Appendix — Butts v. McNally

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ATTORNEYS FOR

Criminal. Justice; CriMiNAL

Courts Bar ASSOCIATION; JAMES

McNALLy; JAMES JOHNSON BEY,

Plaintiffs-Appellees,

Vv.

James T. Butts, City of Santa

Monica Chief of Police; THe City

OF SANTA Monica; Ray H.

Cooper; SHANE TALBOT,

Defendants-Appellants,

and

Wivuie L. Wittiams, Chief of

Police; City or Los ANGELES;

RAYMOND BENNETT; MICHAEL

Crossy,

Defendants.

>

CALIFORNIA ATTORNEYS FOR

CriMINAL JUSTICE,

Plaintiff,

and

James McNA ty; JAMES JOHNSON

Bey,

Plaintiffs-Appellees,

\ -

49

No. 97-56499

D.C. No.

CV-95-08634-ER

No. 97-56510

D.C. No.

CV-95-08634-ER

ORDER AND

AMENDED

OPINION

50 CALIFORNIA ATTORNEYS V. BuTTS

James T. Butts, City of Santa

Monica Chief of Police; THe City

OF SANTA Monica; Ray H.

Cooper; SHANE TALBOT; CiTy OF

Los ANGELES,

Defendants-Appellees,

Ww

Vv.

RAYMOND BENNETT; MICHAEL

Crossy,

Defendants-Appellants.

J

Appeals from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding

Argued and Submitted

December 7, 1998—Pasadena, California

Filed November 8, 1999

Amended January 3, 2000

Before: William C. Canby, Jr. and Sidney R. Thomas,

Circuit Judges, and William W Schwarzer," District Judge.

Opinion by Judge Canby; Partial Dissent and Concurrence

by Judge Schwarzer

‘The Honorable William W Schwarzer, Scnior United States District

Judge for the Northern District of California, sitting by designation.

CALIFORNIA ATTORNEYS V. BuTTS 55

COUNSEL

Marsha Jones Moutrie, City Attorney, Barbara Greenstein,

Deputy City Attomey, Santa Monica, California, Debra L.

Gonzales, Deputy City Attorney, Los Angeles, California, for

the defendants-appellants.

Charles D. Weisselberg, Supervising Attorney, Victoria

Wong, Law Student, Post-Conviction Justice Project, Univer-

sity of Southern California Law School, Los Angeles, Califor-

nia, for the plaintiffs-appellees.

Joc] E. Carey, Deputy Attorney General, Sacramento, Califor-

nia, for amicus State of California; Charles L. Hobson, Crimi-

nal Justice Legal Foundation, Sacramento, California, for

amicus Criminal Justice Legal Foundation; Devallis Rutledge,

Office of the District Attomey, Santa Ana, California, for

amicus California Coalition of Law Enforcement Associa-

tions; William J. Hadden, Silver, Hadden & Silver, Santa

Monica, California, for amici Peace Officers’ Legal Research

Association, Peace Officers’ Legal Research Association

Legal Defense Fund, Santa Monica Police Officers’ Associa-

tion, Los Angeles Police Protective League; Dilan A. Esper,

West Hollywood, California, National Legal Aid and

Defender Association; Mark A. Borenstein, Tuttle & Taylor,

Los Angeles, California, for amicus National Association of

Criminal Defense Lawyers.

ORDER

In the slip opinion filed in this case on November 8, 1999:

At page 13391, the second full sentence of the section enti-

tled “James McNally Interrogation” is amended to read as

follows:

A-3

56 CALIFORNIA ATTORNEYS V. BUTTS

The interview took place in a jail in Arizona and

lasted for over an hour.

At page 13397, the second full sentence of the first full

paragraph is amended to read as follows:

Los Angeles police interrogated him after he had

been handcuffed to a bench at the police station for

four hours.

With these amendments, the majority of the panel, as con-

stituted above, has voted to deny the petition for panel rehear-

ing. Judge Thomas has voted to deny the petition for

rehearing en banc, and Judge Canby has so recommended.

Judge Schwarzer has voted to grant the petition for panel

rehearing and recommends granting the petition for rehearing

en banc.

The petition for en banc rehearing has been_circulated to

the full court, and no judge of the court has requested a vote

on the petition for rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing and the petition for rehearing en

banc are denied.

OPINION

CANBY, Circuit Judge:

James McNally and James Bey, California state prisoners,

joined in bringing this civil rights action against the cities of

Los Angeles and Santa Monica, California, individual police

officers and their respective Chicfs of Police. See 42 U.S.C.

§ 1983. McNally and Bey complain that they were the victims

of a policy of the defendant police to defy the requirements

of Miranda vy. Arizona, 384 U.S. 436 (1966). The alleged pol-

A-4

CALIFORNIA ATTORNEYS Vv. BuTTS 57

icy, set forth in certain training programs and materials, was

to continue to interrogate suspects “outside Miranda” despite

the suspects’ invocation of their right to remain silent and

their requests for an attorney.

The district court denied the motions of individual defen-

dants James Butts, Jr., Shane Talbot, Ray Cooper, Raymond

Bennett and Michael Crosby, for summary judgment on the

ground of qualified immunity.’ Those officers have now

brought this interlocutory appeal challenging the denial of

immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

We affirm the order of the district court denying qualified

immunity.’

BACKGROUND

Miranda requires that, once “the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.”

Miranda, 384 U.S. at 473-74. “If the individual states that he

wants an attorney, the interrogation must cease until an attor-

ney is present.” /d. at 474. These commands are clear on their

face. Statements of an accused taken in violation of Miranda,

however, have been held admissible for purposes of impeach-

ment of a defendant who takes the stand and testifies inconsis-

tently with his prior statement. See Oregon v. Hass, 420 U.S.

714 (1975); Harris v. New York, 401 U.S. 222 (1971). The

policy of questioning “outside Miranda” appears to be based

on the proposition, which we reject, that Harris and Hass

7We reject the plaintiffs’ contention that defendant James Butts, the

Santa Monica Chicf of Police, did not scck qualificd immunity in the dis-

trict court and is thus not entitled to this appeal. The record indicates that

Butts did request qualificd immunity.

*The order of the district court denying summary judgment is unpub-

lished. The district court carlicr entered an order denying a motion to dis-

miss on the ground of qualificd immunity. That order is published. See

California Attorneys for Criminal Justice v. Butts, 922 F. Supp. 327 (C.D.

Cal. 1996).

A-5

58 CALIFORNIA ATTORNEYS V. BuTTs

negate the quoted imperatives of Miranda.‘ How the policy of

questioning “outside Miranda” worked in practice in these

two cases is best demonstrated by the transcripts of the taped

interview sessions with McNally and Bey.

James McNally Interrogation

Santa Monica detectives interrogated McNally about his

role in a brutal murder. The interview took place in a jail in

Arizona and lasted for over an hour. McNally was advised of

his Miranda rights and freely answered questions for a con-

siderable period of time. He did not deny having stabbed the

victim, but claimed that he had acted in self-defense. Eventu-

ally, the discussion focused on the degree of crime that might

be charged, and whether McNally would waive extradition.

At this point, the questioning took the following tum:

McNally: How ‘bout we do this? How ‘bout I'll

waive extradition. I'll go with “you’s.” Let me talk

to a California lawyer and we'll get back together.

D1:° You'll what?

McNally: Okay. I’m saying, “I'll waive extradition.

I'll go with “you’s”— no hassle, no problem... .

D: Okay. Under, understand . . . .

McNally: So...

“The defendants do not urge that their questioning of McNally and Bey

aficr they requested an attorney was justificd by cxigent circumstances.

There was, for example, no ticking bomb that had to be located. Cf New

York v. Quarles, 467 U.S. 649 (1984) (recognizing public safety exception

to Miranda).

*In the transcript, “D” is Detective Talbot; “D1” is Detective Cooper.

McNally is abbreviated “M” in the transcript but is spelled out here to aid

understanding.

A-6

CALIFORNIA ATTORNEYS V. BUTTS

59

D: . . . understand what happens when you get to

California — when you get your attorney. No attor-

ney in his right mind is gonna’ tell you talk with the

police.

McNally: Oh, I know ...

D: Justice works the same way as it does on the East

Coast.

McNally: No, I, I understand. I, I just wanna’ clarify

a couple things in my mind. I, I know that. I know

’ ”

a lawyer's not gonna’ tell me to talk to “you's.

D: Right.

McNally: I know that. Let me just talk to him about

a couple — you know, I know Pennsylvania Law

just ‘cuz I’ve been through it. I don’t know Califor-

nia Law. I don’t. . . let me talk to him a little bit and

we'll get back — I promise I'll get back together

, ”

with “you’s.

D: So, you don’t wanna’....

D1: You're not gonna tell us...

D: .. . you don’t wanna’ tell us what happened . . .

McNally: No...

D: ... now?

McNally: . . . not at this time. It’s, it’s too scary for

me right now. I’d, I'd rather talk to a lawyer.

D: Alright.

|

60 CALIFORNIA ATTORNEYS V. BuTTS

McNally: I’m not trying to impede your investiga-

tion.

D: No, I understand.

McNally: I'll with “you’s”. . . [sic]

D: I understand.

McNally: ...nohassle....

D: Okay, now, let me, Ict me explain to you what's

happened. You've basically invoked your Right to

have an attorney...

McNally: Right.

D: ... okay? At this point, nothing that you say can

be used against you in Court . . . in California

because you have invoked your Right to have an

attorney.

___ sd __McNally:Right- mecha

D: I still would like to know what happened now

because — well, I'll tell you where I come from. I

don’t trust anything that anybody tells me after

they've talked to an attomey and the D.A. that will

be working with us on this case doesn’t either.

So, basically, what they’ll do is they’ll play a

game of “what’s this case worth?” And they’ll do

“make, let’s make a deal type thing.”

McNally: I know.

D: What I wanna’ know from you now is what you

might tell me later so I know what you tell me later

A-8

he eeereceencencimesimatiiiiiiinsiiaiiaiideaiihiiee aie

CALIFORNIA ATTORNEYS V. BUTTS

61

is the same as what you’re gonna’ tell me now

because what you tell me later is gonna’ be on the

record.

D1: This is all on tape. This — what we’re tellin’

you. You’ve invoked your Rights. Everything from

this point on...

D: Cannot...

D1: .. . regarding this case cannot be uscd against

you. We’re, we’re making you the guarantee. It

won't... you know, even though its on tape... .

McNally: Shut that thing off then.

D: Well, this is the record of what you’re telling us.

You, we...

D1: Yeah. It’s also the record of you invoking your

Rights. You want an attorney . . . . which is fine ...

—D: And it’s — let me-explain te-you something else.

Basically, what this does is validate for you and for

the District Attorney that what you tell me now is

what you're gonna’ tell — hopefully, tell us later.

‘Cuz the evidence will bear out, I think, what I, !

already know.

So, once we start a tape, we don’t turn it off. If

you wanna’ turn off the tape then we stop the con-

versation and, and we'll go ahead....

Di: See...

D: . .. and do the process. I just wanted to explain

to you and I’m not trying to be “hard ass” about this.

It’s just the way I work. I know it’s the way the Dis-

A-9

Pept

62 CALIFORNIA ATTORNEYS V. BuTTS

trict Attorney that I’m working with, uh, Richard

Stone, works. We just — and if you were in our

place, would you trust something that somebody told

you after they talked to an attorney?

D1: It’s like “black mail” with attorneys, Man. We

know that.

D: I mean, I mean, first of all, if you could trust the

attorncy that you're working with he’s gonna’, and

if you can work and if you tell him the truth, he

gonna’ work with you somehow to make a better

deal, okay?

McNally: (no audible response).

D: They're, the deal is here. It’s up to them...

oe: ee

D: .. . it’s up to them to talk about it. The only thing

is, everything that falls after this — we’ll go in one

direction based on the physical evidence and the

Statements that we have. If we don’t have anything

to the contrary, that’s the direction we’re gonna’ go

and we're gonna’ push it.

McNally: Right.

D: Okay, and fuck your attorney. It’s just — I don’t

care about him anymore.

McNally: Yeah.

D: Okay. As far as I'm concerned, you know, they

really mess up the system. I wanna’ know now what

you're going to tell me later. It can’t be used against

you. We...

A-10

CALIFORNIA ATTORNEYS V. BuTTS

D1: This is your opportunity.

D: ... told you that.

D1: And it’s — this is your opportunity and it’s not

gonna’ be used against you. If you...

D: If you want, you can write it out and start it with

“The Detective told me this statement cannot be used

against me...” I’ll sign it and I’ll make a xerox

copy of it and you can have a xerox. It’s up to you.

I’m not tryin’ to trick you here.

(pause)

McNally: Alright. I'll. . . and this can’t be used

against me.

D1: No, absolutely. It’s right on there. It’s not —

we're promising you, it’s not gonna’ be used against

you — in the case in chief — against you, okay?

Just, this is for our edification of what happened.

McNally then proceeded to tell the detectives a very different,

and far more incriminating story.

At his trial, McNally moved to suppress his incriminating

statement, and the trial court granted the motion, prohibiting

the use of the statement cven for purposes of impeachment.

After McNally was convicted, however, the prosecutor uscd

the statement against McNally at sentencing to urge the court

to consider as an aggravating factor McNally’s assertions of

self-defense in contradiction of his statement to the police.

James Bey Interrogation

Bey was also suspected of a brutal murder. Los Angeles

police interrogated him after he had been handcuffed to a

A-11

64 CALIFORNIA ATTORNEYS V. BuTTs

bench at the police station for four hours. He was asked a few

questions about the matter before he was given his Miranda

wamings. Immediately thereafter, the following exchange

occurred:

Bey: Am I being charged with murder? If I’m being

charged with murder, then I won’t have another

word to say until I have an attorney.

D® : Is that — ah — your feelings? Do you — That’s

why I questioned you, do you wish to— ——

Bey: *** if you read me those rights, you must be

gonna charge me with something. So I'll wait and

see what happens. I won’t say another word until I

have an attorney. sy — -

D: Well, like you say yourself, James, you’re a sus-

pect.

Bey: Well, if I’m being charged with something, I’d

rather not have anything else to say until I have an

attorney.

D: Okay?

Let me explain something to you, James. I’m

going to continue to ask you questions. Now, you

realize that you didn’t waive your rights. That means

we can’t use ‘em in court.

U: I think James is familiar with out *** outside

Miranda. Are you familiar with that, James?

‘In the Transcript, “D” is Detective Bennett; “U” is an “unidentified

detective,” alleged clsewhere to be Detective Crosby. In the Transcript,

Bey is denoted as “B” but his namc is spelled out here for case of under-

standing. Unintclligible passages in the tape of interview are denoted in

the Transcript by asterisks: “***.”

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CALIFORNIA ATTORNEYS V. BuTTS

65

Bey: I don’t — I don’t know too much about the

law. I’m just telling you I know to keep my mouth

shut *** somebody to put me in jail.

D: Well, James, I’ll tell you what, there’s a lot of

physical evidence which doesn’t lie, James.

Do you know why we were so long before we got

here to talk to you?

~ Bey: No, I don’t. I know that you all were in my

apartment looking around. I don’t know what you

were looking for.

D: Not only looking around. We were in your apart-

~ ment with our what they call Scientific Investigation

Division people, or personnel. These are experts in

getting physical evidence.

Bey: Uh-huh.

D: And we got some very incriminating physical evi-

dence, my friend.

Bey: *2

D: Stuff that can’t be explained away.

Bey: Well, we’ll have to see what happens. But I’m

not gonna say nothing *** an attorney ***.

D: Why don’t you tell me what happened that night?

A-13

Thereafter, Bey admitted that the murder victim had been in

his apartment on the night she was killed, and that she had

previously “ripped him off” of smal! amounts of money. He

also made various other statements about the evening in ques-

tion, although he denied committing the murder. Bey stated in

66 CALIFORNIA ATTORNEYS V. BuTTs

his deposition that Detective Bennett appeared angry at times

during the interview, spoke loudly, made threatening gestures,

and adopted a “‘condemnatory” tone.

At trial, Bey testified and his statement was used to

impeach him. He was convicted of first degree murder. On

appeal, the state court of appeal, after reviewing the uncontra-

dicted evidence, stated: “We . . . are compelled to conclude

that under these circumstances, appellant’s statements were

coerced and involuntary, and should not have been introduced

to impeach his trial testimony.” People v. Bey, 27 Cal. Rptr.

2d 28, 31 (1993). The court held the error to be harmless,

however, and affirmed the conviction. /d. at 32.

DISCUSSION

There can be little question that the insistence of the above

interrogators on questioning after invocation of the right to

silence and unequivocal requests for counsel violated the

strictures of Miranda and did so intentionally. The defendants

contend, however, that they are nevertheless entitled to quali-

fied immunity because reasonable officers in their position

could have believed that their interrogation did not violate

“clearly established rights” of McNally and Bey. See

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). Their

contention is based on three propositions, all of which we

reject: (1) that McNally and Bey have not alleged violation of

a constitutional right; (2) that the right was not clearly estab-

lished, in light of subsequent qualifications of Miranda; and

(3) that the defendants could reasonably rely on training mate-

nals endorsing questioning “outside Miranda.” We address

these contentions in tum.

The Constitutional Right

[1] The first question is whether McNally and Bey have

alleged the violation of a constitutional right at all. See

County of Sacramento v. Lewis, 118 S. Ct. 1708, 1714 n.5

A-14

eee

CALIFORNIA ATTORNEYS V. BuTTS 67

(1998). The defendants contend that Miranda is a prophylac-

tic rule, not a constitutional right. In the narrowest sense, this

contention is correct: there is no constitutional right to the

Miranda warnings themselves. New York v. Quarles, 467 U.S.

649, 654 (1984). But Miranda rights are brigaded with the

right against sclf-incrimination and supply “ ‘practical rein-

forcement’ for the Fifth Amendment right.” /d. (quoting

Michigan v. Tucker, 417 U.S. 433, 444 (1974)). Indeed, the

connection between Miranda and the constitutional right

against self-incrimination is demonstrated by the fact that

Miranda reversed a state court judgment, even though the

Supreme Court observed that it “might not find the defen-

dants’ statements to have been involuntary in traditional

terms.” Miranda, 384 U.S. at 457. The Supreme Court has

continued to enforce Miranda in both direct and habeas cor-

pus revicw of state court judgments. See, e.g., Minnick v.

