

advise him of his Miranda rights.

'The Declaration of Officer Chavez, submitted in

Opposition to this Motion, contains the following state-

ment concerning the interview at the hospital: “He never

refused to respond to my questions until the end of the

interview, at which time I stopped the interview.”

(McCormick Dec., Ex. F, 98.) The transcript of the

interview reflects that on two occasions during the inter-

view, plaintiff told the officer he did not want to say

anything further, but the questioning continued.

(McCormick Dec., Ex. I, at 6, 11.) The Declaration does

not create a triable issue of fact.

22a

Certainly, not every interrogation of a wounded

suspect in a hospital bed is coercive.” However, the totality

of the circumstances in this case convinces the Court that

plaintiff's statement was not voluntarily given. He had

been shot in the face, both eyes were injured; he was

screaming in pain, and coming in and out of consciousness

while being repeatedly questioned about details of the

encounter with the police. The questioning persisted in

spite of plaintiff's request for medical treatment and

unequivocal statements that he did not want to talk.

The facts of this case are remarkably similar to

those in Mincey v. Arizona, 437 U.S. 385 (1978). The

Mincey Court described the circumstances under which the

defendant had given his statement.

He had been seriously wounded just a few

hours earlier, and had arrived at the hospital

“depressed almost to the point of coma,”

according to his attending physician.

Although he had received some treatment,

his condition at the time of Hust’s

interrogation was stil! sufficiently serious

that he was in the intensive care unit. He

complained to Hust that the pain in his leg ~

*Otherwise proper interrogation techniques can

produce an involuntary confession where, “in the

particular circumstances of the case, the confession is

unlikely to have been the product of a free and rational

will.” (Miller v. Fenton, 474 U.S. 104, 110 (1985).)

23a

was “unbearable.” . . . Finally, while

Mincey was being questioned he was lying

on his back on a hospital bed, encumbered

by tubes, needles, and breathing apparatus.

He was, in short, “at the complete mercy”

of Detective Hust, unable to escape or resist

the thrust of i‘ust's interrogation.

Id. at 398 (footnote omitted). The Supreme Court

concluded: “It is hard to imagine a situation less conducive

to the exercise of ‘a rational intellect and a free will.’” /d.

The Court holds, as a matter of law, that plaintiffs

statement was coerced in clear violation of his

constitutional rights. Accordingly, plaintiff is entitled to

summary adjudication of his claims for violations of the

Fifth and Fourteenth Amendments. Moreover, because the

statement was obtained in violation of the Constitution, it

is not admissible at the trial of this case.

2. Claim for Violation of the Eighth Amend

Plaintiff contends that Chavez’s questioning of

plaintiff violated his Eighth Amendment right in two ways:

by being “deliberately indifferent” to his medical needs and

by inflicting “cruel and unusual” punishment. Although

plaintiff asserts an Eighth Amendment violation, it is clear

that because plaintiff was not a convicted inmate at the

time, the Eighth Amendment is inapplicable.

Instead, because plaintiff contends he was detained,

these claims are properly viewed as a claim for violation of

24a

the Due Process clause of the Fourteenth Amendment. See

Redman v. County of San Diego, 942 F.2d 1435, 1440 (9th

Cir. 1991) (“the due Process clause protects a pretrial

detainee from the use of excessive force that amounts to

punishment”). It is clear that deliberate indifference to a

detainee’s medical needs may rise to the level of a

Fourteenth Amendment violation. See id. at 1443.

However, because there is insufficient evidence to

establish that Chavez’s actions interfered with plaintiff's

treatment, plaintiff is not entitled to summary adjudication

of his claim for violation of the Eighth Amendment.

B. Plaintiff's S —

Plaintiff contends that his stop and detention

vithout a warrant violated his Fourth Amendment rights.

Defendants contend that they had “reasonable suspicion”

of illegal narcotics activity in the area and that plaintiff had

information about that activity based on his presence in an

enclosed area.’ Moreover, they contend that plaintiff

voluntarily consented to the search.

Law enforcement officers may detain a person for

the purpose of investigating possible criminal behavior

where “reasonable suspicion” of a crime exists.

