Petition for Writ of Certiorari — Blum v. Crowe

Supreme Court, U.S.

FILED

10-420 SEP 16 2010

OFFICE OF THE CLERK

IN ‘HE

Supreme Court of the United States

LAWRENCE N. BLUM, PH.D., Petrtioner

MICHAEL CROWE, STEPHEN CROWE, CHERYL A. CROWE,

JUDITH ANN KENNEDY, SHANNON CROWE, AARON

LLOUSER, MARGARET SUSAN HOUSER, CHRISTINE HUFF,

AND GREGG HOUSER, Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circunt

PETITION FOR WRIT OF CERTIORARI

DAN L. LONGO, ESQ.

KENNETH H. MORENO, ESQ.

SCOTT J. LOEDING, ESQ.

MURCHISON & CUMMING, I.LP

750 "B" STREET, SUITE 2550

SAN DIEGO, CA 92101

(619) 544-6838

dlongo@murchisonlaw.com

Questions Presented For Review

1. Whether a private psychologist requested

by the police te consult on a single interrogation of a

criminal suspect in a murder investigation is entitled

to assert qualified immunity pursuant to Richardson

v. McKnight 521 U.S. 399 (1997).

2. Whether the holding and standards set

forth for application of qualified immunity to private

parties in Richardson v. McKnight 521 U.S. 399

(1997) should be clarified or re-examined due to the

Circuit Courts’ disinelination to extend qualified

immunity to private individuals and the Ninth

Circuit's blanket refusal to extend qualified

immunity to private individuals.

3. Whether the tactics and hnes of questioning

employed during Plaintiffs’ interrogations violated

the Fourteenth Amendment shocks the conscience

standard under prior precedent and this Court's

decision in Chavez v. Martinez 538 U.S. 760 (2003).

4. Whether the law was clearly established

that the tactics and lines of questioning employed

during Plaintiffs’ interrogations were a violation of

the Fourteenth Amendment where the presiding

Kederal District Court, subsequent Ninth Circuit case

law, and this Court in Chavez v. Martinez have

indicated that such tactics and lines of questioning

are not a violation of the Fourteenth Amendment.

List of Parties

Whose Judgment is Sought to be Reviewed

Lawrence N. Blum, Ph.D. seeks review of the

Ninth Circuit Court of Appeals' reversal of the

District Court's grant of summary judgment in

Lawrence N. Blum, Ph.D.'s favor and against

Plaintiffs Michael Crowe, Stephen Crowe, Cheryl A

Crowe, Judith Ann Kennedy, Shannon Crowe, Aaron

Houser, Margaret Susan Houser, Christine Huff, and

Gregg Houser.

Lawrence N. Blum, Ph.D. aiso joins in the

Petitions filed by the Escondido and Oceanside

parties seeking review of the Ninth Circuit Court of

Appeals decision

TABLE OF CONTENTS

STATEMENT OF THE CASE

INTRODUCTION

l] STATEMENT OF FACTS

[1] THE LOWER COURT DECISIONS

A The District Court Decision

Granting Summary Judgment

to Dr. Blum

B The Ninth Circuit Reversal of

Summary Judgment on the

Conspiracy Claim

LEGAL ARGUMENT

1\ APPLICATION OF QUALIFIED

IMMUNITY TO § 1983 LAWSUITS

V RICHARDSON V. MCKNIGHT

A The Richardson Majority

CPUPEPRIOEL on oveckeccssss

B The Richardson Majority

Caveats.......

The Richardson Dissent

Ll]