Mississippi, 498 U.S. 146 (1990) (direct review), Withrow v.

Williams, 507 U.S. 680 (1993) (habeas corpus). The Supreme

Court’s review of state judgments is confined, of course, to

constitutional issues; it has no power to cnforce mere supcrvi-

sory rules on the States. Mu’Min v. Virginia, 500 U.S. 415,

422 (1991). Thus Miranda cannot be viewed entircly apart

from the constitutional rights that it protects.

The defendants argue, however, that all of these cascs deal

with the admission of statements taken in violation of

Miranda; they do not deal with a right against questioning

apart from use of the statements at trial.’ It is very difficult,

however, to read Miranda that way:

’There is a certain perversity in this argument. The exclusionary rulc is

strong and unpleasant medicine that can kecp probative evidence from the

jury. The primary reason for employing the rulc, with all its disadvantages,

is that it is normally the most effective way to achicve the ovcrarching

goal of controlling police behavior that threatens the constitutional rights

of individuals. See, e.g., Elkins v. United States, 364 U.S. 206, 217-18

(1960). It makes no sensc to hold that othcr means of controlling police

bchavior ought not to be permiticd because the exclusionary rulc, though

incffective for the purpose, is in placc.

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68 CALIFORNIA ATTORNEYS V. BuTTs

Today, then, there can be no doubt that the Fifth

Amendment privilege is available outside of criminal

_ court proceedings and serves-to protect persons in

all settings in which their freedom of action is cur-

tailed in any significant way from being compelled

to incriminate themselves. We have concluded that

without proper safeguards the process of in-custody

interrogation of persons suspected or accused of

crime contains inherently compelling pressures

which work to undermine the individual’s will to

resist and to compel him to speak where he would

not otherwise do so freely. In order to combat these

pressures and to permit a full opportunity to exercise

the privilege against self-incrimination, the accused

must be adequately and effectively apprised of his

rights and the exercise of those rights must be fully

honored.

" Miranda, 384 U.S. at 467 (emphases added). This language

focuses on rights of individuals at interrogation.

In any event, we have squarely rejected the defendants’

contention in Cooper v. Dupnik, 963 F.2d 1220, 1251 (9th

Cir. 1992) (en banc). “It is wrong .. . to relegate [the warming

of the right to remain silent] to the status of ‘only a prophylac-

tic device’: It is a prophylactic device, but it expresses a sub-

Stantive right.” /d. at 1240. In Cooper, we rejected a claim of

qualified immunity asserted on behalf of officers who had

interrogated a suspect who was never tried. We held that the

request for an attorney is an “invocation of the substantive

right to remain silent.” Jd. We held that the decision to inter-

rogate Cooper despite his requests for an attorney, and to per-

sist until Cooper broke down (even though he never

confessed), was coercive and violated Cooper’s constitutional

rights. “It is irrelevant that Cooper’s coerced statements were

never introduccd against him at trial. The Task Force's

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CALIvORNIA ATTORNEYS V. Butts 69

wrongdoing was complete at the moment it forced Cooper to

speak.” /d. at 1237.

[2] The defendants seck to distinguish Cooper on the

ground that the nature of the questioning there was far more

intimidating and coercive than that directed at McNally and

Bey. They rely on Cooper’s point that a bare violation of

Miranda is not enough to sustain a claim under § 1983:

This case does not establish a cause of action where

police officers continuc to talk to a suspect after he

asserts his rights and where they do so in a benign

way, without coercion or tactics that compel him to

speak. What we do confront is a case laden with

police misconduct that is “identical with the histori-

cal practices [of incommunicado interrogation] at

which the right against sclf-incrimination was

aimed.”

Cooper, 963 F.2d at 1244 (emphasis added) (quoting Tucker,

417 U.S. at 444). But coercion has been claimed and the ques-

tion whether it occurred remains to be tried; the district court

held that McNally and Bey had raised a material issue of fact

on that point, and denied summary judgment.’ The district

court’s ruling is not surprising, in light of the fact that the

State trial court suppressed McNally’s statement even for

impeachment purposes, and the state appellate court expressly

concluded that Bey’s statement was coerced. The district

court was well aware of the distinction reflected in the above

quotation from Cooper, but it also recognized that a failure to

*Thus McNally’s and Bey’s claims are not defeated by the fact that their

slaicments may not have causcd them harm at their trials; they seek

redress for violations of their rights in the jail or stationhousc, not in the

courthouse.

*McNally and Bey moved for summary judgment on their claim; the

district court denicd the motion. That denial of summary judgment, of

course, Is not subjcct to inicrlocutory appeal and ts not before us. See 28

U.S.C. § 1291.

70 CALIFORNIA ATTORNEYS V. BUTTS

comply with Miranda can be viewed as an aggravation of

other coercive tactics. California Attys. for Criminal Justice

v. Butts, 922 F. Supp. 327, 336 & n.13 (C.D. Cal. 1996); see

Collazo v. Estelle, 940 F.2d 411, 418 (9th Cir. 1991). Indeed,

in recently holding a confession to have been coerced, we

placed great emphasis on the fact that officers had ignored a

request for counsel and had misrepresented that any statement

thereafter made could not be used in court. See Henry v.

Kernan, 177 F.3d 1152, 1158 (9th Cir. 1999). In any event,

the nature and effect of the defendants’ tactics in this case are

yet to be resolved by the trier of fact. To the extent that the

defendants’ claim of immunity depends upon unresolved and

genuine issues of fact, it is not appropriate for review on this

interlocutory appeal. See Johnson v. Jones, 515 U.S. 304,

319-20 (1995); Behrens v. Pelletier, 516 U.S. 299, 312-13

(1996).

The Right is Clearly Established

[3] To be “clearly established” for the purpose of overcom-

ing qualified immunity, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson, 483 U.S.

at 640. Miranda could scarcely be more clear in stating that,

once a suspect “indicates in any manner, at any time prior to

or during questioning, that he wishes to remain silent, the

interrogation must cease,” and that if he “states that he wants

an attorney, the interrogation must cease until an attorney is

present.” Miranda, 384 U.S. at 473-74 (cmphascs added). See

also Davis v. United States, 512 U.S. 452, 458 (1994); McNeil

v. Wisconsin, 501 U.S. 171, 176 (1991); Minnick, 498 U.S. at

152. The rule under these. decisions is unmistakable. As we

held in Cooper, “[t]here is no question that the Constitutional

holding in Miranda is ‘clearly established’ law.” Cooper, 963

F.2d at 1237."

"Defendants also point out that Cooper was the first case that allowed

recovery under § 1983 for intcrrogation “‘outsidc” Miranda. Accordingly,

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CALIFORNIA ATTORNEYS V. BuTTS 71

[4] There is equally no question that reasonable officers in

the defendants’ position would know that their actions vio-

lated McNally’s and Bey’s Miranda rights. McNally and Bey

both invoked their rights to speak to an attomey, in a manner

indicating that they did not want the interrogation to proceed

without such a consultation. The detectives deliberately

ignored these requests. Yet, “(t]he per se aspect of Miranda

was .. . based on the unique role the lawyer plays in the

adversary system of criminal justice in this country.” Fare v.

Michael C., 442 U.S. 707, 719 (1979). The detectives in

McNally’s case nevertheless attempted to discourage him

from secking counsel, implied that his situation would

become much worse if he spoke with an attorney, and assured

him that whatever he said could not be used against him in

any way. After telling McNally several times that anything he

said thereafter could not be used against him, one of the

detectives inserted “in the case in chief,” with no explanation

of what that term meant. This unexplained qualification,

which McNally has asserted he did not understand, cannot

overcome the many untrue and unqualified statements that

preceded it."

because Cooper was decided aficr these interrogations, the detectives

arguc that they werc not on noticc that their conduct was unconstitutional.

This argument misunderstands both Cooper and the qualificd immunity

analysis. First, in Cooper we did not establish that this conduct is uncon-

stitutional — we recognized it. We hcld that Cooper’s rights were clearly

established at the time of his interrogation in 1986 — ycars before the

interrogation of McNally and Bey. Cooper, 963 F.2d at 1237 (“Appellants

knew [in 1986] that they were violating the Constitution.”) Sccond, cven

without an analogous casc, the Supreme Court “and our casc law do not

require that degree of specificity.” Hyland v. Wonder, 117 F.3d 405, 412

(9th Cir. 1997), cert. denied, 118 S. Ct. 1166 (1998). It is not necessary

that a case has previously declared ihe very conduct in question unlawful.

We only require that the “unlawfulness must be apparent.” Id.; see also

Anderson, 483 U.S. at 640.

"We recognize that subterfuge may be used in interrogating suspects,

bul misstating the Icgal usc that can be made of thcir staicments is not a

permissible form of subtcrfuge. Miranda rcquircs that suspects be advised

that their statements can be uscd against them, see Miranda, 384 U.S. at

469; it can hardly countenance false advice that the statement cannot be

uscd against them.

A-19

72 CALirorNiA ATTORNEYS Vv. BuTTS

In Bey’s case, the interrogator told Bey that he was going

to continue to ask him questions after he asserted his right to

remain silent. He went on to advise Bey that because he didn’t

waive his rights, “[t]hat means we can’t use [any subsequent

Statements] in court.” Bey, 27 Cal. Rptr. 2d at 30. On appeal,

the state court found this to be a “very troubling case, present-

ing a deliberate police violation of Miranda coupled with a

misrepresentation to appcllant about the Icgal consequences

of that violation.” /d. In so continuing interrogation and mis-

informing McNally and Bey concerning the legal effects of

that interrogation, the defendants clearly violated the Miranda

imperatives, thereby creating a danger of coercion as well as

a presumption of it. See Oregon v. Elstad, 470 U.S. 298, 307

n.1 (Miranda violation creates legal presumption of coercion).

Nearly identical conduct was onc of the major factors Icading

us to find a confession involuntary in Henry, 177 F.3d at

1157.

The defendants contend they could not have known that

their conduct violated clearly established rights because of the

Supreme Court’s rulings that statements taken in violation of

the Miranda safeguards may be used for purposes of

impeachment. See e.g., Oregon v. Hass, 420 U.S. 714, 723-24

(1975); Harris v. New York, 401 U.S. 222, 226 (1971). They

also rely on Tucker, in which the Court permitted the testi-

mony of a witness who had been identified by the defendant

in an interview preceded by incomplete advice of his rights.

See Tucker, 417 U.S. at 438; but see Mincey v. Arizona, 437

U.S. 385, 398 (1978) (“involuntary” statements not allowed

for any purpose). Thus, the defendants argue that they could

reasonably believe that it was lawful to continue to press their

interrogation, with misleading assurances that any further

Statements made by McNally or Bey could not be used against

them.

Harris and Tucker arc easily distinguished from the present

case; both involved intcrrogations that preceded the decision

in Miranda. \n Tucker, the Supreme Court relicd on that

A-20

CALIFORNIA ATTORNEYS V. BUTTS 73

point, as well as on the fact that the police had acted “in com-

plete good faith.” Tucker, 417 U.S. at 447. The interrogation

in Hass did succeed Miranda, however; the defendant was

being driven to the police station, was given Miranda warn-

ings, and said he wanted to call a lawyer. He was told he

could do so when they arrived, but there was further conver-

sation about the crime during the rest of the trip.. Hass, 420

U.S. at 715-17. The defendant’s statements were held to be

admissible for impeachment. /d. at 723-24. Hass did not

appear, however, to involve a conscious decision to continue

interrogation in the hope of obtaining impeachment evidence.

That officers might so behave was described as a “speculative

possibility,” but in any event the Court determined to follow

Harris and permit use of the statement for impeachment. Id.

at 723.

[5] The Supreme Court has never suggested, however, that

these decisions dealing with the periphcral use of statements

obtained in violation of Miranda somehow overcame

Miranda's imperatives concerning proper police procedure.

Indeed, the Court has on several occasions, after Harris,

Tucker, and Hass, restated those imperatives. In Fare v.

Michael C., for example, the Court said:

Whatever the defects, if any, of this relatively

rigid requirement that interrogation cease upon the

accused’s request for an attorney, Miranda’s holding

has the virtue of informing police and prosecutors

with specificity as to what they may do in conduct-

ing custodial interrogation, and of informing courts

under what circumstances statements obtained dur-

ing such interrogation are not admissible.

Fare, 442 U.S. at 718. The Supreme Court later canvassed the

Miranda progeny in Edwards v. Arizona, 451 U.S. 477

(1981), stating:

We reconfirm these views and, to lend them sub-

stance, emphasize that it is inconsistent with

A-21

74 CALIFORNIA ATTORNEYS V. BUTTS

Miranda and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if he

has clearly asserted his right to counsel.

Id. at 485. Again, in Arizona v. Roberson, 486 U.S. 675

(1988), the Court observed that “[t]he Edwards rule thus

serves the purpose of providing ‘clear and unequivocal’

guidelines to the law enforcement profession.” /d. at 682. See

also Davis, 512 U.S. at 458; McNeil, 501 U.S. at 177;

Minnick, 498 U.S. at 151.

[6] These cases indicate that there has been no weakening

in Miranda's mandates to protect the rights of suspects during

custodial interrogation. See, e.g., Michigan v. Mosley, 423

U.S. 96, 99 (1975) (Miranda promulgated “safeguards to pro-

tect the . . . constitutional rights of persons subjected to custo-

dial police interrogation.”). In the face of these clear and

unequivocal directions, reasonable officers in the position of

defendants would have understood that they were violating

the rights of McNally and Bey in interrogating them in the

manner that they did. “Any minimally trained police officer

should have known such pressure was improper and likely to

produce involuntary statements.” Henry, 177 F.3d at 1158.

Reliance on Training and Training Materials

[7] The defendants next contend that their reliance on train-

ing and training materials cntitIles them to qualificd immunity.

The district court rejected this argument holding that

“following orders” will only insulate officers from liability

when “reliance is objectively reasonable.” Butts, 922 F. Supp.

at 338. The court concluded that a “rcasonable person could

not reconcile the alleged practice of ignoring the assertion of

Miranda rights with the commands of Miranda, and hence,

reliance on the alleged policy cannot be objectively

reasonable.” Jd.; see also Grossman v. City of Portland, 33

F.3d 1200, 1209 (9th Cir. 1994) (“[I]ndividuals cannot always

A-22

" r " a 7

Te ee ee Pe ee ee Oe ge ie ae ee Pe ae at

CauivoRNiA ATTORNEYS Vv. BuTTs 75

be held immune for the results of their official conduct simply

because they were enforcing policies or orders... .”).

[8] The fact that Los Angeles and Santa Monica may have

trained their police to violate the rights of individuals does not

provide any defense for these officers. Their policy contra-

dicts the safeguards provided by Miranda, and, at the very

least, is in direct conflict with Cooper. Contrary to the asser-

tions by the defendants, Cooper did not sanction this tech-

nique:

The primary aggravating circumstance is the Task

Force's purpose of making it difficult, if not impos-

sible, for a charged suspect to take the stand in his

own defense — as Taylor said, “to help keep him off

the stand.” By forcing Cooper to talk in the police

station, the officers hoped to prevent him from being

able to do so in the courtroom. We note that their

purpose was not just to be able to impeach him if he

took the stand and lied, but to keep him off the stand

altogether. This tactic corrupts the doctrine {the

impeachment exception] established in Harris.

Cooper, 963 F.2d at 1249 (emphases added) (analyzing

whether the police conduct “shocks the conscience”). Further-

more, training officers that inadmissible statements may nev-

ertheless be used for impeachment purposes hardly sanctions

this tactic of routinely and intentionally ignoring requests to

speak to an attorney. For all of the reasons set forth in the pre-

ceding section of this opinion, a reasonable police officer

should have known that this conduct was improper and vio-

lated the rights of McNally and Bey, whether or not the con-

duct was endorsed by training materials. Moreover, these

officers had discretion over their interrogation methods. Their

training did not require officers to interrogate “outside

Miranda.” They acted at their own election.

A-23

76 CaviForNiA ATTORNEYS ¥. Butts

CONCLUSION

[9] The issue in this case is limited to whether these offi-

cers are entitled to qualified immunity as a matter of law.

Accepting the facts as presented by McNally and Bey, as we

must on summary judgment, see Behrens, 516 U.S. at 312-13,

we conclude that the district court correctly ruled that the

defendants were not entitled to qualified immunity. Officers

who intentionally violate the rights protected by Miranda

must expect to have to defend themselves in civil actions.

The order of the district court denying summary judgment

on the ground of qualified immunity is

AFFIRMED.

SCHWARZER, Senior District Judge, Dissenting and Con-

curring:

I respectfully dissent as to plaintiff James Bey and concur

in the judgment as to plaintiff James McNally. Anderson v.

Creighton, 483 U.S. 635 (1987), tells us that the discretionary

acts of government officials are protected by qualified immu-

nity unless

the right the official is alleged to have violatcd .. .

{has} been ‘clearly established.’ The contours of the

right must be sufficiently clear that a reasonable offi-

cial would understand that what he is doing violates

that right. . . . [That] is to say that in the light of r

existing law the unlawfulness must be apparent.

Id. at 640. In determining the validity of the qualified immu-

nity claim, therefore, we must look at the state of the law at

the time the conduct complained of occurred. See Doe v. Pet-

aluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir. 1995)

A-24

tas .

a aT ed art aa ry Te ei

aS Ce AN ee eet

CALIFORNIA ATTORNEYS V. Butts 77

(qualified immunity upheld because right of action under Title

IX not clearly established until Supreme Court so decided,

subsequent to the complained of conduct).

I. BEY

The majority rests its decision on the proposition that

“fo]fficers who intentionally violate the rights protected by

Miranda [[by] insistence . . . on questioning after invocation

of the right to silence and unequivocal requests for counsel]

must expect to have to defend themsclves in civil actions.”