Reasonable suspicion exists when officers are aware of

*It is undisputed that the area was not enclosed

although defendants were unaware of that fact at the time

they stopped plaintiff.

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facts which, taken together with rational inferences from

those facts, lead a reasonable person to believe that the

person stopped has been, is, or is about to be engaged in

criminal activity. See United States v. Thomas, 211 F.3d

1186, 1189 (9th Cir. 2000). In general, whether reasonable

suspicion existed is a question for the jury. See McKenzie

v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984).

Accordingly, “summary judgment is appropriate only if no

reasonable jury could find that the officers did or did not

have [reasonable suspicion].” /d.

The Court cannot conclude that no reasonable jury

could find that Pefia and Salinas did not have reasonable

suspicion sufficient to stop plaintiff. Pefia’s first-hand

knowledge of drug paraphernalia at the site, the report from

the neighbors of drug activity, and defendants’ mistaken

belief that the field was enclosed, create a genuine issue of

fact as to whether the defendants had reasonable suspicion

to stop plaintiff. Because a genuine issue of material fact

exists, plaintiff is not entitled to summary adjudication of

his claim for violation of the Fourth Amendment.

V. Qualified Immunity

At the hearing on plaintiff's motion, defendants

moved for summary adjudication of the issue of qualified

immunity for Chavez’s interview of plaintiff, which as

explained above, violated the Constitution. Because

neither party addressed the issue in briefing on plaintiff's

motion for summary adjudication, the Court ordered

supplemental briefing on the issue. After reviewing the

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parties’ submissions, the Court issues the following

decision:

Public officials exercising discretionary authority

are entitled to qualified immunity from suit where their

actions “[do] not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); see also Anderson v. Creighton, 483 U.S. 635, 638

(1987). In determining whether defendants are entitled to

qualified immunity, the Court must consider (1) whether

the plaintiffs have identified a specific federal statutory or

constitutional right that has been allegedly violated,

(2) whether that right was so clearly established as to alert

a reasonable official to its parameters, and (3) whether a

reasonable official could have believed his or her conduct

was lawful. See Sweany v. Ada County, Idaho, 119 F.3d

1385, 1388 (9th Cir. 1997).

Plaintiff points to Miranda v. Arizona, 384 U.S.

436 (1996), and Miller v. Fenton, 474 U.S. 104 (1985) to

support his argument that the contours of the Fifth

Amendment right to Miranda warnings and Fourteenth

Amendment bar against involuntary confessions were

sufficiently defined at the time of his questioning by

Chavez. Defendants agree that:

leading coercive custody decisions [forbid]:

examination after request for counsel;

examination after expression of a prompt,

unequivocal intent not to speak; multi-hour

examination; multi-officer presence in a

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police dominated environment; strong-arm

tactics, such as conjured fears, deprivations,

berating; and knowing attempts to abridge

the right against self-incrimination to

extract self-inculpatory data or leads.

(Def's Memo. 20:20-24.) In this case, many of the

forbidden practices delineated by defendants were engaged

in by Chavez during the interview.

Defendants argue that plaintiff never told Chavez to

leave or requested to be left alone. However, on several

occasions plaintiff told Chavez “I am not telling you

anything until they treat me,” and “I don’t want to say

anything anymore.” (Mercado Dec., Ex. 2, p. 6, 11.)

These statements clearly communicate plaintiff's “intent

not to speak.” Plaintiff's requests, made among many

other pleas for treatment, are sufficient to put a reasonable

officer on notice that plaintiff was not speaking voluntarily.

Defendants argue that a reasonable officer might

have thought a “ten-minute, seven-second examination”

did not violate the Constitution. Although plaintiff's

answers to Chavez’s questions may have produced only ten

minutes of tape recording, it is undisputed that the

interview was conducted intermittently for approximately

45 minutes. (McCormick Dec., Ex. F. Chavez Dec.,

126:12-13.) In light of the fact that plaintiff was suffering

excruciating pain and being prepared for emergency

surgery, forty-five minutes is an excessively lengthy

interview. The fact that Chavez returned to continue

questioning plaintiff after being repeatedly ushered out of

28a

the room by medical personnel exacerbates the coercive

nature of the interview.