Page

VI CIRCUIT COURTS' DENIAL OF

QUALIFIED IMMUNITY AFTER

RICHARDSON .............. OPN A eh we SS ee aaa ae

VII. APPLICATION OF RICHARDSON

pet ht) A FS)” eee ne ges, ine OO

A Dr. Blum is Entitled to Assert

Qualified Immunity Under the

Richarason Caveat..................0.....6.. 20

B The Richardson Majority

Criteria for Extending Qualified

Immunity to Private

Individuals Should Be Re

EXAMINGEG q............ccecee0- Py prey

VIII. PLAINTIFFS' FOURTEENTH

AMENDMENT RIGHTS WERE NOT

VIOLATED AND THE LAW WAS

NOT CLEARLY ESTABLISHED

THAT THE SUBJECT

INTERROGATIONS VIOLATED THE

FOURTEENTH AMENDMENT.......... 33

A Plaintiffs’ Fourteenth

Amendment Rights Were Not

WE osc ieasu ce eeecsenk 34

B. The Law Was Not Clearly

Established That the "Tactics

and Lines of Questioning" in the

Interrogation Violated the

Fourteenth Amendment........ 08

1V

IX

}

O

N

&

LU

S

LO

N

AY

TABLE OF AUTHORITIES

Page

CASES

Bartell v. Lohiser

215 F.3d 550, 556-557 (6 Cir. 2000) 20

Beecher v. Alabama

389 U.S., 36 (1967) 35

Burke v. Town of Walpole

405 F.3d 66 (15t Cir. 2005) 23

Camiulo-Robles v. Hoyos

151 F.3d 1 (1st Cir. 1998) 23

Chavez v. Martinez

538 U.S. 760, 766, 773 (2008) Passim

Clement v. City of Glendale

518 F.3d 1090, 1096-1097 (9t» Cir

2008)...... | were 24

Clewis v. Texas

386 U.S. 707 (1967) 35

Cooper v. Parrish

203 F.3d 937 (6t» Cir. 2000) 21

County of Sacramento v. Lewis

523 U.S. 833 (1998) .... 34

Darwin v. Connecticut,

391 U.S. 346 (1968) $5

Deha v. City of Rialto 2010 U.S.App. LEXIS

18836 (9% Cir. 2010).... 24

Vi

Franklin v. Fox

312 F.3d 423, 440 (9th Cir. 2002) 6, 24

Gonzales v. Spencer

336 F.3d 832, 835 (9th Cir. 2003) 4

Harrison v. Ash Co.

539 F.3d 510, 521-525 (6 Cir. 2008) A

Hinson v. Edmond

192 F.3d 1342 (11% Cir. 1999) 2

Jensen v. Lane County

222 F.3d 570 (9% Cir. 2000) 3

Malinowski v. DeLuca

177 F.3d 623 (7'» Cir. 1999) 22

Pearson v. Callahan

129 8.Ct. 808 (2009) Passim

Reck v. Pate

367 U.S. 433, 489 - 440 (1961) 35

Richardson v. McKnight

521 U.S. 399 (1997) Passim

Rosewood Services v. Sunflower Diversified

Services |

413 F.3d 1163 (10 Cir. 2005) . 2

Sain v. Wood

512 F.3d 886, 892. to. ou

Sherman v. Four County Counseling Ctr.

987 F.2d 397. 405-406 (7th Cir. 1993)

Stoot v. City of Everett

582 F.3d 910 (9 Cir. 2009) 37, 38.

og

39, 40

Toussie v. David Park Estates, Inc.

323 F.3d 178 (2"4 Cir. 2003) 22

Warner v. Grand County

57 F.3d 962 (10th Cir. 1995) 22

Williams v. O'Leary

5 F.3d 320, 324 (7th Cir. 1995) 22

Wyatt v. Cole

504 U.S. 158 (1992) 14, 16, 29

STATUTES

12 U.S.C. § 19838 Passim

TREATISES

123 Harvard Law Review

V iil

Citations of Opinions and Orders

Entered in the Case

Crowe v. County of San Diego 608 F.3d 406 (9%

Cir. 2010). Filed January 14, 2010; amended

yr

January 27, 2010; second amendment June 18, 2010

Crowe v. County of San Diego 359 F .Supp.2d

994 (S.D. Cal. 2005). Decided February 28, 2005

Crowe v. County of San Diego 303 F.Supp.2d

1050 (S.D. Cal. 2004). Decided February 17, 2004

Basis for Jurisdiction

The Ninth Circuit Court of Appeals decision

was filed January 14, 2010 and amended January 27,

2010. The Second Amendment was filed on June 18,

2010. The Ninth Circuit denied the Petition for

Rehearing on June 18, 2010

28 U.S.C. § 1291 confers jurisdiction on this

Court to review the Ninth Circuit's reversal of the

District Court's grant of summary judgment in thi

The basis for federal jurisdiction in the

matter

District Court was asserted under 28 U.S.C. § 133]

S 1367

28 U.S.C. § 1343, and 28 U.S.C. §

STATEMENT OF THE CASE

[.