Op. at 76. Plaintiff James Bey was interrogated on March 8,

1991, by Officers Raymond Bennett and Michael Crosby. On

February 6, 1991, one month earlicr, a panel of this court

decided Cooper v. Dupnik, 924 F.2d 1520 (9th Cir. 1991)

(Cooper I), rev'd en banc, 963 F.2d 1220 (9th Cir. 1992)

(Cooper II). Cooper had brought a § 1983 action against

police officers and others alleging various violations of his

constitutional rights in connection with his interrogation while

in custody. The opinion states that “Cooper contends that his

continued interrogation, following his clear and unequivocal

request to contact his attorney is a patent violation of the

constitution.” /d. at 1526. It then goes on to firmly reject this

contention, reversing the denial of qualificd immunity, stat-

ing:

Although there is no case on point from our circuit,

all out-of-circuit cases hold that a plaintiff may not,

as matter of law, maintain a section 1983 action

based upon the failure by the police to issue Miranda

warnings. [Citations omitted.] . . . These cases are

not precisely on point, since in the instant case the

police gave the Miranda warnings but refused to

allow Cooper to exercise his rights. But the reason-

ing of these cases does apply—since Miranda

requirements are not a constitutional prerequisite,

their violation cannot form the basis of a section

1983 suit... . Cooper can cite to no case allowing

A-25

ee

78 CALIFORNIA ATTORNEYS V. BuTTS

a section 1983 suit under the circumstances of his

case.

Id. at 1527-28."

Moreover, the Supreme Court had repeatedly held prior to

March 1991 that Miranda’s warning requirement is not a dic-

tate of the Fifth Amendment. Thus, in Connecticut v. Barrett,

479 U.S. 523 (1987), the Court said:

It remains clear, however, that this prohibition on

further questioning—like other aspects of Miranda—

is not itself required by the Fifth Amendment’s pro-

hibition on coerced confessions, but is instead justi-

fied only by reference to its prophylactic purpose.

[Citation omitted.] By prohibiting further interroga-

tion after the invocation of these rights, we erect an

auxiliary barrier against police coercion.

Id. at 528. See also Michigan v. Tucker, 417 U.S. 433, 444

(1974) (finding “these procedural safeguards were not them-

selves rights protected by the Constitution but were instead

measures to insure that the right against compulsory sclf-

incrimination was protected”); New York v. Quarles, 467 U.S.

649, 653 & n.3 (1984) (because Miranda is only a

“prophylactic” rule, the Court considered a threat to public

safety and acknowledged some “limited circumstances whcre

the judicially imposed strictures of Miranda are

inapplicable”); Duckworth v. Eagan, 492 U.S. 195, 201-03

(1989) (telling a suspect that an attorncy will only be

appointed if and when the suspect gocs to trial does not render

the notice constitutionally inadequate because the warnings

mandated by Miranda are “procedural safeguards” and

“prophylactic,” not requiring administration in any cxact

The dissenting opinion did not take issuc with this rcasoning but read

the allegations of the complaint as stating a claim for violation of rights

secured by the Fifth, Sixth and Fourteenth Amendments. /d. at 1538.

A-26

v tenn!

Spe ee eee

Oi Ne PRES II GY STS Pe NF a ne aN

CALIFORNIA ATTORNEYS V. BuTTs 79

form); Michigan v. Harvey, 494 U.S. 344, 350-51 (1990)

(admitting a statement made without counsel and “not subject

lo proper Miranda” for impeachment purposes because the

violations alleged “relate only to procedural safeguards”).

Similarly, the Ninth Circuit prior to March 1991 did not rec-

ognize Miranda warnings as a cognizable constitutional right.

“Miranda violations do not abridge the Fifth Amendment con-

stitutional privilege against self-incrimination, but instead

involve prophylactic standards laid down to safeguard that

privilege.” United States y. Patterson, 812 F.2d 1188, 1193

(9th Cir. 1987).

In declaring that “continued interrogation after-a defendant

invokes his Miranda right to counsel does not violate the Fifth

Amendment,” Cooper, 924 F.2d at 1528, and “that a violation

of Miranda rights is not itself a violation of the constitution,”

Id. at 1527, the opinion in Cooper I was consistent with prior

Supreme Court and Ninth Circuit law as it stood in 1991.

Thus, the rationale of the majority opinion—that the officers

violated a clearly established constitutional right by question-

ing Bey after he invoked his right to silence—cannot stand.’

Bey argues, however, that this case is not about violation of

the Miranda rules, but about coercion in violation of the Fifth

Amendment. The question remains whether in 1991 there was

clearly established law that the officers’ interrogation violated

the Fifth Amendment, i.e., when they continued the interroga-

tion despite the suspect’s repeated attempts to invoke his

Miranda rights, asserted that they could not use his statements

in court, and claimed that they possessed incriminating physi-

cal evidence. Op. at 66-67. It is not enough for the court sim-

ply to say that such interrogation tactics may be found to be

"Jt is truce that in Cooper II, the court found that the officers knew in

1986 that they were violating the Constitution. 963 F.2d at 1237. Apari

from the fact that the conduct involving Bcy was substantially different

from that involved in Cooper, the officers in Cooper did not have before

them a court of-appcals opinion rendered the preceding month that told

them that violation of the Miranda rulcs was not a constitutional violation

that could support a § 1983 claim.

A-27

eee eenenneetensceeateendier mii

80 CALIFORNIA ATTORNEYS V. Butts

coercive; for qualified immunity to be overcome, the law to

that effect must be clearly established. The majority’s reliance

on the Miranda rules on this issue is a bootstrap argument for,

as noted, those rules do not establish a constitutional right.

The Court’s statement in Anderson v. Creighton, 483 U.S.

635 js apposite: “[I]f the test of ‘clearly established law’ were

to be applied at this level of generality, it would bear no rela-

tionship to the ‘objective legal reasonableness’ that is the

touchstone of Harlow[v. Fitzgerald, 457 U.S. 800 (1982)].”

Id. at 639. Anderson requires that “in the light of pre-existing

law the unlawfulness must be apparent.” /d. at 640. Because

there was no such law in 1991, defendants’ qualified immu-

nity motion as to Bey’s claims should have been granted.

II. McNALLY

Plaintiff James McNally was interrogated by Officers Ray

Cooper and Shane Talbot on March 2, 1993. Cooper II had

been decided on May 5, 1992, ten months earlier. In Cooper

II, an en banc panel of this court reversed Cooper I and found

interrogation “that was involuntary because it was actively

compelled and coerced by law-enforcement officers during

in-custody questioning” can form the basis for a § 1983 action

against the police officers who interrogated him. Cooper, 963

F.2d at 1243. The limits of Cooper II’s holding, as relevant

to this case, are encapsulated in the following statement:

“This case does not establish a cause of action where police

officers continuc to talk to a suspect after he asscrts his rights

and where they do so in a benign way, without coercion or

tactics that compel him to speak.” /d. at 1244. It is plain,

therefore, that Cooper II does not establish law that supports

the majority opinion’s broad rationale that “the insistence of

the . . . interrogators on questioning after invocation of the

right to silence and uncquivocal requests for counsel violated

the strictures of Miranda” and thereby barred qualified immu-

nity. Op. at 66. Before a constitutional violation can be found,

there must be more than a Miranda infraction—there must be

A-28

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need, BE hs ah Lic as OER! Piss oko ae

We iis Set ek ae nce Soe oR Seite ira Be ay Pe ot 9)

CALIFORNIA ATTORNEYS V. Butts 81

coercive tactics that compel the suspect to speak in violation

of the Fifth Amendment. /d. at 1243-1244.

The question is what tactics, in 1993, were clearly estab-

lished by law to be coercion violating the Fifth Amendment.

The majority summarizes the conduct of the officers as

“attempt[ing] to discourage [McNally] from seeking counsel,

impl[ying]} that his situation would become much worse if he

spoke with an attorney, and assur[ing] him that whatever he

said could not be used against him in any way.” Op. at 71.’

In July 1991, this court held substantially similar questioning

of a suspect to be coercion violating the Fifth Amendment.

Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) (en banc).

The critical colloquy between Detective Destro and defendant

Collazo, after Collazo asked if he could speak with a lawyer,

went as follows:

Destro:—Once you get a lawyer, he’s gonna say for-

get it. You know, don’t talk to the police.

Then it might be worse for you.

*Note that Bey’s case is different, both on its facts and on its timing.

The officers interrogating Bey in 1991 did not denigrate the role of coun-

scl or threaten Bey with harsher treatment as a result of his invocation of

his right to remain silent. In contrast, in McNally’s interrogation, the

detectives repeatedly indicatcd they would not trust McNally if he chose

to consult a lawyer:

Detective: —[{YJou have invoked your right to have an attorney.

McNally: —Right.

Detective: —I still would like to know what happened now

becausc—well, I'll tcll you where I come from. I don’t trust any-

thing that anybody tclls me aficr they’ vc talked to an attorncy and

the D.A. that will be working with us on this case doesn’t cither.

The detectives went on to demcan the role of counsel at Icast four more

limes, saying attorncys “really mess up the system,” “fuck your attorney,”

“it's like black mail with attomcys, man,” and “would you trust somcthing

that somebody told you aftcr they talked to an aitorncy?” McNally pro-

ceeded to confess to the murder.

A-29

82 CALIFORNIA ATTORNEYS V. BUTTS

Collazo:—Pardon me?

Destro:—Then it might be worse for you.

Id. at 414.* The court held that “‘demean[ing] the pretrial role

of counsel,” id. at 418, in an “attempt to discourage Collazo

from speaking to a lawyer,” id. at 416, “I[eading] Collazo to

believe he could reap some legal benefit by excluding defense

attorneys from the pre-trial process,” id. at 418, and

“attempt[ing] in the police station to impose a penalty on Col-

lazo’s choice to remain silent amount{[ecd] to a scrious

infringement of Collazo’s Fifth Amendment right.” Jd. at 417.

The court concluded that “Officer Destro’s overreaching

behavior violated not only Miranda, but also the general Con-

Stitutional prohibition against cocrcive interrogation practices

likely to result in involuntary responses.” /d. at 419.

Because it was clearly established, prior to McNally’s

interrogation, that denigrating the role of counsel and threat-

ening to impose a penalty on a suspect's exercise of his Fifth

Amendment rights constitutes coercion violating the Fifth

Amendment, Officers Cooper and Talbot are not entitled to

qualified immunity. I therefore concur in the judgment affirm-

ing the denial of qualified immunity.

“It was clearly established law in 1993 that a detective during intcrroga-

tion cannot threaten a suspect with harsher treatment as a result of a sus-

pect’s decision to remain silent and not cooperate. See United States v.

Tingle, 658 F.2d 1332, 1336, n.5 (9th Cir. 1981) (“[I]t is permissible for

an interrogating officer to represent, under some circumstances, that the

fact that the defendant cooperates will be communicatcd to the proper

authonilics, the samc cannot be said of a representation that a defendant's

failure to coopcrate will be communicated to a prosccutor. Refusal to

coopcraic is cvcry defendant’s right under the fifth amendmeni.”). See

also United States v. Guerrero, 847 F.2d 1363, 1366 & n.2 (9th Cir. 1988)

(noting that recommendations of Icnicncy as a result of cooperation arc

appropriatc, but “threatening to inform the prosccutor of a suspect's

rcfusal to coopcratc violates her fifth amendment right to remain silcnt.”).

A-30

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ATTORNEYS FOR

CriMINAL JuSTICE; CRIMINAL

Courts Bar ASSOCIATION; JAMES

McNALLY; James Joiinson Bey,

Plaintiffs-Appellees,

Vv.

James T. Butts, City of Santa

Monica Chief of Police; Tue City

OF SANTA Monica; Ray H.

Cooper; SHANE TALBOT,

Defendants-Appellants,

and

Wiruie L. Wittiams, Chief of

Police; Ciry oF Los ANGELES;

RAYMOND BENNETT; MICHAEL

Crossy,

Defendants.

-

y,

CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE,

Plaintiff,

JAMES McNALLy; JAMES JOHNSON

Bey,

Plaintiffs-Appellees,

V.

‘

13383

A-31

No. 97-56499

D.C. No.

CV-95-08634-ER

No. 97-56510

D.C. No.

CV-95-08634-ER

OPINION

13384 CALIFORNIA ATTORNEYS V. Butts

James T. Butts, City of Santa

Monica Chief of Police; THe City

OF SANTA Monica; Ray H.

Cooper; SHANE TALBOT; CiTy OF

Los ANGELES,

Defendants-Appellees,

- 2

Vv.

RAYMOND BENNETT; MICHAEL

Crossy,

Defendants-Appellants.

J

Appcals from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding

Argued and Submitted

December 7, 1998—Pasadena, California

Filed November 8, 1999

Before: William C. Canby, Jr. and Sidney R. Thomas,

Circuit Judges, and William W Schwarzcr,' District Judge.

Opinion by Judge Canby; Partial Dissent and Concurrence

by Judge Schwarzer

‘The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

A-32

CALIFORNIA ATTORNEYS Vv. BUTTS 13389

COUNSEL

Marsha Jones Moutrie, City Attorney, Barbara Greenstein,

Deputy City Attorney, Santa Monica, California; Debra L.

Gonzales, Deputy City Attorney, Los Angeles, California, for

the defendants-appcllants.

Charles D. Weisselberg, Supervising Attorney, Victoria

Wong, Law Student, Post-Conviction Justice Project, Univer-

sity of Southern California Law School, Los Angeles, Califor-

nia, for the plaintiffs-appellees.

Joel E. Carey, Deputy Attorney General, Sacramento, Califor-

nia, for amicus State of California; Charles L. Hobson, Crimi-

nal Justice Legal Foundation, Sacramento, California, for

amicus Criminal Justice Legal Foundation; Devallis Rutledge,

Office of the District Attorney, Santa Ana, California, for

amicus California Coalition of Law Enforcement Associa-

tions; William J. Hadden, Silver, Hadden & Silver, Santa

Monica, California, for amici Peace Officers’ Legal Research

Association, Peace Officers’ Legal Research Association

Legal Defense Fund, Santa Monica Police Officers’ Associa-

tion, Los Angeles Police Protective League; Dilan A. Esper,

West Hollywood, California, National Legal Aid and

Defender Association; Mark A. Borenstein, Tuttle & Taylor,

Los Angeles, California, for amicus National Association of

Criminal Defense Lawyers.

OPINION

CANBY, Circuit Judge:

James McNally and James Bey, California state prisoners,

joined in bringing this civil rights action against the cities of

Los Angeles and Santa Monica, California, individual police

officers and their respective Chiefs of Police. See 42 U.S.C.

A-33

13390 CALirorNiA ATTORNEYS v. BuTTs

§ 1983. McNally and Bey complain that they were the victims

of a policy of the defendant police to defy the requirements

of Miranda v. Arizona, 384 U.S. 436 (1966). The alleged pol-

icy, set forth in certain training programs and maitcrials, was

to continue to interrogate suspects “outside Miranda” despite

the suspects’ invocation of their right to remain silent and

their requests for an attorney.

The district court denied the motions of individual defen-

dants James Butts, Jr., Shane Talbot, Ray Cooper, Raymond

Bennett and Michael Crosby, for summary judgment on the

ground of qualified immunity.” Those officers have now

brought this interlocutory appeal challenging the denial of

immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

We affirm the order of the district court denying qualified

immunity.’

BACKGROUND

Miranda requires that, once “the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must ccase.”

Miranda, 384 U.S. at 473-74. “If the individual states that he

wants an attorney, the interrogation must ccasc until an attor-

ney is present.” /d. at 474. These commands are clear on their

face. Statements of an accused taken in violation of Miranda,

however, have been held admissible for purposes of impeach-

ment of a defendant who takes the stand and testifies inconsis-

tently with his prior statement. See Oregon v. Hass, 420 U.S.

*We reject the plaintiffs’ contention that defendant James Butts, the

Santa Monica Chief of Police, did not seck qualified immunity in the dis-

trict court and is thus not entitled to this appeal. The record indicates that

Butts did request qualificd immunity.

*The order of the district court denying summary judgment is unpub-

lished. The district court carlicr entered an order denying a motion to dis-

miss on the ground of qualificd immunity. That order is published. See

California Attorneys for Criminal Justice v. Butts, 922 F. Supp. 327 (C.D.

Cal. 1996).

A-34

BESTAVAILAI

Caumorsin Artorxeys v. Butts 1339]

714 (1975); Harris v. New York, 401 U.S. 222 (1971). The

policy of questioning “outside Miranda” appears to be based

on the proposition, which we reject, that Harris and Hass

negate the quoted imperatives of Miranda.’ How the policy of

questioning “outside Miranda” worked in practice in these

two Cases is best demonstrated by the transcripts of the taped

interview sessions with McNally and Bey.

James McNally Interrogation

Santa Monica detectives interrogated McNally about his

role ina brutal murder. The interview took place in a jail in

Anzona and lasted for several hours. McNally was advised of

his Miranda rights and frecly answered questions for a con-

siderable period of time. He did not deny having stabbed the

victim, but claimed that he had acted in self-defense. Eventu-

ally, the discussion focused on the degree of crime that might

he charged, and whether McNally would waive extradition.

At this point, the questioning took the following turn:

MeNally: How ‘bout we do this? How ‘bout I'll

waive extradition. I'll go with “you's.” Let me talk

to a California lawyer and we'll get back together.

Dis You'll wha?

MeNally: Okay. I'm saying, “I'll waive extradition.

Pil go with “you's"— no hassle, no problem .

“the defendants do not urge that their questioning of McNally and Bey

after they requested an attorney was justificd by cxigent circumstances.

There was. for example. no licking bomb that had to be located. Cf. New

derke Quarles, 467 US 649 (19K4) (recognizing public safety exception

ter Meresmneder).

*in the transcript, “D" is Detective Talbot; “DI is Detective Cooper.

MeNally es abbreviated °M”" in the transcript but is spelled out here to aid

understanding.