Defendants contend that because Chavez did not

use strong-arm tactics such as physical violence or coercive

threats to elicit the statement, he is entitled to qualified

immunity. It is true that Chavez did not inflict pain on

plaintiff. The bullets fired from another officer’s gun into

plaintiff s head, abdomen and knee had inflicted ample

pain to overcome plaintiff's will. The Court cannot image

what Chavez or any other officer could do in an

interrogation room that would cause additional pain to one

who is blind because of a gunshot wound to the head and

paralyzed from another to his abdomen. Moreover, Chavez

repeatedly told plaintiff he was dying. Although plaintiff

also stated that he thought he was dying, reinforcement of

this fear from a police officer is psychologically coercive.

F inally, defendants argue that Chavez was not

attempting to abridge the right against self-incrimination to

extract self-inculpatory data or leads:

There was no point in Sgt. Chavez’s trying

to build a criminal case against a man who

was about to expire; plainly, there would

have been no one to prosecute. Even if he

had survived, as he in fact did, no

prosecutor would bring charges against a

person who had not succeeded in injuring

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the officers in any way and had himself

been gravely disabled.

(Def’s Memo. 12:3-7.) At the time Chavez was interview-

ing plaintiff, he had no knowledge of whether or not a

prosecutor would charge plaintiff if he survived.

Moreover, the Court has no statement from Chavez that he

did not believe plaintiff would ever be charged.

Defendants’ argument is speculative hindsight. At the time

he questioned plaintiff, Chavez believed that plaintiff had

attempted to shoot two police officers — a serious crime

indeed. Whatever decision would be reached later about

prosecution, the Court cannot conclude that Chavez would

not have investigated thoroughly this serious crime.

Moreover, because this was an officer-involved

shooting, Chavez was clearly trying to obtain information

that could clear the officers of Wrong-doing. Although this

information is not protected by the Fifth Amendment,

Chavez’s motivation was certainly not to assist plaintiff.

The law against coerced confessions was clearly

established at the time of plaintiff's interview. The Court

concludes that no reasonable officer would believe that an

interview of an individual receiving treatment for life-

threatening injuries that resulted in blindness, paralysis,

and excruciating pain was constitutionally permissible.

Moreover, plaintiff, on several occasions, told Chavez that

he did not want to talk; that he wanted to be treated. Given

the circumstances of plaintiff's interview and established

constitutional boundaries, the Court concludes that Chavez

is not entitled to qualified immunity.

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VI. Conclusion

Plaintiff's motion for summary adjudication, filed

June 5, 2000, is granted in part and denied in part. Plaintiff

is entitled to summary adjudication of his §1983 claims for

violation of the Fifth and Fourteenth Amendment based on

his questioning while in the hospital. Chavez is not

entitled to qualified immunity for interviewing plaintiff at

the hospital.

IT IS SO ORDERED. /s/ Florence-Marie Cooper

FLORENCE-MARIE COOPER, JUDGE

July 31,2000 UNITED STATES DISTRICT COURT

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APPENDIX C— ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DENYING THE PETITION FOR REHEARING

FILED DECEMBER 26, 2001

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLIVERIO MARTINEZ,

Case No. 00-56520

Plaintiff -

Appellee, D.C. No. CV-98-093 13-FMC

(Central Dist. Calif.)

Vv.

)

)

)

)

)

.

CITY OF OXNARD; +?)

OXNARD POLICE ) ORDER

DEPARTMENT; ART )

LOPEZ, Chief; MARIA)

PENA; ANDREW )

SALINAS; RON )

)

)

)

)

)

)

)

ZAVALA,

Defendants,

BEN CHAVEZ,

Defendant —

Appellant.

i i i

Before: WARDLAW, PAEZ and TALLMAN, Circuit

Judges.

The panel has voted to deny the Petitiun for

Rehearing and Suggestion for Rehearing En Banc. The full

court has been advised of the suggestion for rehearing en

banc and no active judge has requested a vote on whether

to hear the matter en banc. Fed. R. App. 35(b).

The Petition for Rehearing En Banc and Suggestion

for Rehearing En Banc is DENIED.