INTRODUCTION

Lawrence N. Blum, Ph.D. is a_ privat

psychologist who consulted with the Escondido Police

Department on ae single case involving the

interrogation of Michael Crowe whom the Police

suspected brutally murdered his 12-year-old sister,

Stephanie Crowe, in their home on the evening of

January 20, 1998. Michael Crowe and two of his

friends who were also accused of Stephanie's murder,

and their respective family members, brought claim:

under 42 U.S.C. § 1983 against Dr. Blum arising out

of the limited consultation he had with the Escondido

Police regarding a single interrogation of Michael

Crowe

In reversing Dr. Blum's successful Motion for

Summary Judgment on all of Plaintiffs’ § 1983

claims, the Ninth Circuit Court of Appeals did not

apply the doctrine of qualified immunity to Dr. Blum

as a private individual. The case against Dr. Blum

directly implicates this Court's decision | in

Richardson v. McKnight 521 U.S. 399 (1997)

addressing the availability of qualified immunity for

private individuals in § 1983 lawsuits. In particular

Dr. Blum's involvement in the Escondido Police's

murder investigation fell squarely within the

Richardson majority's caveat of "a private individual]

briefly associated with a government body, serving

as an adjunct to government in an = essential

vovernmental activity, or acting under close official

supervision.” Richardson, supra at p. 413. Moreover

a review of federal circuit law decided alte

Richardson, especially from the Ninth Circuit,

reveals that in virtually every case the Courts have

held that qualified immunity is not available to a

private individual which calls into question the

practical feasibility of applying the majority's

historical/policy approach as opposed to the

functional approach advocated by the four dissenting

Justices in Richardson

This Court should vrant review to determine

important constitutional questions still unanswered

by the Richardson decision, to clarify the scope of the

caveats set forth by the majority Opinion, and to

examine whether the current standard provide

sufficient certainty for lower courts and just result:

for private individuals assisting police in criminal

Investlivallon:

1]

STATEMENT OF FACTS

Lawrence N. Blum, Ph.D. | a clinical

psychologist hcensed by the State of California who

maintains a private psychology practice in the Lo

Angeles area. Dr. Blum's practice consists of treating

and counseling law enforcement officers who suffer

from stress and trauma associated with the officer

work environment and experiences. Dr. Blum 1s not

aninterrogation specialist and prior to the Stephanie

Crowe murder investigation had never consulted

with any law enforcement ayvency regarding the

interrogation of a criminal suspect [App 346]

On January 23, 1998, Dr. Blum was contacted

by Sergeant Phillip Anderson of the Escondido Police

Department about an interview they were going to

conduct with Michael Crow whom they suspected of

murdering his 12-year-old sister Stephanie. Dr.

Blum met with Sgt. Anderson, Detective Ralph

Claytor, and Detective Mark Wrisley at the

Escondido Police Department. The officers showed

Dr. Blum a videotaped portion of the previous

interrogation of Michael Crowe and provided Dr.

Blum with background information regarding

Michael Crowe and his relationship with his family.

Based upon that information, Dr. Blum commented

to the police that Michael Crowe was _ probably

somewhat alienated from peer group relationships

with his family, that he appeared to be more involved

in fantasy video games as opposed to family activity,

that he likely withdrew to fantasy games as a comfort

of some kind, and that his persistent drop in grades

could be a sign of some psychological or emotional

crises. [App. 17, 332]

Dr. Blum provided the detectives with this

analysis of Michael Crowe's personality or character

as opposed to specific interview techniques and

discussed broad-brushed themes of which the officers

already had an understanding. Dr. Blum suggested

that the detectives address Michael Crowe in terms of

analogies he would understand and that it was up to

the detectives’ independent judgment as to how tc

utilize that advice during the interrogation. One of

the detectives has referred to the foregoing

consultation with Dr. Blum pnor to the interrogation

as the development of a "tactical plan." [App. 17,

332]

Dr. Blum observed a portion of the January 23,

1998 interrogation of Michael Crowe conducted by

Detectives Claytor and Wrisley. Dr. Blum did not

interrogate Michael Crowe at any point in time. Dr.

Blum did not direct or advise the police as to the

length or timing of the interview with Michael Crowe,

the manner in which Michael Crowe should be

treated during the interview, or any questions which

the detectives should ask Michael Crowe. Dr. Blum

did not direct or advise the detectives that they

should confront Michael Crowe with forensic evidence

of his guilt, that they should threaten him in any

manner, that they should promise him any leniency,

or that they should le to or deceive him. Detectives

Claytor and Wrisley testified that the January 23,

1998 interrogation of Michael Crowe was based upon

their own independent judgment and was not under

the direction and control of Dr. Blum. [App. 284, 297]

Dr. Blum did not consult or participate in any

manner in any other interrogations conducted by the

Escondido Police Detectives, including the three pre’

January 23 interrogations of Michael Crowe, the 1°

hour and 9%-hour interrogations of Aaron Houser,! or

the 13%-hour and 12-hour interrogations of Joshua

Treadway.