A-35

13392 CaLworNiA ATIORNEYS ¥. Boris

D: Okay. Under, understand... .

McNally: So...

D: . . . understand what happens when you get to

California — when you get your attorney. No altor-

ney in his right mind is gonna’ tcll you talk with the

police.

McNally: Oh, I know...

D: Justice works the same way as it does on the East

Coast.

McNally: No, I, | understand. |, I just wanna’ clarify

a couple things in my mind. I, I know that. | know

a lawycr’s not gonna’ tcll me to talk to “you's.”

D: Right.

McNally: I know that. Let me just talk to him about

a couple — you know, I know Pennsylvania Law

just ‘cuz I've been through it. | don’t know Calilor-

nia Law. I don’t... let me talk to him a little bit and

we'll get back — I promise I'll get back together

with “you's.”

D: So, you don’t wanna’... .

Dutt iplaisk iccibcaater iheiaseksik i Ueto ae oa Coe bata oe ed es ae OT TE

D1: You're not gonna tell us...

D: ... you don’t wanna’ tell us what happened . . :

f

McNally: No... :

D: ... now?

McNally: . .. not at this time. It’s, it’s too scary for

me right now. I'd, I'd rather talk to a lawyer.

A-36

Carmorsia Attorneys v. Butts 13393

D: Alright.

McNally: I'm not trying to impede your investiga-

lion.

D: NT understand.

McNally: Fil with “you's”... [sic]

D: | understand.

McNally: ... no hassle... .

D: Okay, now, Ict me, Iet me explain to you what's

happened. You've basically invoked your Right to

have an attomey.. .

McNally: Right.

D: .. . okay? At this point, nothing that you say can

be uscd against you in Court . . . in California

because you have invoked your Right to have an

atlomcy.

McNally: Right.

D: I still would like to know what happened now

because — well, I'll tell you where | come from. |

don't trust anything that anybody tclls me after

they've talked to an attorney and the D.A. that will

be working with us on this case doesn't cither.

So, basically, what they'll do is they'll play a

game of “what's this case worth?” And they'll do

“muke, let's make a deal type thing.”

McNally: I know.

A-37

13394 CaAuiroRNia ATTORNEYS v. BuTis

D: What I wanna’ know from you now is what you

might tcll me later so | know what you tcll me later

is the same as what you're gonna’ tcll me now

because what you tcll me later is gonna’ be on the

record.

D1: This is all on tape. This — what we're tcllin’

you. You've invoked your Rights. Everything from

this pointon...

D: Cannot...

DI: .. . regarding this case cannot be uscd aguinst

you. We'rc, we're making you the guarantee. It

won't... you know, even though its on tape... .

McNally: Shut that thing off then.

D: Well, this is the record of what you're tclling us.

You, we...

—_ — — — ———

D1: Yeah. It’s also the record of you invoking your

Rights. You want an attorney .... which ts fine...

D: And it’s — let me explain to you somcthing clsc.

Basically, what this does is validute for you and for

the District Attorney that what you tcll me now ts

what you're gonna’ tcll — hopefully, tcll us later.

‘Cuz the evidence will bear out, | think, what I, |

already know.

So, once we start a tape, we don’t tum it off. If

you wanna’ turn olf the tape then we stop the con-

versation und, and we'll go ahead ....

Di: See...

D: . . . and do the process. I just wanted to explain

to you and I'm not trying to be “had ass” about this.

A-38

Carmornia ATTORNEYS v. BuTTs 13395

It’s just the way I work. I know it’s the way the Dis-

trict Attorney that I'm working with, uh, Richard

Stone, works. We just — and if you were in our

place, would you trust something that somebody told

you after they talked to an attorney?

DI: It's like “black mail” with attorneys, Man. We

know that.

D: I mean, I mean, first of all, if you could trust the

attomcy that you're working with he’s gonna’, and

if you can work and if you tcll him the truth, he

gonna’ work with you somchow to make a better

deal, okay?

McNally: (no audible response).

D: They're, the deal is here. It’s up to them...

DI: ¢

D:... it’s up to them to talk about it. The only thing

is, everything that falls after this — we'll go in one

direction bascd on the physical evidence and the

statements that we have. If we don’t have anything

to the contrary, that’s the direction we're gonna’ go

and we're gonna’ push it.

McNally: Right.

D: Okay, and fuck your attorney. It’s just — I don’t

carc ubout him anymore.

McNally: Ycuh.

D: Okay. As far as I'm concerned, you know, they

rcally mess up the system. | wanna’ know now what

A-39

13396 CALWORNIA ATTORNEYS V. Butts

you're going to tcll me later. It can’t be used against

you. We...

D1: This is your opportunity.

D: ... told you that.

D1: And it’s — this is your opportunity and it’s not

gonna’ be uscd aguinst you. If you...

D: If you want, you can write it oul and start it with

“The Detective told me this statement cannot be used

against mc... .” I'll sign it and I'll make a xcrox

copy of it and you can have a xerox. It’s up to you.

I’m not tryin’ to trick you here.

(pausc)

“McNally: Alright. I'll... and this can't be used

against me.

ial <MEM otncd races cankeia ncaa ek ease

D1: No, absolutcly. It's right on there. It's not —

we're promising you, it’s not gonna’ be used aguinst

you — in the case in chicl — aguinst you, okay?

Just, this is for our edification of what happened.

McNally then proceeded to tell the deicctives a very different,

and far more incriminating story.

sate ite

3

At his trial, McNally moved to suppress his incriminating

statement, and the trial court granted the motion, prohibiting

the use of the statement even for purposes of impeachment.

After McNally was convicted, however, the prosccutor uscd

the statement against McNally at senicncing to urge the court

to consider as an aggravaling factor McNally’s asscrtions of

self-defense in contradiction of his statcment to the police.

ph ies dS Pig Mase we oe —,

rah Ine iia pen ahs BRIS Eto 9

A-40

Cauuornia Attorneys v. Butts 13397

James Bey Interrogation

Bey was also suspected of a brutal murder. Los Angeles

police interrogated him while he was handcuffed to a bench

at the police station. He was asked a few questions about the

maticr before he was given his Miranda wamings. Immedi-

utcly thereafter, the following exchange occurred:

Bey: Am I being charged with murder? If I’m being

charged with murder, then I won't have another

word to say until | have an attorney.

D* : Is that — ah — your feclings? Do you — That’s

why I questioned you, do you wish to—

Bey: *** if you read me those rights, you must be

gonna charge me with somcthing. So I'll wait and

sce what happens. I won't say another word until I

have an attorney.

D: Well, like you say yourself, James, you're a sus-

pect.

Bey: Well, if I'm being charged with something, I'd

rather not have anything clse to say until I have an

allorncy.

D: Okay?

Let me explain something to you, James. I’m

going to continue to ask you questions. Now, you

realize that you didn't waive your rights. That means

we can't usc ‘em in court.

*In the Transcript, “D" is Detective Bennett; “U" is an “unidentified

Uctective,” alleged elsewhere to be Detective Crosby. In the Transcript,

Rey is denoted as “B™ but his name is spelled out here for case of under-

standing. Unintclligible passages in the tape of interview are denoted in

the Transcript by asterisks: “***,"

A-4]

13398 CALIFORNIA ATTORNEYS V. Burts

U: I think James is familiar with out *** outside

Miranda. Are you familiar with that, James?

Bey: I don’t — I don’t know too much about the

law. I'm just tclling you | know to kecp my mouth

shut *** somebody to put me in jail.

D: Well, James, I'll tell you what, there's a lot of

physical evidence which docsn’'t lic, James.

Do you know why we werc so long before we gol

here to talk to you?

Bey: No, I don’t. I know that you all were in my :

apartment looking around. I don't know what you

were looking for. Z

>

:

D: Not only looking around. We were in your upurt- 2

ment with our what they call Scientific Investigation s

Division people, or personnel. These are experts in A

getting physical evidence.

Eee tote a ces

nuptlecdogee j~

~ -_" en

elie Rc es ot ek a ge

Bey: Uh-huh.

D: And we got some very incriminating physical cvi-

dence, my fricnd.

pey: ***

D: Stuff that can’t be explained away.

Bey: Well, we'll have to sce what happens. But I’m

not gonna say nothing *** an allorncy ***.

D: Why don’t you tell me what happencd that night?

Thereafter, Bey admiticd that the murder victim had been in

his apartment on the night she was killed, and that she had

A-42

CaAuwornia ATTORNEYS Vv. BuTTs 13399

previously “ripped him off’ of small amounts of money. He

also made various other statements about the evening in ques-

tion, although he denicd committing the murder. Bey stated in

his deposition that Detective Bennett appeared angry at times

during the interview, spoke loudly, made threatening gestures,

and adopted a “condemnatory” tone.

At trial, Bey testificd and his statement was used to

impeach him. He was convicted of first degree murder. On

appeal, the state court of appeal, after reviewing the uncontra-

dicted evidence, stated: “We . . . are compelled to conclude

that under these circumstances, appcllant’s statements were

coerced and involuntary, and should not have been introduced

to impeach his trial testimony.” People v. Bey, 27 Cal. Rptr.

2d 28, 31 (1993). The court held the error to be harmless,

however, and affirmed the conviction. /d. at 32.

DISCUSSION

There can be little question that the insistence of the above

interrogators on questioning after invocation of the right to

silence and unequivocal requests for counsel violated the

strictures of Miranda and did so intentionally. The defendants

contend, however, that they are nevertheless entitled to quali-

ficd immunity because reasonable officers in their position

could have belicved that their interrogation did not violate

“clearly cstablished rights" of McNally and Bey. See

Anderson vy. Creighton, 483 U.S. 635, 638-39 (1987). Their

conicntion is bascd on three propositions, all of which we

reject: (1) that McNally and Bey have not alleged violation of

a constitutional right; (2) that the right was not clearly estab-

lished, in light of subsequent qualifications of Miranda; and

(3) that the defendants could reasonably rely on training mate-

rials endorsing questioning “outside Miranda.” We address

these contentions in tum.

The Constitutional Right

[1] The first question is whether McNally and Bey have

alleged the violation of a constitutional right at all. See

A-43

13400 CALIFORNIA ATTORNEYS Vv. BuTTs

County of Sacramento v. Lewis, 118 S. Ct. 1708, 1714 n.5

(1998). The defendants contend that Miranda is a prophylac-

tic rule, not a constitutional right. In the narrowest sensc, this

contention is correct: there is no constitutional right to the

Miranda warnings themsclves. New York v. Quarles, 467 U.S.

649, 654 (1984). But Miranda rights are brigadced with the

right against sclf-incrimination and supply “ ‘practical rcin-

forcement’ for the Fifth Amendment right.” /d. (quoting

Michigan v. Tucker, 417 U.S. 433, 444 (1974)). Indeed, the

connection between Miranda and the constitutional right

against self-incrimination is demonstrated by the fact that

Miranda reversed a state court judgment, cven though the

Supreme Court observed that it “might not find the defen-

dants’ statements to have been involuntary in traditional

terms.” Miranda, 384 U.S. at 457. The Supreme Court has

continued to enforce Miranda in both dircct and habeas cor-

pus review of state court judgmenis. See, e.g., Minnick v.

Mississippi, 498 U.S. 146 (1990) (direct review); Withrow v.

Williams, 507 U.S. 680 (1993) (habeus corpus). The Supreme

Court’s review of state judgments is confined, of coursc, to

constitutional issues; it has no powcr to enforce mere supervi-

sory rules on the States. Mu’Min v. Virginia, 500 U.S. 415,

422 (1991). Thus Miranda cannot be viewed entirely apart

from the constitutional rights that it protccts.

The defendants argue, however, that all of these cases deal

with the admission of statements taken in violation of

Miranda; they do not deal with a right against qucstioning

apart from usc of the statements at trial.’ lt is very difficult,

however, to read Miranda that way:

’There is a certain perversity in this argument. ‘The exclusionary rule is

strong and unplcasant medicine that can kecp probative evidence from the

jury. The primary rcason for employing the rulc, with all its disadvantages,

is that it is normally the most cffective way to achieve the overarching

goal of controlling police behavior that threatens the constitutional rights

of individuals. See, e.g., Elkins v. United States, 364 U.S. 206, 217-18

(1960). It makes no sensc to hold that other means of controlling police

bchavior ought not to be permittcd because the exclusionary rule, though

ineffective for the purpose, is in place.

A-44

CaLiFORNIA ATTORNEYS Vv. BuTTs 13401

Today, then, there can be no doubt that the Fifth

Amendment privilege is available outside of criminal

court proceedings and serves to protect persons in

all settings in which their freedom of action is cur-

tailed in any significant way from being compelled

to incriminate themsclves. We have concluded that

7 without proper safeguards the process of in-custody

interrogation of persons suspected or accused of

crime contains inherently compelling pressures

which work to undermine the individual’s will to

resist and to compel him to speak where he would

not otherwise do so freely. In order to combat these

pressures and to permit a full opportunity to exercise

the privilege against self-incrimination, the accused

must be adequatcly and effectively apprised of his

rights and the exercise of those rights must be fully

honored.

Miranda, 384 U.S. at 467 (emphases added). This language

focuses on rights of individuals at interrogation.

In any event, we have squarely rejected the defendants’

contention in Cooper v. Dupnik, 963 F.2d 1220, 1251 (9th

Cir. 1992) (cn banc). “It is wrong . . . to relegate [the warning

of the right to remain silent] to the status of ‘only a prophylac-

lic device’: It is a prophylactic device, but it expresses a sub-

stantive right.” /d. at 1240. In Cooper, we rejected a claim of

qualificd immunity assericd on behalf of officers who had

intcrrogated a suspect who was never tricd. We held that the

request for an altorncy is an “invocation of the substantive

right to remain silent.” /d. We held that the decision to inter-

rogate Cooper despite his requests for an attorney, and to per-

sist. until Cooper broke down (even though he never

confessed), was coercive and violated Cooper’s constitutional

rights. “It is irrelevant that Cooper’s coerced statements were

never introduced against him at trial. The Task Force’s

A-45

ee

13402 CALIFORNIA ATTORNEYS V. ButTTs

wrongdoing was complete at the moment it forced Cooper to

speak.” Jd. at 1237.

{2] The defendants seek to distinguish Cooper on the

ground that the nature of the questioning there was far morc

intimidating and coercive than that directed at McNally and

Bey. They rely on Cooper's point that a bare violation of

Miranda is not enough to sustain a claim under § 1983:

This case does not establish a cause of action where

police officers continue to talk to a suspect after he

asserts his rights and where they do so in a benign

way, without coercion or tactics that compel him to

speak. What we do confront is a case laden with

police misconduct that is “identical with the histori-

cal practices [of incommunicado interrogation] at

which the right against self-incrimination was

aimed.”

Cooper, 963 F.2d at 1244 (emphasis added) (quoting Tucker.

417 U.S. at 444). But coercion has been claimed and the ques-

tion whether it occurred remains to be tried; the district coun

held that McNally and Bey had raised a material issue of fact

on that point, and denied summary judgment.® The district

court’s ruling is not surprising, in light of the fact that the

state trial court suppressed McNally’s statement cven for

impeachment purposes, and the state appellate court expressly

concluded that Bey’s statement was coerced. The district

court was well aware of the distinction reflected in the above

quotation from Cooper, but it also recognized that a failure to

*Thus McNally's and Bcy’s claims are not defcatcd by the fact that their

statements may_not have caused them harm at their trials; they scck

redress for violations of their rights in the jail or stationhouse, not in the

courthouse.

®McNally and Bey moved for summary judgment on their claim; the

district court denicd the motion. That denial of summary judgment, of

course, is not subject to interlocutory appeal and is not before us. See 28

U.S.C. § 1291.

A-46

CALitoRNIA ATTORNEYS Vv. BuTTS 13403

comply with Miranda can be viewed as an aggravation of

other coercive tactics. California Attys. for Criminal Justice

v. Butts, 922 F, Supp. 327, 336 & n.13 (C.D. Cal. 1996); see

Collazo v. Estelle, 940 F.2d 411, 418 (9th Cir. 1991). Indeed,

in recently holding a confession to have been coerced, we

placed great cmphasis on the fact that officers had ignored a

request for counscl and had misrepresented that any statement

thereafter made could not be used in court. See Henry v.

Kernan, 177 F.3d 1152, 1158 (9th Cir. 1999). In any cvent,

the nature and cffect of the defendants’ tactics in this case are

yct to be resolved by the trier of fact. To the extent that the

defendants’ claim of immunity depends upon unresolved and

genuine issucs of fact, it is not appropriate for review on this

interlocutory appeal. See Johnson v. Jones, 515 U.S. 304,

319-20 (1995); Behrens v. Pelletier, 516 U.S. 299, 312-13

(1996).

The Right is Clearly Established

13} To be “clearly established” for the purpose of overcom-

ing qualificd immunity, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson, 483 U.S.

at 640. Miranda could scarcely be more clear in stating that,

Once a suspect “indicates in any manner, at any time prior to

or during questioning, that he wishes to remain silent, the

interrogation must cease,” and that if he “states that he wants

un atlorncy, the interrogation must cease until an attorney is

present.” Miranda, 384 U.S. at 473-74 (emphascs added). See

also Davis v. United States, 512 U.S. 452, 458 (1994): McNeil

v. Wisconsin, 501 U.S. 171, 176 (1991); Minnick, 498 U-S. at

152. The rule under these decisions is unmistakable. As we

— ———held in-Cowper, “|therc is no-question that the Constitutional

holding in Miranda is ‘clearly established’ law.” Cooper, 963

F.2d at 1237."

"Defendants also-point out-that- Cooper-was the first-case that allowed

recovery under § 1983 for intcrrogation “outside” Miranda. Accordingly,

A-47

13404 CALirtoRNiIA ATTORNEYS Vv. BuTTs

[4] There is equally no question that reasonable officers in

the defendants’ position would know that their actions vio-

lated McNally’s and Bey’s Miranda rights. McNally and Bey

both invoked their rights to speak to an attorney, in a manner

indicating that they did not want the interrogation to procecd

without such a consultation. The detectives delibcratcly

ignored these requests. Yet, “[t]he per se aspect of Miranda

was .. . based on the unique role the lawyer plays in the

adversary system of criminal justice in this country.” Fare v.

Michael C., 442 U.S. 707, 719 (1979). The detectives in

McNally’s case nevertheless attempted to discourage him

from seeking counsel, implied that his situation would

become much worse if he spoke with an attomey, and assured

him that whatever he said could not be used against him in

any way. After telling McNally several times that anything he

said thereafter could not be used against him, one of the

detectives inserted “in the case in chief,” with no explanation

of what that term meant. This unexplained qualification,

which McNally has asserted he did not understand, cannot

overcome the many untrue and unqualified statements that

preceded it."

because Cooper was decided after these interrogations, the detectives

arguc that they were not on notice that their conduct was unconstitutional.

This argument misunderstands both Cooper and the qualificd immunity

analysis. First, in Cooper we did not establish that this conduct is uncon-

stitutional — we recognized it. We held that Cooper's nghts were clearly

established at the time of his interrogation in 1986 — ycars before the

interrogation of McNally and Bey. Cooper, 963 F.2d at 1237 (“Appellants

knew [in 1986] that they were violating the Constitution.”) Second, even

without an analogous casc, the Supreme Court “and our case law do not

require that degree of specificity.” //yland v. Wonder, 117 F.3d 405, 412

(9h Cir. 1997), cert. denied, 118 S. Ct. 1166 (1998). It is not necessary

that a casc has previously declared the very conduct in question unlawful.

We only require that the “unlawfulness must be apparent.” /d.; see also

Anderson, 483 U.S. at 640.

"We recognize that subterfuge may be used in interrogating suspects,

bul misstating the legal use that can be made of their statements is not a

permissible form of subterfuge. Miranda requires that suspects be advised

that their statements can be used against them, see Miranda, 384 U.S. at

469; it can hardly countenance false advice that the statement cannot be

uscd against them.

A-48

CaALivorNiA ATTORNEYS v. Butts 13405

In Bcy’s case, the interrogator told Bey that he was going

to continuc to ask him questions after he asserted his right to

remain silent. He went on to advise Bey that because he didn’t

waive his rights, “[t}hat means we can’t use [any subsequcnt

statements] in court.” Bey, 27 Cal. Rptr. 2d at 30. On appeal,

the state court found this to be a “very troubling case, preseni-

ing a delibcrate police violation of Miranda coupled with a

misreprescntation to appellant about the legal consequences

of that violation.” /d. In so continuing interrogation and mis-

informing McNally and Bey concerning the Icgal effects of

that interrogation, the defendants clearly violated the Miranda

imperatives, thereby creating a danger of coercion as well as

a presumption of it. See Oregon v. Elstad, 470 U.S. 298, 307

n.1 (Miranda violation creates legal presumption of cocrcion).

Nearly identical conduct was onc of the major factors Icading

us to find a confession involuntary in Henry, 177 F.3d at

1157.

The defendants contend they could not have known that

their conduct violated clearly established rights because of the

Supreme Court's rulings that statements taken in violation of

the Miranda safeguards may be used for purposcs of

impeachment. See e.g., Oregon v. Hass, 420 U.S. 714, 723-24

(1975); Harris v. New York, 401 U.S. 222, 226 (1971). They

ulso rely on Zucker, in which the Court permitted the testi-

mony of a witness who had been identified by the defendant

in an interview preceded by incomplete advice of his rights.

See Tucker, 417 U.S. at 438; but see Mincey v. Arizona, 437

U.S. 385, 398 (1978) (“involuntary” statements not allowed

for any purposc). Thus, the defendants arguc that they could

reasonably believe that it was lawful to continue to press their

interrogation, with misleading assurances that any further

statements made by McNally or Bey could not be used against

them.

Harris and Tucker are casily distinguished from the present

case; both involved interrogations that preceded the decision

in Miranda. In Tucker, the Supreme Court relied on that

A-49

13406 CALivORNIA ATTORNEYS V. Burts

point, as well as on the fact that the police had acted “in com-

plete good faith.” Tucker, 417 U.S. at 447. The interrogation

in Hass did succeed Miranda, however, the defendant was

being driven to the police station, was given Miranda wam-

ings, and said he wanted to call a lawyer. He was told he

could do so when they arrived, but there was further conver-

sation about the crime during the rest of the trip. Hass, 420

U.S. at 715-17. The defendant's statements were held to be

admissible for impeachment. /d. at 723-24. Hass did not

appear, however, to involve a conscious decision to continuc

interrogation in the hope of obtaining impeachment evidence.

That officers might so behave was described as a “speculative

possibility,” but in any event the Court determined to follow

Harris and permit use of the statement for impeachment. /d.

at 723.

[5] The Supreme Court has never suggested, however, that

these decisions dealing with the peripheral use of statements

obtained in violation of Miranda somchow overcame

Miranda's imperatives conceming proper police proccdurc.

Indeed, the Court has on several occasions, after /farris,

Tucker, and Hass, restated those imperatives. In Fare \.

Michael C., for example, the Court said:

Whatever the defects, if any, of this relatively

rigid requirement that interrogation cease upon the

accused’s request for an attorney, Miranda's holding

has the virtue of informing police and prosecutors

with specificity as to what they may do in conduct-

ing custodial interrogation, and of informing courts

under what circumstances statements obtained dur-

ing such interrogation are not admissible.

Fare, 442 U.S. at 718. The Supreme Court later canvassed the

Miranda progeny in Edwards v. Arizona, 451 U.S. 477

(1981), stating:

We reconfirm these views and, to Iend them sub-

stance, emphasize that it is inconsistent with

A-50

ee

CALIWwORNIA ATTORNEYS V. BUTTS 13407

Miranda and its progeny for the authoritics, at their

instance, to rcintcrrogate an accuscd in custody if he

has clearly asscried his right to counsel.

Id. at 485. Again, in Arizona v. Roberson, 486 U.S. 675

(1988), the Court observed that “[t}he Edwards rule thus

serves the purpose of providing ‘clear and unequivocal’

guidclines to the law enforcement profession.” /d. at 682. See

also Davis, 512 U.S. at 458; McNeil, 501 U.S. at 177;

Minnick, 498 U.S. at 151.

{6] These cascs indicate that there has been no weakening

in Miranda's mandates to protect the rights of suspects during

custodial intcrrogation. See, e.g., Michigan v. Mosley, 423

U.S. 96, 99 (1975) (Miranda promulgated “safeguards to pro-

tcct the . . . constitutional rights of persons subjected to custo-

dial police interrogation.”). In the face of these clear and

uncquivocal dircctions, reasonable officers in the position of

defendants would have understood that they were violating

the rights of McNally and Bey in interrogating them in the

manner that they did. “Any minimally trained police officer

should have known such pressure was improper and likcly to

produce involuntary statements.” Henry, 177 F.3d at 1158.

Reliance on Training and Training Materials

[7] The defendants next contend that their reliance on train-

ing and training materials entitles them to qualified immunity.

The district. court rejected this argument holding that

“following orders” will only insulate officers from liability

when “rcliance is objectively reasonable.” Butts, 922 F. Supp.

ut 338. The court concluded that a “reasonable person could

not reconcile the alleged practice of ignoring the assertion of

Miranda rights with the commands of Miranda, and hence,

rchance on the alleged policy cannot be objectively

reasonable.” /d.; see also Grossman vy. City of Portland, 33

F.3d 1200, 1209 (9th Cir. 1994) (“[I]ndividuals cannot always

A-5]

13408 CALIFORNIA ATTORNEYS Vv. Butts

be held inimune for the results of their official conduct simply

because they were enforcing policies or orders ... .”).

[8] The fact that Los Angeles and Santa Monica may have

trained their police to violate the rights of individuals docs not

provide any defense for these officers. Their policy contra-

dicts the safeguards provided by Miranda, and, at the very

least, is in direct conflict with Cooper. Contrary to the asscr-

tions by the defendants, Cooper did not sanction this tech-

nique: _

The primary aggravating circumstance is the Task

Force's purpose of making it difficult, if not impos-

sible, for a charged suspect to take the stand in his

own defense — as Taylor said, “to help keep him off

the stand.” By forcing Cooper to talk in the police

Station, the officers hoped to prevent him from being

able to do so in the courtroom. We note that thcir

purpose was not just to be able to impeach him if he

took the stand and lied, but to keep him off the stand

altogether. This tactic corrupts the doctrine |the

impeachment exception] established in //arris.

Cooper, 963 F.2d at 1249 (emphases added) (analyzing

whether the police conduct “shocks the conscience”). Further-

more, training officers that inadmissible statements may nev-

ertheless be used for impeachment purposes hardly sanctions

this tactic of routinely and intentionally ignoring requests to

speak to an attorney. For all of the reasons set forth in the pre-

ceding section of this opinion, a reasonable police officer

should have known that this conduct was improper and vio-

lated the rights of McNally and Bey, whether or not the con-

duct was endorsed by training materials. Morcover, these

officers had discretion over their interrogation methods. Their

training did not require officers to interrogate “outside

Miranda.” They acted at their own election.

A-52

CALwwOoRNIA ATTORNEYS V. BuTTs 13409

ats CONCLUSION

{9} The issue in this case is limited to whether these offi-

cers are entitled to qualified immunity as a matter of law.

Accepting the facts as presented by McNally and Bey, as we

must On summary judgment, see Behrens, 516 U.S. at 312=13,

we conclude that the district court correctly ruled that the

defendants were not entitled to qualified immunity. Officers

who intentionally violate the rights protected by Miranda

must cxpect to have to defend themselves in civil actions.

The order of the district court denying summary judgment

on the ground of qualified immunity is

AFFIRMED.

SCHWARZER, Scnior District Judge, Dissenting and Con-

curring:

I respectfully dissent as to plaintiff James Bey and concur

in the judgment as to plaintiff James McNally. Anderson v.

Creighton, 483 U.S. 635 (1987), tells us that the discretionary

ucts of government officials are protected by qualificd immu-

nity unless

the right the official is alleged to have violated... .

[has] been ‘clearly established.’ The contours of the

right must be sufficiently clear that a reasonable of fi-

cial would understand that what he is doing violates

that right. . . . [That] is to say that in the light of pre-

cxisting law the unlawfulness must be apparent.

Id. at 640. In determining the validity of the qualified immu-

nity claim, therefore, we must look at the state of the law ut

the time the conduct complained of occurred. See Due v. Pet-

dluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir. 1995)

A-53

13410 CALIFORNIA ATTORNEYS Vv. Butts

(qualified immunity upheld because right of action under Title

IX not clearly established until Supreme Court so decided,

subsequent to the complained of conduct).

I. BEY

The majority rests its decision on the proposition that

“lo]fficers who intentionally violate the rights protected by --

Miranda [[by] insistence . . . on questioning aficr invocation

of the right to silence and unequivocal requests for counscl]

must expect to have to defend themsclves in civil actions.”

Op. at 13409. Plaintiff James Bey was interrogated on March

8, 1991, by Officers Raymond Bennett and Michacl Crosby.

On February 6, 1991, one month earlicr, a pancl of this court

decided Cooper v. Dupnik, 924 F.2d 1520 (9th Cir. 1991)

(Cooper I), rev'd en banc, 963 F.2d 1220 (9th Cir. 1992)

(Cooper Il). Cooper had brought a § 1983 action against

police officers and others alleging various violations of his

constitutional rights in connection with his interrogation while

in custody. The opinion states that “Cooper contends that his

continued interrogation, following his clear and uncquivocal

request to contact his attorney is a patent violation of the

constitution.” /d. at 1526. It then goes on to firmly reject this

contention, reversing the denial of qualificd immunity, stat-

ing:

Although there isto case on point from our circuit,

all out-of-circuit cases hold that a plaintiff may not,

as matter of law, maintain a section 1983 action

based upon the failure by the police to issuc Miranda

warnings. [Citations omitted.] . . . These cases are

not precisely on point, since in the instant case the

police gave the Miranda warnings but refused to

allow Cooper to exercise his rights. But the rcason-

ing of these cases docs apply—since Miranda

requirements are not a constitutional prerequisite,

their violation cannot form the basis of a scction

1983 suit. . . Cooper can cite to no case allowing

A-54

ee

CALIFORNIA ATTORNEYS v. Butts 13411

a section 1983 suit under the circumstances of his

case.

\ Id. at 1527-28."

Morcover, the Supreme Court had repeatedly held prior to

March 1991 that Miranda’s warning requirement is not a dic-

tate of the Fifth Amendment. Thus, in Connecticut v. Barrett,

479 U.S. 523 (1987), the Court said:

It remains clear, however, that this prohibition on

further questioning—like other aspects of Miranda—

is not itself required by the Fifth Amendment’s pro-

hibition on coerced confessions, but is instead justi-

fied only by reference to its prophylactic purpose.

[Citation omitted.] By prohibiting further interroga-

lion after the invocation of these rights, we ercct an

auxiliary barrier against police coercion.

Id. at 528. See also Michigan v. Tucker, 417 U.S. 433, 444

(1974) (finding “these procedural safeguards were not them-

selves rights protected by the Constitution but were instcad

measures to insure that the right against compulsory self-

incrimination was protected”); New York v. Quarles, 467 U.S.

649, 653 & n.3 (1984) (because Miranda is only a

“prophylactic” rule, the Court considered a threat to public

safety and acknowledged some “limited circumstances where

the judicially imposed strictures of Miranda are

inapplicable”); Duckworth v. Eagan, 492 U.S. 195, 201-03

(1989) (tclling a suspect that an attorncy will only be

appointed if and when the suspect goes to trial does not render

the notice constitutionally inadequate because the warnings

mandated by Miranda are “procedural safeguards” and

“prophylactic,” not requiring administration in any cxact

‘The dissenting opinion did not take issuc with this reasoning but read

the allcgations of the complaint as stating a claim for violation of rights

secured by the Fifth, Sixth and Fourtccnth Amendmenis. /d. at 1538.

A-55

13412 CALIFORNIA ATTORNEYS Vv. Butts

form); Michigan v. Harvey, 494 U.S. 344, 350-51 (1990)

(admitting a statement made without counsel and “not subject

to proper Miranda” for impeachment purposes because the

violations alleged “relate only to procedural safeguards”).

Similarly, the Ninth Circuit prior to March 1991 did not rec-

ognize Miranda wamings as a cognizable constitutional right.

“Miranda violations do not abridge the Fifth Amendment con-

stitutional privilege against sclf-incrimination, but instead

involve prophylactic standards laid down to safeguard that

privilege.” United States v. Patterson, 812 F.2d 1188, 1193

(9th Cir. 1987).

In declaring that “continued interrogation after a defendant

invokes his Miranda right to counsel does not violate the Fifth

Amendment,” Cooper, 924 F.2d at 1528, and “that a violation

of Miranda rights is not itself a violation of the constitution,”

Id. at 1527, the opinion in Cooper | was consistent with prior

Supreme Court and Ninth Circuit law as it stood in 1991.

Thus, the rationale of the majority opinion—that the officers

violated a clearly established constitutional right by question-

ing Bey after he invoked his right to silence—cannot stand.”

Bey argues, however, that this case is not about violation of

the Miranda rules, but about coercion in violation of the Fifth

Amendment. The question remains whether in 1991 there was

clearly established law that the officers’ interrogation violated

the Fifth Amendment, i.e., when they continued the interroga-

tion despite the suspect’s repeated attempts to invoke his

Miranda rights, asserted that they could not use his statements

in court, and claimed that they possessed incriminating physi-

cal evidence. Op. at 13399-400. It is not enough for the court

simply to say that such interrogation tactics may be found to

"It is truc that in Cooper II, the court found that the officers knew in

1986 that they were violating the Constitution. 963 F.2d at 1237. Apart

from the fact that the conduct involving Bey was substantially different

from that involved in Cooper, the officers in Cooper did not have before

them a court of appeals opinion rendered the preceding month that told

them that violation of the Miranda rulcs was not a constitutional violation

that could support a § 1983 claim.

A-56

eC

CauivorniA ATTORNEYS Vv. Butts 13413

be coercive; for qualificd immunity to be overcome, the law

to that effect must be clearly established. The majority’s rcli-

ance on the Miranda rules on this issue is a bootstrap argu-

ment for, as noted, those rules do not establish a constitutional

right. The Court’s statement in Anderson v. Creighton, 483

U.S. 635 is apposite: “[I]f the test of ‘clearly established law’

were to be applicd at this level of gencrality, it would bear no

relationship to the ‘objective Icgal reasonableness’ that is the

touchstone of Harlow|[v. Fitzgerald, 457 U.S. 800 (1982)}.”

Id. at 639. Anderson requires that “in the light of pre-existing

law the unlawfulness must be apparent.” /d. at 640. Because

there was no such law in 1991, defendants’ qualified immu-

nity motion as to Bey’s claims should have been granted.

Il. McNALLY

Plaintiff James McNally was interrogated by Officers Ray

Cooper and Shane Talbot on March 2, 1993. Couper II had

becn decided on May 5S, 1992, ten months earlicr. In Cooper

I, an en banc panel of this court reversed Cooper | and found

interrogation “that was involuntary because it was actively

compelled and coerced by law-cnforcement officers during

in-custody questioning” can form the basis for a § 1983 action

against the police officers who interrogated him. Cooper, 963

F.2d at 1243. The limits of Cooper II's holding, as relevant

to this case, are encapsulated in the following statement:

“This case does not establish a cause of action where police

officers continue to talk to a suspect after he asserts his rights

and where they do so in a benign way, without cocrcion or

tactics that compcl him to speak.” /d. at 1244. It is plain,

thercfore, that Cooper II] docs nvt establish law that supports

the majority opinion’s broad rationale that “the insistence of

the . . . interrogators on questioning after invocation of the

right to silence and unequivocal requests for counscl violated

the strictures of Miranda” and thereby barred qualificd immu-

nity. Op. at 13399. Before a constitutional violation can be

found, there must be morc than a Miranda infraction—there

A-57

13414 CauitoRNiA ATTORNEYS Vv. Butts

must be coercive tactics that compel the suspect to speak in

violation of the Fifth Amendment. /d. at 1243-1244.