Michael Crowe, Aaron Houser and their family

members have alleged a variety of claims against Dr.

Blum under 42 U.S.C. § 1983. Dr. Blum asserted

that he is entitled to qualified immunity on Plaintiffs’

' Although Dr. Blum had nothing to do with Aaron

Houser's interrogations, the arguments raised in this Petition

are fully applicable to Houser's interrogations and claims

against Dr. Blum.

§ 1983 claims before both the District Court and the

Ninth Circuit. Neither Court applied qualified

immunity to the claims asserted against Dr. Blum.

IT.

THE LOWER COURT DECISIONS

The District Court granted summary judgment

in favor of Dr. Blum on all claims made by Plaintiffs.

The Ninth Circuit Court of Appeals reversed the

District Court on Plaintiffs' conspiracy claims only.

A. The District Court Decision Granting

Summary Judgment to Dr. Blum

The District Court, Honorable John S. Rhodes,

granted summary judgment to Dr. Blum on each and

every claim alleged by Plaintiffs. [App. 354]

With respect to the Fourth Amendment § 1983

claims raised by Plaintiffs, the District Court noted

that it was undisputed that Dr. Blum did not

physically participate in the arrests of the boys or the

searches of their residences. [App. 213] The District

Court further determined that under Ninth Circuit

law, in any § 1983 action against a private individual

the plaintiff must establish that the private

individual was a- proximate cause of the

Constitutional violation. [App. 214] The District

Court held:

"Here, there is absolutely no evidence

that defendant Blum had any control

over the other defendants' decision to

conduct the challenged searches and

arrests. Accordingly, as a matter of

law, defendant Blum did not

proximately cause any Fourth

Amendment violation and thus is

entitled to summary judgment with

respect to the Fourth Amendment

claims of all three boys." [App. 214-215]

As to Plaintiffs' Fifth Amendment claims

arising out of the alleged coercive interrogations, the

District Court again determined that there was no

evidence that Dr. Blum was the cause of any Fifth

Amendment violation. The District Court heid:

"As for defendant Blum, as noted in

section L.A. supra, defendant Blum, asa

private actor, is not the proximate cause

of a constitutional violation committed

by a state actor unless he ‘had some

contro! over' the state actors' decision to

commit the unconstitutional act. See

Franklin, 312 ¥.3d at 446. There is no

evidence in the record suggesting that

defendant Blum had such control over

the police officer defendants." [App.

284]

With respect to Plaintiffs’ Fourteenth

Amendment claims, the District Court held that the

evidence was insufficient to meet the rigorous shocks

the conscience standard necessary for a violation of

the Fourteenth Amendment. In its detailed decision

the District Court held:

"Having viewed the _ videotaped

interviews and interrogations of Joshua

Treadway and Aaron Houser in their

entirety,? and having also reviewed the

transcripts thereof, the court concludes

that defendants’ behavior during the

interviews and interrogations, although

not commendable, was not 'so egregious,

so outrageous that it may fairly be said

to shock the contemporary conscience.'

[citation omitted] While it cannot be

forgotten that the boys were juveniles at

the time of the interrogations, and

while some of the interrogations were

long, the manner of interrogations was

neither egregious, outrageous, nor

shocking. This is not a case of physical

or psychological torture. Defendants

never yelled at the boys or even raised

their voice. The boys were given food

and water and bathroom breaks, evenif

not always immediately. Although the

police may lied at times, such conduct 1s

not outrageous and, in fact, does not

even necessarily amount to coercive

conduct. [citation omitted] Similarly, it

is not outrageous that defendants

attempted to extract confessions from

the boys by telling them that they could

¢ The District Court reviewed the videotapes of the

entire interrogations in open court with an invitation to all

?

counsel that they may be present

get treatment rather than jail if they

confessed given that the Ninth Circuit

recently found that similar statements

do not even rise to the level of being

coercive. [citation omitted] Moreover,

although the boys became emotional at

times during the questioning, the use of

questions that elicit an emotional

response does not transform the

interrogation into one that 'shocks the

conscience.' {citation omitted] Finally,

although defendants employed a ‘good

cop/bad cop' approach during some of

the interviews, such a manner of

interrogation is relatively common and

certainly not shocking, even when

juveniles are involved." [App. 291-293]

In addition, the District Court determined that

at least as to the police officers, qualified immunity

would entitle them to summary judgment on

Plaintiffs' Fourteenth Amendment claims.