The question is what tactics, in 1993, were clearly estab-

lished by law to be coercion violating the Fifth Amendment.

The majority summarizes the conduct of the officers as

“altempt{ing] to discourage [McNally] from sceking counscl,

impl[ying] that his situation would become much worse if he

spoke with an attorney, and assur[ing] him that whatever he

said could not be used against him in any way.” Op. at 13404.°

In July 1991, this court held substantially similar questioning

of a suspect to be coercion violating the Fifth Amendment.

Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) (en banc).

The critical colloquy between Detective Destro and defendant

Collazo, after Collazo asked if he could speak with a lawyer,

went as follows:

Destro:—Once you get a lawyer, he’s gonna say for-

get it. You know, don’t talk to the police.

Then it might be worse for you.

3Note that Bey’s case is different, both on its facts and on its timing.

The officers interrogating Bey in 1991 did not denigratc the role of coun-

scl or threaten Bey with harsher treatment as a result of his invocation of

his right to remain silent. In contrast, in McNally’s interrogation, the

detectives repeatedly indicated they would not trust McNally if he chose

to consult a lawycr:

Detective: —|Y]ou have invoked your nght to have an attorney.

McNally: —Right.

Detective: —I still would like to know what happened now

becausc—well, I'll tell you where I come from. I don’t trust any-

thing that anybody tclls me aficr they’ ve talked to an attorncy and

the D.A. that will be working with us on this case docsn’t cithcr.

The detectives went on to demcan the role of counscl at Icast four morc

limes, Saying allorncys “rcally mess up the system,” “fuck your attorncy,”

“It's like black mail with attorneys, man,” and “would you trust somcthing

that somebody told you after they talked to an atlorncy?”” McNally pro-

ceeded to confess to the murder.

A-58

CALIFORNIA ATTORNEYS V. BUTTS 13415

Collazo:—Pardon me?

Destro:—Then it might be worse for you.

Id. at 414.* The court held that “demcean{[ing] the pretrial role

of counsel,” id. at 418, in an “attempt to discourage Collazo

from speaking to a lawyer,” id. at 416, “I[eading] Collazo to

believe he could reap some Icgal benefit by excluding defense

attorneys from the pre-trial process,” id. at 418, and

“altempt[ing] in the police station to impose a penalty on Col-

lazo’s choice to remain silent amount[ed] to a scrious

infringement of Collazo’s Fifth Amendment right.” /d. at 417.

The court concluded that “Officer Destro’s overreaching

behavior violated not only Miranda, but also the gencral Con-

stitutional prohibition against coercive interrogation practiccs

likely to result in involuntary responses.” /d. at 419.

Because it was clearly established, prior to McNally’s

interrogation, that denigrating the role of counsel and thrcat-

ening to impose a penalty on a suspect’s exercise of his Fifth

Amendment rights constitutes cocrcion violating the Fifth

Amendment, Officers Cooper and Talbot are not entitled to

qualified immunity. I therefore concur in the judgment affirm-

ing the denial of qualified immunity.

“It was clearly cstablished law in 1993 that a detective during intcrroga-

lion cannot threaicn a suspect with harsher trcatment as a result of a sus-

pect’s decision to remain silent and not coopcratc. See United Stutes v.

Tingle, 658 F.2d 1332, 1336, n.5 (9th Cir. 1981) (“{I]t is permissible for

an inicrrogating officcr to represent, under some circumstances, that the

fact that the defendant coopcratcs will be communicatcd to the proper

authoritics, the same cannot be said of a representation that a defendant's

failure to cooperate will be communicatcd to a prosccutor. Refusal to

cooperaic is every defendant's right under the fifth amendment.”). See

also United States v. Guerrero, 847 F.2d 1363, 1366 & n.2 (9th Cir. 1988)

(noting that recommendations of Icnicncy as a result of cooperation arc

appropriatc, but “thrcatcning to inform the prosccutor of a suspect's

rcfusal to coopcratc violates her fifth amendment right to remain silent.”).

A-59

APPENDIX B

_ ——— seule

NS BREE NSE LES SARE AAT NaN ere Os

LR TRS OT a ORO AT MT NTRS he Tied Patera eiah Coaemratea Reeke tree oe re enn ee ee ee

eat ioe Beri Sia ey IES Og he Ml i Ask a i TE Ne ES RB IS Fb RICE AN SAAN PR SS ORR AR MES iy Peale a A TSAR a ag ER a SO ® OT ESR CNN

| Hereby Certify That This Document Was Served By

United States Mail Postage Prepaid, To All Counsel

Or Parties At Their Respective Most Recent Address Of

Record In This Action On This Date

Dated: Aug. 26, 1997

Deputy Clerk

Filed

Clerk, U.S. District Court

Aug. 26, 1997

Central District of California

By Deputy

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CV 95-8634-ER (JGx)

CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE, et al.,

Plaintiffs,

V.

JAMES BUTTS, et al.,

Defendants.

ORDER RE: CROSS-MOTIONS FOR SUMMARY

JUDGMENT ARGUED AUGUST 11, 1997

-B1-

On August 11, 1997, the following motions

came on for hearing before the Honorable Edward

Rafeddie in Courtroom 1: Plaintiffs’ Motion for

Summary Judgment, the Santa Monica

Defendants’ Motion for Summary Judgment, and

the Los Angeles Defendants’ Motion for Summary

Judgment (joined by the Santa Monica

Defendants). Having read and_ carefully

considered the papers filed in support of and in

opposition to these motions, as well as the two

briefs filed by amicus curiae, and _ having

considered oral argument of counsel, the Court

now HEREBY RULES as follows:

[1] On a motion for summary judgment, the

Court must view all facts and draw all inferences

in the light most favorable to the non-moving

party.

[2] The Court DENIES Plaintiffs’ and all

Defendants’ motions for summary judgment on

Plaintiffs’ claim that Defendants violated their

Fifth Amendment right to be free from self-

incrimination during custodial interrogation. The

Court has carefully considered Miranda v. Anzona,

86 S.Ct. 1602 (1966), and its progeny, as well as

the Ninth Circuit’s en banc decision in Cooper v.

Dupnik, 963 F.2d 1220 (9" Cir. 1992) (en banc),

cert. denied, 113 S.Ct. 407 (1992). The Court

believes that there is a genuine issue of material

fact as to whether or not Plaintiffs McNally and

Bey were coerced into speaking by police officers

during custodial interrogation, in violation of

Plaintiffs’ Fifth Amendment right against self-

incrimination. As Cooper makes clear, a mere

violation of Miranda is not, without more, a

violation of the Fifth Amendment. After

invocation, detectives may still speak with a

suspect “in a benign way, without coercion or

tactics that compel him to speak.” Cooper, 963

F.2d at 1243-44. However, when Miranda

measures are ignored, a suspect’s Constitutional

rights are “directly affected.” Collazo v. Estelle,

940 F.2d 411, 418 (9 Cir. 1991), cert. denied,

112 S.Ct. 870 (1992). A failure to comply with

Miranda can be viewed as an aggravation of other

coercive tactics. Id.

[3] Absent proper safeguards, custodial

interrogation is fraught with “inherently

compelling pressures which work to undermine

the individual’s will to resist and to compel him to

speak where he would not otherwise do so freely.”

Miranda, 86 S.Ct. at 1624. In McNally’s case as

well as in Bey’s case, the detectives purposely

continued to question Plaintiffs after they had

invoked their rights to silence and to counsel

under Miranda. The detectives interrogating

McNally explicitly demeaned the role of defense

counsel when McNally invoked his right to an

attorney. In each case, the _ interrogating

detectives told Plaintiffs that their post-invocation

statements could not be used against them. In

each case, however, Plaintiffs’ statements were

-B3-

ultimately used against them by prosecutors.’

These facts raise a genuine issue of material fact

as to whether or not the detectives’ questioning

was coercive or merely benign, in the language of

Cooper, 963 F.2d at 1243-44.2 The Fifth

amendment claim, therefore, is appropriate for

resolution before a jury, on a fully developed

record.

[4] Plaintiffs and all Defendants also move

for summary judgment on Plaintiffs’ claims that

Defendants violated their Fourteenth Amendment

substantive due process rights (1) to be free from

conduct overbearing their will, and (2) to be free

Plaintiff McNally filed a successful motion to

suppress the use of his statement by the prosecution at trial

for the purpose of impeachment. However, McNally’s

statement was used against him by the prosecution at his

sentencing hearing. Plaintiff Bey’s statement was used

against him at trial for the purpose of impeachment. In

neither McNally’s case nor in Bey’s case were the statements

used by the prosecution in its case-in-chief.

The California Court of Appeal has ruled that

Plaintiff Bey’s post-arrest statement taken during custodial

interrogation and in violation of Miranda was “coerced and

involuntary,” but that admission of the statement at trial to

impeach Bey was harmless error in light of the

overwhelming evidence of Bey’s guilt. People v. Bey, 27 Cal.

Rptr. 2d 28, 31-32 (Cal. App. 2 Dist. 1993).

’ The Court views the Defendants’ after-the-fact

arguments that the detectives somehow conferred “de facto

use immunity” on these suspects to be without merit.

-B4-

from behavior that “shocks the conscience” during

interrogation.

[S] The Court DEFERS RULING on the

Fourteenth Amendment claim for conduct

overbearing the will. The parties are referred to

Albnght v. Oliver, 114 S.Ct. 807 (1994),-and

should consider whether, in light of Albright,

Plaintiffs’ generalized Fourteenth Amendment

substantive due process claim must yield to the

Fifth Amendment claim, which appears to provide

the “explicit textual source of constitutional

protection against . . . government behavior” at

issue in the present case. Albright, 114 S.Ct. at

813. Accordingly, the parties may file any

appropriate motions within ten (10) days of the

date of this Order.

[6] The Court GRANTS all Defendants’

motions for summary judgment on the Fourteenth

Amendment “shocks the conscience” claim, and

DENIES Plaintiffs’ motion for summary judgment

on that claim. There is no evidence of behavior

“shocking to the conscience” in either case, or of

conduct that is “intentional, unjustified, brutal,

and offensive to human dignity,” or that

constitutes force that is “brutal” and “offends even

hardened sensibilities.” Rutherford v. City of

Berkeley, 780 F.2d 1444, 1446 (9™ Cir. 1986).

[7] The Court DENIES the Santa Monica

and Los Angeles detectives’ motions for summary

-B5-

judgment on the basis of qualified immunity. The

Court believes this defense is foreclosed by the

analysis set forth in Cooper v. Dupnik, 963 F.2d at

1250-51. The law that police officers may not

coerce criminal suspects into making

incriminating statements during’ custodial

interrogations is “clearly enough established to

alert a reasonable officer to its constitutional

parameters.” See Miranda, 86 S.Ct. at 1624;

Reynolds v. County of San Diego, 84 F.3d 1162,

1167 (9" Cir. 1996). Defendants have articulated

no reason for this Court to alter its preliminary

denial of the qualified immunity defense, as

articulated in the Court’s Memorandum Opinion

issued in connection with the motion to dismiss.

CACJ v. Butts, 922 F.Supp. 327, 337-38 (C.D. Cal.

1996).

[8] The Court DENIES Plaintiffs’ and all

Defendants’ motions for summary judgment on

Plaintiffs’ claims under Monell v. Dep’t of Social

Services, 98 S.Ct. 2018 (1978). There is a genuine

issue of material fact as to whether or not the

Santa Monica and Los Angeles Police Departments

have a custom or policy of denying criminal

suspects their Fifth Amendment right against self-

incrimination during custodial interrogations

through coercive questioning. Although the

“outside Miranda” training materials relied upon

by each Department inevitably recommend that

detectives proceed in a non-coercive fashion, the

Court believes that a jury should be left to draw its

-B6-

own inferences as to whether there was a policy or

custom to violate Fifth Amendment rights, and

whether the “outside Miranda” training materials

and classes reflected deliberate indifference to

constitutional rights. For the same reasons, the

Court DENIES Chief Butts’ motion for summary

judgment in his individual and official capacities.

[9] The Court DENIES the Santa Monica

Defendants’ motion for summary judgment on

Plaintiff McNally’s damages claims. Plaintiff

McNally has stated claims for money damages that

may go to a jury, and the Court does not believe

that a finding on Plaintiffs behalf would

necessarily imply the invalidity of his conviction or

sentence under Heck v. Humphrey, 114 S.Ct. 2364

(1994).

[10] The Court also DENIES WITHOUT

PREJUDICE the Santa Monica Defendants’ motion

for summary judgment on the ground that Plaintiff

McNally has improperly invoked the Fifth

Amendment privilege in these civil proceedings in

response to discovery requests concerning the

underlying murder case. The Court does not

believe that Defendants have shown prejudice at

this time.

[11] The Court DENIES Plaintiff McNally’s

motion to strike the declarations of Marianne

Fullove, Raymond Hill, Jeffrey Semow, Joel Carey,

and Richard Tyler; as well as Exhibits H, L, M,N,

and Q. There are conflicting allegations as to

-B7-

when this admittedly late-disclosed evidence

became available to Plaintiff. More importantly,

the Court did not rely on these materials in

reaching its ruling. The Santa Monica Defendants’

objections to the amicus brief of the National

Association of Criminal Defense Lawyers are

OVERRULED.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of

the Court shall serve, by telefax or by United

States mail, copies of this Order on counsel for the

parties in this matter.

Dated: Aug. 26, 1997

/S/Edward Rafeedie

EDWARD RAFFEDIE

Senior United States District Judge

-B8-

O

a

Q

Z.

sa)

A.

<

Filed

October 15, 1997

Clerk, U.S. District Court

Central District of California

By Deputy

Entered

Clerk, U.S. District Court

October 16, 1997

Central District of California

By Deputy

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CV 95-8634-ER (JGx)

CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE, et al.,

Plaintiffs,

V.

JAMES BUTTS, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION

FOR SUMMARY ADJUDICATION; DENYING

PLAINTIFFS’ MOTION FOR CERTIFICATION FOR

INTERLOCUTORY APPEAL; AND GRANTING

DEFENDANTS’ REQUEST FOR STAY PENDING

APPEAL ON QUALIFIED IMMUNITY ISSUE

4

THIS CONSTITUTES NOTICE OF ENTRY

AS REQUIRED BY FRCP, RULE 77(d)

On September 29, 1997, the following

motions came on for hearing before the Honorable

Edward Rafeedie in Courtroom 1: the Los Angeles

Defendants’ Motion for Summary Adjudication

(joined by the Santa Monica Defendants), the

Plaintiffs’ Motion for Certification for Interlocutory

Appeal (joined in part by all Defendants), and the

Los Angeles Defendants’ Request for Stay Pending

Appeal Re: Qualified Immunity (contained within

its Opposition to Plaintiff's Motion for

Certification). Having read and carefully

considered the papers filed in support of and in

opposition to these motions, and _ having

considered oral argument of counsel, the Court

now HEREBY RULES as follows:

[1] The Court GRANTS all Defendants’

motion for summary adjudication regarding

Plaintiffs’ Fourteenth Amendment Substantive

Due Process claim for conduct “overbearing the

will.”

[2] The sole issue in this motion for

summary adjudication concerns a question of law,

and requires the Court to determine whether a

cognizable Fifth Amendment claim for self-

-C2-

incrimination bars a concomitant Fourteenth —

Amendment Substantive Due Process claim for

conduct “overbearing the will.” In deciding

whether the former precludes the latter, the Court

considered the Ninth Circuit’s decision in Cooper

v. Dupnik, 963 F.2d 1220 (9th Cir. 1992), the

United States Supreme Court’s decision in Albright

v. Oliver, 114 S. Ct. 807 (1994), and other cases

independently researched by the Court.

[3] In Cooper v. Dupnik, 963 F.2d 1220

(9th Cir. 1992), the Ninth Circuit sitting en banc

stated in a footnote that “[b]ecause statements of

an accused continue to be analyzed under both

the Fifth and Fourteenth Amendments, and

because Rochin’s theory of § 1983 liability is still

viable, Cooper is entitled to avail himself of all

three theories.” Jd. at 1244 n.11 (emphasis

added). The Ninth Circuit’s decision in Cooper

remains the last word on the viability of

Fourteenth Amendment Substantive Due Process

claims in cases where the Court finds a cognizable

Fifth Amendment claim for self-incrimination

occurring during an interrogation. The question

this Court address is whether the statement in

Coopers footnote is still good law after the

Supreme Court’s decision in Albright v. Oliver. The

Court ultimately concludes that it is not.

[4] In Albright v. Oliver, 114 S. Ct. 807

(1994), the plaintiff brought a Section 1983

lawsuit claiming that a malicious prosecution

i.

deprived him of Substantive Due Process under

the Fourteenth Amendment... to be free from

criminal prosecution except upon probable cause.”

Id. at 810-11. A plurality of the United States

Supreme Court held that to the extent the

Constitution gave rise to a malicious prosecution

claim, the plaintiffs right to redress the grievance

fell solely within the more specific provisions of the

Fourth Amendment and not under the more

generalized Substantive Due Process protections

of the Fourteenth Amendment. fd. at 813.

Although the Court’s decision was rendered by a

plurality, its general principles, explained in the

paragraphs below, are held by a majority of the

Court.

[5] As a general matter, the Supreme

Court has “always been reluctant to expand the

concept of Substantive Due Process because the

guideposts for responsible decision making in this

uncharted area are scarce and open-ended.”

Collins v. Harker Heights, 112 S. Ct. 1061, 1068

(1992). “The protections of substantive due

process have for the most part been accorded to

matters relating to marriage, family, procreation,

and the right to bodily integrity. Albnght, 114 S.

Ct. at 812.

[6] Thus, the Supreme Court has stated

that claims alleging Substantive Due Process

violations are often more appropriately analyzed

under the more specific guarantees of the various

-C4-

provisions of the Bill of Rights. Id. at 813. “Where

a particular amendment [to the Constitution]

provides an _ explicit textual source of

_ constitutional protection against a particular sort

of government behavior, that Amendment, [and]

not the more generalized notion of substantive due

process, must be the guide for analyzing these

claims.” Id. (citing Graham v. Connor, 109 S. Ct.

1865, 1871 (1989)) (internal quotation marks

omitted). The Court should “reverse[] due process

for otherwise homeless substantial claims” so as

to avoid “unnecessary duplication in

constitutional adjudication.” Albright, 114 S. Ct.

at 820 (Souter, J., concurring).

[7] The Ninth Circuit recently adopted the

narrow Substantive Due Process philosophy

enunciated in Albright in an en banc decision

entitled Armendariz v. Penman, 75 F.3d 1311 (9th

Cir. 1996). In Armendariz, the owners of low-

income housing properties brought a 42 U.S.C.

§ 1983 action against city officials, alleging that

conducting sweeps and over-enforcing housing

codes for the purpose of relocating criminals

violated Substantive Due Process and Equal

Protection. The Ninth Circuit rejected the

Substantive Due Process claim on the ground that

the Fourth and Fifth Amendments provided

protection against the kind of governmental

behavior challenged in the case. In doing so, the

Court referred to Albright v. Oliver and stated that

“[s]ubstantive due process analysis has no place in

-C5-

contexts already addressed by explicit textual

provisions of constitutional protection, regardless

of whether the plaintiffs potential claims under

those amendments have merit.” Id. at 1326. The

Ninth Circuit would not allow the plaintiff to “seek

relief under multiple constitutional theories”

where one of the theories involves Substantive

Due Process. Jd. Although the decision in

Armendanz does not squarely address Fifth

Amendment self-incrimination claims, it certainly

calls into question the validity of Coopers

statement in footnote 11.'

[8] In the present case, the Fifth

Amendment to the United States Constitution

provides explicit protection for the alleged

government conduct. The Fifth Amendment states

in relevant part that “no person shall be compelled

in any criminal case to be a witness against

himself.” U.S. Const. amend. V. The language of

the Fifth Amendment in no uncertain terms

' The Court also notes that a number of decisions in

other jurisdictions have already extended Albright’s

preclusion principle to other amendments to the

Constitution. See, e.g., Kaluczky v. City of White Plains, 57

F.3d 202, 211 (2d Cir. 1995) (extending to First Amendment

free speech and association claim); Rubin v. Ikenberry, 933

F. Supp. 1425, 1433 (C.D. Ill. 1996) (same); Patel v. Penman,

103 F.3d 868, 875 (9th Cir. 1996) (extending to Fifth

Amendment Takings Clause); Holman v. Page, 95 F.3d 481,

485 (7th Cir. 1996) (extending to Eighth Amendment cruel

and unusual punishment).

-C6-

protects persons from the same _ kind of

government conduct alleged in this case, namely

compelling one to give testimonial, self-

incriminating evidence. Plaintiffs’ generalized

Substantive Due Process claim does not add a

“substantive increment” to the protection available

under the Fifth Amendment. Quite the contrary,

Plaintiffs’ claim for conduct “overbearing the will”

rings remarkably similar to the first requirement

of a Fifth Amendment claim, that the person’s

testimony be “compelled.” In this sense, the

protections of the Fifth Amendment subsume any

protections afforded by the Fourteenth

Amendment.

[9] Altogether, in light of the Supreme

Court’s decision in Albright and its progeny, and

the clear and unequivocal protections afforded by

the Fifth Amendment for the grievance claimed in

this case, the Court concludes that Plaintiffs’

Fourteenth Amendment Substantive Due Process

claim cannot proceed as a matter of law.

[10] The Court DENIES any and all

requests for certification of issues for interlocutory

appeal. The Ninth Circuit has set a high hurdle

for granting 28 U.S.C. § 1292(b) certification,

noting that it is only to be used in “extraordinary

cases where decision of an interlocutory appeal

might avoid protracted and expensive litigation. It

was not intended to provide review of difficult

rulings in hard cases.” United States Rubber Co. v.

Wright, 359 F.2d 784, 785 (9th Cir. 1966).

[11] This case is not so extraordinary so as

to merit sending any issues on appeal. Many of

the issues sought to be certified are ones that this

Court has already ruled involve triable issues of

fact. Being that the Ninth Circuit Court of

Appeals will not be able to address these issues

until a full record is first created by the District

Court, certifying issues of fact to the Ninth Circuit

will not “materially advance the _ ultimate

termination of the litigation.” Moreover, any

remaining issues involving questions of law, do

not pose, contrary to the parties’ contentions,

“substantial ground for difference of opinion.”

Although the parties may disagree with the

Court’s rulings on these issues of law, the

resolution of each issue was supported by

established precedent. See CACJ v. Butts, 922 F.

Supp. 327 (C.D. Cal. 1996); Aug. 26, 1997 Order

Re: Summary Judgment.

[12] Finally, the Court GRANTS the

individual Defendant Police Officer’s Request for a

Stay of this Court’s proceedings pending the

outcome on appeal on the issue of qualified

immunity.

[13] Each individual defendant may

immediately appeal the Court’s denial of summary

judgment on qualified immunity. Behrens v.

-C8-

Pelletier, 116 S. Ct. 834, 838-39 a. =

Generally, such an _ appeal operates to

automatically stay the trial in the District Court.

Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.

1992); Behrens, 116 S. Ct. at 841. The District

Court need not stay proceedings, however, if the

District Court certifies in writing that the

immunity appeal is frivolous. Jd. But the power

to certify an appeal is frivolous “must be used with

great restraint.” Apostol v. Gallion, 870 F.2d 1335,

1339 (7th Cir. 1989).

[14] The Court finds that the issue of

qualified immunity in this case is not frivolous. A

government official is “entitled to qualified

immunity only if he is performing discretionary

functions and if his conduct does not violate

clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Harlow ov. Fitzgerald, 102 S. Ct. 2727,

2738 (1982). In the present case, a colorable

argument may be made that it is not clearly

established that questioning “outside” of Miranda,

where Miranda warnings were actually given,

violates the Fifth Amendment to the Constitution.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of

the Court shall serve, by telefax or by United

-C9-

States mail, copies of this Order on counsel for the

parties in this matier.

Dated: Oct. 15, 1997

/S/Edward Rafeedie

EDWARD RAFEEDIE

Senior United States District Judge

-C10-

Q

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Q.

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[Parties’ Stipulation of Facts Regarding Training

Methods from Ninth Circuit Excerpt of Records,

pp.254-256]

STIPULATION

Plaintiff James McNally and Defendants City

of Santa Monica, James T. Butts, Jr., Ray Cooper

and Shane Talbot stipulate to the following facts:

Fe Police Departments in the State of

California are regulated by the Commission on

Peace Officer Standards and Training (POST).

California Penal Code § 13500 et seq. The POST

commission establishes minimum Standards for

training of peace officers in the State.

yf The Santa Monica Police Department

a relatively small department with

approximately 195 sworn police officers. Unlike

some of the larger departments in the State of

California, Santa Monica’s police department does

not have its own police training academy. All

police officers receive POST certified academy

training and attend the City’s 20 week field

training program.

3. Every Santa Monica police officer

continues to receive training on a wide variety of

subjects throughout his or her career with the City

of Santa Monica. The type and substances of

me

training depends upon the officer’s rank and

assignment. Training includes formal classroom

training, rollcall training and training bulletins.

The training bulletins are prepared by the training

department and approved by the Chief of Police

prior to circulation within the department. Most

of the formal classroom training is provided by

sources outside of the Department such as

colleges, institutes, private providers, other police

agencies and organizations.

4. The Santa Monica Police Department

does not provide in-house classroom training on

interrogation techniques. The Department relies

upon the training provided at the POST accredited

academy and specialized advanced courses offered

by outside organizations. Some of these advanced

courses are POST accredited and some are not.

The Department does not review or approve the

substantive content of the training provided in the

advanced training courses. If the course is POST

accredited, the Department relies on the oversight

provided by POST. If the course is not POST

accredited, the Department considers. the

reputation of the course, the course instructors

and the course syllabus, if available, in

determining whether or not to send police

personnel to the course.

3. The Santa Monica Police Department

promotes officers to detective positions in the

Office of Criminal Investigations based on written

-D2-

applications and interviews. Detectives conduct

virtually all of the custodial interrogations related

to felony crimes. Detectives receive advanced

instruction for special assignments such as

homicide, rape, arson and narcotics. Their

training includes advanced instruction in

custodial interrogation.

6. Ray Cooper has been employed with

the Santa Monica Police Department since 1976.

Sergeant Cooper is the detective currently in

charge of the Office of Criminal Investigations and

held that position since 1991. Prior to 1991,

Detective Cooper worked in the Office of Criminal

Investigations for 10 years. Sergeant Cooper’s

duties currently include investigating and

supervising investigations related to homicides,

deaths, ‘robbery, missing persons, kidnaping,

rapes and a variety of other major assaults. His

duties also include reviewing reports prepared by

detectives in the office of Criminal Investigations,

including reports on custodial interrogations

conducted by other detectives.

+ Shane Talbot has been employed with

the Santa Monica Police Department since 1973.

Detective Talbot is currently assigned to the Office

of Criminal Investigations and has worked as a

detective in that division since 1979.

8. Prior to March 1993, Detectives

Cooper and Talbot attended advanced training

-D3-

courses related to investigative techniques,

including custodial interrogation. None of these

courses were taught by the Santa Monica Police

Department. The instructors at some of these

courses taught Detectives Cooper and Talbot that

it was permissible to question a custodial suspect

after he or she has asserted his or her Miranda

rights. Pursuant to their training, Sergeant

Cooper and Detective Talbot have questioned

custodial suspects after they have asserted their

Miranda rights.

9. Sergeant Cooper and Detective Talbot

investigated the homicide involving James

McNally. On March 2, 1993, Detectives Cooper

and Talbot interviewed Mr. McNally, who was in

police custody in Flagstaff, Arizona. A true and

correct copy of the transcript of the interview is

attached as Exhibit “A”.

10. Attached as Exhibit “B” is a copy ofa

portion of the Santa Monica Police Department’s

Policy and Procedure Manual related to Miranda

admonishments. This policy was in effect in

March 1993.

11. There are three training bulletins

signed by Santa Monica Chief of Police James T.

Butts related to Miranda. All three bulletins were

signed after March 1993, when Sergeant Cooper

and Detective Talbot interviewed McNally.

Attached as Exhibit “C” is a true and correct copy

Tt.

of Santa Monica Police Department Training

Bulletin, No. 94-02 dated February 2, 1994.

Attached as Exhibit “D” is a true and correct copy

of Santa Monica Police Department Training

Bulletin, No. 95-07 dated January 21, 1995.

Attached as Exhibit “E” is a true and correct copy

of Santa Monica Police Department Training

Bulletin, No. 95-19 dated September 7, 1995.

12. Mr. McNally did not file a personnel

complaint pursuant to California Penal Code §§

832.5 and 832.7 against Sergeant Ray Cooper or

Detective Shane Talbot related to the

interrogation. And, the Santa Monica Police

Department did not discipline either Sergeant

Cooper and Detective Talbot as a result of the

interrogation.

DATED: April 18, 1997

By: /s/Charles D.Weisselberg

Charles D. Weisselberg

Attorney for Plaintiff

James McNally

By: /s/Jeanette Schachtner

Jeanette Schachtner

Attorneys for Defendants

City of Santa Monica, James T. Butts, Jr.,

Ray Cooper and Shane Talbot

-D5-

APPENDIX E

[Declaration of Supervising Deputy Attorney

General Responsible for Police Officer Training and

Author of Department of Justice Legal Sourcebook

for the State of California from Ninth Circuit

Excerpt of Record pp. 244-249]

DECLARATION OF JOEL E. CAREY

I, JOEL E. CAREY, declare from my own

personal knowledge and if called as a witness

could and would competently testify to the

following:

1. lama Deputy Attorney General in the

California Attorney General’s Office in Sacramento

and have worked in the Criminal Law Division for

approximately 25 years, including 15 years as a

Supervising Deputy Attorney General.

2. In addition to my primary responsibility

of handling felony appeals for the People before

the state’s appellate courts, I have had many,

ongoing assignments relating to the training of

police officers in the areas of search and seizure

law and interrogation law. More particularly, I

have conducted P.O.S.T. approved training classes

and seminars on these topics throughout the state

for over 20 years and have been the featured

speaker for the past 15 years at the Legal Update

seminars sponsored each fall by the California

Peace Officers Association. I have also been solely

-El- -

responsible for the content of the Peace Officers

Legal Sourcebook since its inception in 1984. The

Legal Sourcebook is a Department of Justice

Publication, available in three formats (loose-leaf,

computerized, and abbreviated “Field Guild”),

which is updated six times a year and is used for

training at numerous police academies and

colleges throughout the state, as well as by tens of

thousands of individual peace officers who want to

stay abreast of the law.

3. Within the area of interrogation law,

there has been discussion during recent years

concerning the issue of “intentional violations” of

Miranda. Specifically, the discussion relates to

continuing to ask questions of (i.e., to

“interrogate”) a suspect who is in “custody” (i.e.,

who has either been arrested or subjected to

equivalent restraints on his freedom of movement),

even though the suspect has invoked his Miranda

right to silence or his Miranda right to counsel.

4. On this topic, I have taught, and

continue to teach as follows: As the U.S. Supreme

Court has repeatedly stated, the two Miranda

rights (silence and counsel) are not, themselves,

constitutional rights. (Miranda, Tucker, Edwards,

Quarles, Duckworth, Burbine, Davis). Rather, they

are no more than suggested guidelines or

recommended procedures on how the police may

obtain a statement which will be admissible at

trial without violating the suspect’s’ Fifth

-E2-

Amendment right against self-incrimination.

(Miranda.)

9. The Fifth Amendment right against self-

incrimination is, of course, a constitutional right,

but it is a trial right. (Verdugo-Urquidez) This

means that it is violated, if at all, at trial, i.e., bya

judge when he or she admits a statement which

was obtained without complying with the Miranda

safeguards. !

6. The Sixth Amendment right to counsel is

also a constitutional right. However, it does not

attach until the commencement of adversary

proceedings (i.e., indictment or the suspect’s first

court appearance). It serves an entirely different

purpose than Miranda, and, in general, has

absolutely nothing to do with Miranda. (Kirby,

Gouveia, Davis).

7. Because “the prophylactic rules of

Miranda” are not constitutional rights, and

because the whole purpose behind the Miranda

decision is how an admissible statement may be

obtained, the failure to comply with Miranda

As a tral right, the Fifth Amendment privilege

against self-incrimination stands in stark contrast to the

Fourth Amendment right to be free from unreasonable

searches and seizures, which exists and all times and places

and which is therefore violated “in the field” by an officer

who undertakes an unreasonable search or seizure.

-E3-

results in only one “penalty”, namely, a statement

that is not admissible at trial--at least where the

non-compliance with Miranda was non-coercive,

i.e. where the statement was not

involuntary/unreliable through the use of force,

threats or promises.

8. Because non-coercive non-compliance

with Miranda does not involve a constitutional

right, there is likewise no civil rights violation, nor

any basis for applying Wong Sun’s “fruit of the

poisonous tree” doctrine (Elstad). “We decline to

hold that the murder weapon should be

suppressed as a ‘fruit’ of a Miranda violation.”

(Cherry, 794 F.2d 1040, 1044 (Sth Cir. 1986).)

“Although the statement itself must be excluded,

the physical evidence produced as a result of it is

not rendered inadmissible simply because of the

Miranda violation.” (Henley, 984 F.2d 1040, 1044

(9th Cir. 1993).) “[T]he United States Supreme

Court has stated unequivocally, in Elstad and

Tucker, that a non-coercive Miranda violation is

not a constitutional violation.” (Whitfield, 46

Cal.App.4th 947, 957 (1996).)

9. On the other hand, all statements must

be “voluntary” in order to be admissible at trial.

(Mincey, Benson) Accordingly, if the police obtain

a statement through the use of force, threats or

promises, there is a “due process” issue under the

a.

Fourteenth Amendment.” If the technique was

such as to render the statement involuntary and

unreliable, i.e., if the suspect’s free will was

“overborne” by the police conduct so that the

statement was “no longer the product of a rational

intellect and free will,” then there has been a

“substantive” due process violation, and the

Statement is inadmissible for any purpose.

(Blackburn, Mincey, Cahill.

If, on the other hand, the statement was

obtained as the result of a non-coercive “promise”

(for instance, that the statement will not be used

against the suspect), then if and when the

statement is admitted, there has been only a

“procedural” due process violation. The violation

results from the inherent unfairness in the State

going back on its word even though the promise

would not result in an unreliable statement. °:

In short, “the type of Fourteenth

Amendment interest that is implicated has

important effects on the nature of the

constitutional claim and the availability of Section

1983 relief.” (Daniels v. Williams, 474 U.S. 327,

337 (1986)).

4

: Declarant recognizes that the Fifth Amendment also

contains a “due process” clause but, for the sake of clarity,

will refer only to the Fourteenth Amendment when

discussing “due process”.

-E5-

10. In Harms, 401 U.S. 222 (1971), the

Supreme Court ruled that a statement obtained in

non-compliance with Miranda can nevertheless be

used for impeachment. And in Hass, 420 U.S.

714 (1974), non-compliance took the form of

putting off the suspect until after he made

incriminating statements, even though the suspect

had said he wanted an attorney. The Supreme

Court followed Harns and ruled that the

statements were nevertheless admissible for

impeachment since the officer had done nothing to

render the statement involuntary and

untrustworthy:

One might concede that when

proper Miranda warnings have been

given, and the officer then continues

his interrogation after the suspect

asks for an attorney, the officer may

be said to have little to lose and

perhaps something to gain by way of

possibly uncovering impeachment

material. This speculative possibility,

however, is even greater where the

warnings are defective and the defect

is not known to the officer. In any

event, the balance was struck in

Harms, and we are not disposed to

change it now. If, in a given case, the

officer’s conduct amounts to abuse,

that case, like those _ involving

coercion or duress, may be taken care

-E6-

of when it arises measured by the

traditional standards for evaluating

voluntariness and trustworthiness.

(Hass at p. 723)

11. Analytically, since Miranda rights are

not constitutional rights, it should not make any

difference how, or in what manner, the police fail

to comply with Miranda (excluding any Fourteenth

Amendment issue). The result is always the same:

Non-coercive non-compliance with Miranda

renders a statement inadmissible in the case in

chief, but leaves it admissible for impeachment

purposes. (Harris, Hass).

12. Likewise, it should not matter why the

police did not comply with Miranda. The

subjective thinking and/or motivation of officers

should be as irrelevant under interrogation law as

it is under search and seizure law, indeed,

probably less relevant since no constitutional right

is directly involved.

13. As an educator, I do not takea position,

one way or another, whether police should or

should not ignore a Ssuspect’s invocation of

Miranda rights. Rather, I provide training on

established law and apply the relevant principles

to various fact patterns, including this one.

-F7.

14. Attached to this declaration is an

excerpt that I wrote and that is contained in the

Legal Sourcebook.

I declare under penalty of perjury, pursuant

to the laws of the State of California that the

foregoing is true and correct.

This Declaration was signed on the May 1,

1997 at Sacramento, California.

/s/Joel Carey

JOEL CAREY

Deputy Attorney General

-E8-

APPENDIX F

[Declaration of State Certified Trainer in Legal

Aspects of Interrogation Law from Ninth Circuit

Excerpt of Record at pp. 232-243]

DECLARATION OF RAYMOND HILL

I, RAYMOND HILL, declare and if Called as

a witness could and would competently testify to

the following facts of my Own personal knowledge.

¥ I am currently a professor of criminal

justice and public administration at Santa Rosa

Jr. Community College and have held that

position since 198].

ys I received my Bachelor’s degree in

1974 and my Master’s degree in 1977 from Golden

Gate University in San Francisco. I have also

completed post graduate work in education.

3. I have taught California police officers

and deputy sheriffs about the legal aspects of

Miranda for 21 years. I have instructed at the

California Community Colleges, at the California

State University system, at the Basic Law

Enforcement Course and in regional advanced

officer training under the auspices of the

California Commission on Peace Officer Standards

and Training (?.0.8.T.).

1.

I have also provided legal update instruction

on Miranda issues in advanced officer training

through the Santa Rosa Regional Criminal Justice

Training Center for law enforcement agencies in

Marin, Sonoma, Mendocino, Lake, Humboldt and

Solano Counties.

In addition, for 10 years I have instructed a

“Legal Aspects of Interrogation Law” block in the

P.O.S.T. certified “Interview and Interrogation

Techniques” course through the Behavior Analysis

Training Institute (BATI) based in Santa Rosa.

This course is taught throughout California.

4. Throughout my career as an educator,

I have taught interrogation law and techniques to

over ten (10) thousand peace officers from the

State of California and adjoining states.

Approximately 20 officers from the Santa Monica

Police Department have attended by training at

the BATI “Interview and Interrogation Techniques”

course.

5. Prior to entering full-time teaching in

1981, I spent 14 years in law enforcement as a

patrol officer, detective and command officer of a

detective bureau for the City of Novato in Marin

County, California.

6. I am a member of the California

Association of Administration of Justice Educators

-F2-

(CAAJE) and the California Association of Police

Training Officers (CAPTO).

z; I have received a nationwide award for

“Excellence in Teaching” through the National

Institute for Staff Organization and Development

at the University of Texas, Austin. |

8. I have authored a _ textbook on

California Criminal Evidence which is currently

used by 15 colleges in California.

9. I have reviewed the complaint filed by

plaintiffs Bey and McNally, the complete

interrogation transcript and the District Court’s

rulings on the defendants’ Motions to Dismiss. My

teachings vary from the District Court’s

interpretation of the relevant case law as it relates

to civil liability.

10. Historically, instruction on the legal

aspects of Miranda v. Arizona, 384 U.S. 436 (1966)

has been simple. Miranda is a court created case

law remedy affecting the admissibility of

Statements gained from a suspect who is

subjected to custodial interrogation by the police.

If officers comply with Miranda prerequisites, any

resulting statements are admissible to prove guilt

in a criminal case. If peace officers do not comply

with Miranda’s “prophylactic rule”, and the court

subsequently admits the statement into evidence,

a Fifth Amendment violation occurs. In other

-F3-

words, there is nothing unconstitutional about an

officer’s failure to comply with the Miranda rule

(Michigan v. Tucker, 417 U.S. 433, 443-444

(1974)); Moran v. Burbine, 475 U.S. 412, 424-425

(1986); Davis v. U.S., 129 L.Ed. 362, 370 (1994).

The constitutional violation occurs only when the

court allows a statement obtained in violation of

the Miranda rule to be used at trial as evidence of

guilt. (See, Miranda v. Anzona, supra; Illinois v.

Perkins, 494 U.S. 407 (1990). Simply put, I have

taught that Miranda is not a Constitutional right

that applies during police investigation (Oregon v.

Elstad, 470 U.S. 298, 304 (1985), but rather a trial

right to be asserted in court (Withrow v. Williams,

123 L.Ed.2d 407, 419 (1993).

Miranda rights can be distinguished from

Fourth Amendment protection against

unreasonable searches and seizures and from the

Sixth Amendment right to counsel (Michigan v.

Jackson, 475 U.S. 625, 629 (1986); Moran ov.

Burbine, supra, 429-430), both of which are

directly guaranteed by the Constitution.

11. My classes include training on

questioning outside Miranda. My training is

consistent with the instructional outline certified

through P.O.S.T. and with recommendations made

through the California Peace Officer’s Legal Source

book published through the Office of the Attorney

General. (The P.O.S.T. instructional outline is

attached as Exhibit “ ”.)

-F4-

12. On the subject of questioning outside

Miranda, I teach as follows:

A. Questioning outside Miranda is a

discretionary act based upon department and /or

the district attorney’s office policy. I do not teach

officers to automatically question outside Miranda

nor do I actively encourage or discourage officers

from doing so. I educate officers on the law and

on the advantages and disadvantages of

questioning outside Miranda. I always advise

officers to refer to their police department and /or

the district attorney’s office policy for guidance on

whether to question outside: Miranda.

If the police department and/or district

attorney policy permits questioning outside

Miranda, then officers should have the discretion

to do so. This is especially true since there is no

clear appellate case that holds that questioning

outside Miranda in a voluntary manner subjects

an officer to civil liability in a civil rights action.

B. There are good law enforcement and

public policy considerations for questioning

outside Miranda other than for obtaining

impeachment statements. I train officers that

Statements obtained by police from criminal

suspects after the suspect has invoked his or her

Miranda rights will be inadmissible in the

prosecution’s case in chief. But, there is a clear

body of case law which permits such statements

-F5-

for impeachment purposes. (See, Harms v. New

York, 401 U.S. 222, 224 (1971) Oregon v. Haas,

420 U.S. 714, 723 (1975); Michigan v. Harvey, 494

~ U.S. 344, 350 (1990); People v. May, 44 Cal.3d

309 (1988). These cases recognize that there is

substantial public and legal interest in deterring a

suspect from committing perjury on the witness

stand and to expose such inconsistencies to the

trier of fact.

The issue of an intentional or deliberate

Miranda violation for impeachment statement

purposes is currently under review by the

California Supreme court (People v. Peevy).

California appellate courts have split on this issue

(People v. Baker, 220 Cal.App.3d 574, 576-579

(1990); contra People v. Bey, 21 Cal.App.4th 1623,

1628 (1993) and Jn re Gilbert E., 32 Cal.App.4th

1598, 1601 (1995). The court in Bey and Gilbert

E. ruled the manner in which the officers gained

the outside Miranda_ statements _ involved

involuntariness.

From a_= police “investigative need”

standpoint and in order to promote substantial

public policy interests, there are numerous

reasons police officers might ignore a Miranda

assertion and question outside Miranda. These

include:

a.) Locating tangible or physical evidence

related to the crime. Derivative evidence seized as

-F6-

a result of an uncoerced admission or confession

obtained outside of Miranda is not fruit of the

poisonous tree (Michigan v. Tucker, supra, 445-

450; Oregon v. Elstad, supra, 304-308; People v.

Whitfield, 46 Cal.App.4th 947 (1996), and thus is

legally admissible in court. Learning the location

of yet to be recovered tangible or physical evidence

is not a Constitutional violation.

b.) Locating a crime scene. It- is

important to locate and secure the crime scene to

protect any evidence from contamination or

destruction. Such evidence could be exculpatory

as well as inculpatory in nature. Also, witnesses

who may be able to offer relevant evidence may be

located during a neighborhood check around the

crime scene. There is no Constitutional violation

involved in learning from a Suspect the

whereabouts of a crime scene.

Cc.) Identifying another co-principal in the

crime. There is a substantial public interest in

apprehending or prosecuting other principals

involved in a crime. Early discovery of criminal

Suspects also conserves investigation time and

public cost. There is no Constitutional violation

involved in learning from a suspect the identity of

other persons involved in the crime.

d.) Identifying other victims or witnesses

in a crime. There is a substantial interest in

aiding a victim or victims to a crime. Especially in

alt F<

the area of violent crimes, victims may be in need

of psychological counseling and are eligible for

compensation from the State Victim’s Crime Fund.

There is no Constitutional violation involved in

learning from a suspect who may be a victim or

witness to a crime. Such evidence could be

exculpatory as weil as inculpatory in nature.

e:) Locating stolen property to return to

a victim. Often times, a crime victim’s property

loss is not covered by insurance and the victim’s

socioeconomic condition does not permit a

repurchase of property taken by the thief. There

is a substantial public interest in assisting crime

victims by returning recovered fruits of the crime.

f.) Learning more about criminal

practices and methods of operation. Criminals

can be “good teachers” in helping officers and

investigators improve their investigative

techniques. Criminals are on the “pulse beat” of

the illegal subculture in a community and what

police learn about criminal practices may in fact

deter future crime or accelerate a future

investigation.

g.) Providing the Community with “Peace

of Mind.” -- “Do we have the right guy?” Serial

offenders and violent offenders create a state of

fear in our communities. In addition, substantial

resources are expended investigating these type of

crimes. Questioning a serial rape suspect or

-F8-

violent offender outside Miranda may link him or

her to specific crimes which allows the police to

inform victims that a Suspect has_ been

apprehended and mitigate further investigative

costs. There is a substantial public interest in

putting the community at ease when a dangerous

suspect has been apprehended.

C. Questioning outside Miranda must be

done in a voluntary manner. | train officers that

if a suspect voluntarily agrees to talk to a police

officer outside Miranda, there is no constitutional

violation and no civil liability. (Thornton uv.

Buchmann, 392 F.2d 870 (1968); Duncan v.

Nelson, 466 F.2d 939 (1972); Turner v. Lynch, 534

F.Supp. 686 (1982); Warren v. Cit» of Lincoln,

Nebraska, 864 F.2d 1436 (1989); Haupt v. Dillard,

~ — 794 F.Supp. 1480 (1992); Brock v. Logan County

Sheriff, 3 F.3d 1215 (1993); Giuffre v. Bissell, 31

F.3d 1994 (1994); Bennett v. Passic, 545 F.2d

1260, 1263 (1976). I also train officers that they

should document the totality of circumstances

Surrounding the outside Miranda interview in

order to establish an atmosphere of voluntariness.

! train officers that if they obtain an outside

Miranda statement in an involuntary manner

through overt tactics such as force, threat,

promise of leniency, etc., then the statement is

inadmissible in a criminal case for all purposes,

including for impeachment. I also instruct that an

involuntary statement may also result in the

-F9-

suppression of tangible or physical evidence

resulting from the statement. (People v. Vasalia,

38 Cal.App.4th 865, (1995).

That is not to say that every involuntary

statement should result in civil liability. For

instance, a confession or admission obtained after

telling the suspect the statement cannot be used

against him or her will result in an involuntary

and therefore inadmissible statement. However,

this type of police conduct, without more, does not

"shock the conscience" and therefore cannot result

in a Fourteenth Amendment substantive due

process violation. It is important to draw a

distinction between police conduct that makes a

statement involuntary or coerced for purposes of

admissibility in a criminal case versus coercive

police conduct that rises to the level of a

Constitutional violation under the Fourth or

Fourteenth Amendments.

In my training, I also address the 9th

Circuit opinion in Cooper v. Dupnick, 963 F.2d

1220, 1244 (1992) and discuss the premeditated,

coercive, and involuntary factual circumstances

which resulted in civil liability in that case. ("What

the Task Force did constitutes a 20th century

inquisitorial version of the Star Chamber"; "The

prisoner was held in a totalitarian nightmare

where police no longer obeyed the Constitution,

but instead followed their own judgment treating

suspects according to their whims".)

-F10-

D. An outside Miranda interview should

be memorialized for district attorney and defense

counsel review. An officer should have nothing to

hide by questioning outside Miranda for one or

more of the aforementioned investigative motives.

The interview should be recorded or documented

and attached as part of the investigation in the

same manner as any other evidence. The interview

should be forwarded to the district attorney and

available for discovery by defense counsel.

13. As an expert in the field of

interrogation law and techniques, it is my opinion

that there are sufficient legal safeguards already in

place for a Miranda violation. Statements are

inadmissible in the prosecution's "case in chief".

Involuntary statements which are factually the

result of a Fourteenth Amendment due process

violation such as coercion or inducement are

inadmissible for all Purposes (including

impeachment and the derivative evidence

introduction). Furthermore, conduct which

shocks the conscience or violates the Fourth

Amendment subjects an officer to civil liability.

14. In my opinion, the mere act of

questioning outside Miranda in and of itself,

without overt coercive circumstances, where a

suspect expressly or implicitly agrees to talk to an

officer who is pursuing an investigative motive, is

a discretionary function. Because there is no

clearly established legal precedent to the contrary,

-F11-

a reasonable law enforcement officer could believe

that it is permissible to question outside Miranda

in a noncoercive manner and that the officer will

not be subjected to civil liability unless his or her

conduct violates the Fourth Amendment and/or

the substantive due process provision of the

Fourteenth Amendment.

15. Toimpose civil liability under section

1983 on a police officer for asking a suspect

questions outside Miranda is contrary to law

enforcement and public policy interests. Moreover,

to rule that merely questioning outside Miranda is

coercive and involuntary, without an additional

factual showing of involuntariness which is

equivalent to the task force's conduct in Cooper v.

Dupnick, deters proper and effective law

enforcement, runs contrary to the societal interest

in assisting crime victims, and subjects the public

to bear the expense of defending unnecessary

lawsuits.

Under these circumstances, the interests of

society should take precedence. If the suspect

does not want to talk outside Miranda, the choice

is simple - he or she can just say no!

16. Ihave compared McNally's and Bey's

allegations with the task force's conduct in Cooper

v. Dupnick. I have also read the McNally

interrogation transcript. And, in my opinion there

is absolutely no comparison between the Santa

-F12-

Monica officer's conduct in McNally and that of the

Cooper task force. To characterize the task force's

conduct in Cooper as similar to the officers’

conduct in McNally is to characterize a "hurricane

as but a movement of air." (Cooper at 1237.) The

Santa Monica officers' questioning of McNally was

a "far cry" from the scenario described in Cooper.

It should also be noted that Bey and McNally are

convicted murderers where Cooper was in fact an

innocent person falsely under arrest.

I declare under penalty of perjury of the

laws of the State of California that the foregoing is

true and correct. Signed on May 2, 1997 at Santa

Rosa, California.

s/Raymond Hill

RAYMOND HILL

-F13-

APPENDIX G

[Petitioner Talbot’s Declaration from Ninth

Circuit Excerpt of Record at pp. 151-167]

DECLARATION OF SHANE TALBOT

I, SHANE TALBOT, declare that I have

personal knowledge of the following facts

and if called as a witness I could and would

competently testify thereto.

Ri [am a police detective employed

with the City of Santa Monica Police

Department (SMPD), where I have worked

since 1973. I have been assigned for 18

years as a detective in the Office of Criminal

Investigations. I have been a homicide

detective for 12 years. I was the principal

investigator assigned to the hom: ide of

James Harold Jones, who was killed in

Santa Monica, California in the early

morning hours on or about February 28,

1993.

Ys On March 1, 1993, police

dispatch informed me that a homicide had

occurred at 1959 Cloverfield Blvd., Apt. 206,

Santa Monica, California. | went to that

address about 11:00 a.m.

3. Upon entering the apartment I

went to the bedroom, where | observed

—

a

2.

James Jones’ body lying nude in an

unmade bed with numerous stab wounds to

his upper right chest and shoulder area and

lacerations to his face.

4. Detectives already on the scene

informed me that Mr. Jones’ car, a 1985

Audi Fox, was missing from its assigned

parking space and had been reported to the

National Crime Index Center (NCIC) with

instructions that, if found, the vehicle

should be stopped, all occupants detained,

and the car held for latent prints.

o. Mr. Jones’ apartment appeared

to have been ransacked. Numerous drawers

were left open; clothing was removed from

bureaus and scattered on the floor, along

with articles of jewelry and small change.

The stereo system and VCR in the living

room were disconnected and readied for

Carrying.

6. I observed Jones’ body lying in

an unmade bed in one of the two bedrooms.

There was a copious quantity of blood in the

bed, but only drops elsewhere in the room

or apartment. I examined Jones’ body more

closely and observed approximately 15

serious stab wounds, four to his back, nine

to his front chest and upper right shoulder,

and two to the arm pit of his right arm, as

-G2-

well as lacerations to his face. There was

blood splattered on the headboard of the

bed, which appeared to be from the victim’s

body. Semen was identified on the

bedclothes.

re What appeared to be Caucasian

body hairs were visible on the bed sheets.

The victim, who was African American, had

very little body hair.

8. There was a television set anda

Video Cassette Recorder in the bedroom

with the victim, both in the “on” position

when the body was found. An X-rated video

depicting homosexual male and

heterosexual pornographic activity was in

the VCR.

9. Based on my experience as a

detective, and the evid

This text is long and has been trimmed here. Open the source document for the complete record.