"Moreover, even if it were determined

that defendants’ conduct did violate the

boys' Fourteenth Amendment

substantive due process rights, a

reasonable officer would not have

known that the interrogation of the

boys amounted to a violation of their

Fourteenth Amendment rights’ of

substantive due process given that the

interrogations lacked the brutality that

has. previously marked the _ police

conduct found by the courts to be

‘shocking to the conscience." [App. 295-

296]

With respect to Michael Crowe's Fourteenth

Amendment claim, the Court determined that there

was no concrete evidence that Dr. Blum engaged in

any conspiracy to violate Michael Crowe's rights to be

free from government conduct that shocks the

conscience and furthermore that Dr. Blum did not

engage in any behavior that shocked the conscience.

In particular, the District Court found:

"The Crowe plaintiffs’ claims against

defendants Blum and McDonough

appear to be predicated upon the

conduct of Michael's interrogation. A

review of the record reveals no concrete

evidence of a conspiracy encompassing

the violation of Michael Crowe's Fourth

[sic] [Fourteenth] Amendment right to

be free of government conduct that

‘shocks the conscience' of which these

defendants were a part.

Moreover, neither defendant himself

directly engaged in conduct that 'shocks

the conscience.’ The purpose of an

interrogation is procure a confession.

Therefore, it does not ‘shock the

conscience’ that defendant Blum

provided the police with advice

regarding how to best procure a

confession from Michael Crowe based on

9

Michael's psychological makeup where

there is no evidence that defendant

Blum advised using the type of ‘brutal’

techniques that have been held to

violate the Fourteenth Amendment

substantive due process clause.

Because defendant Blum and

McDonough did not engage in behavior

that 'shocks the conscience' so as to

support a claim for violation of the

Fourteenth Amendment substantive

due process clause, these defendants are

entitled to summary judgment." [App.

297)

With respect to Aaron Houser's defamation

claims against Dr. Blum arising from his comments

to the police, the District Court granted summary

judgment in favor of Dr. Blum on First Amendment

grounds. [App. 333-336]

Finally, the District Court addressed Plaintiffs’

claims that Dr. Blum engaged in a conspiracy to

violate Plaintiffs’ civil rights, holding that there was

no evidence that Dr. Blum was involved in such a

conspiracy. The District Court held:

"As noted in section I.A., supra,

plaintiffs allege that there was a

‘common objective to convict and

incarcerate the boys' and that defendant

Blum was a part of this 'scheme to

blame and punish the boys' for

Stephanie's murder. [citation omitted]

According to plaintiffs, the objective of

LO

the conspiracy was to be accomplished

by means of illegal interrogations,

arrests, searches, and seizures.

Here, although defendant Blum

participated in the interrogation of the

boys, there is absolutely no evidence

that he was even aware of the alleged

conspiracy or its objectives, let alone

that he was a part of this conspiracy. ...

First, defendant Blum did not have a

prior relationship with the other

defendants from which one could infer

that he was a participant in the alleged

conspiracy to wrongfully arrest the boys

or that he would have any interest in

participating in a conspiracy which,

plaintiffs contend, was directed at

protecting Officer Walters and the

Escondido Police Department from

criticism.

Finally, it should be emphasized that

even if by giving the advice he gave,

defendant Blum violated the boys' Fifth

Amendment rights (which the court has

concluded he did not), to be held liable

for false arrest/false imprisonment, the

evidence must disclose not only that

defendant Blum's actions were illegal

but that his conduct was 'in furtherance

of a common agreement or

understanding to achieve the unlawful

1]

purpose of the Escondido defendants.

lcitation omitted] As stated, there is

simply no evidence that defendant

Blum's participation in the

interrogation of Michael Crowe,

whether constitutional or not, was in

furtherance of a common agreement or

understanding to achieve the alleged

unlawful purpose of the Escondido

defendants in pursuing the arrests and

prosecution of the boys.

Because no reasonable factfinder could

find that defendant Blum was a

participant in the alleged conspiracy,

defendant Blum is entitled to summary

judgment with respect to the boys' false

arrest/false imprisonment claim." [App

345-347]

The District Court granted Dr. Blum's Motion

for Summary Judgment as to all claims by Plaintiffs.

[App. 354]

B. The Ninth Circuit Reversal of Summary

Judgment on the Conspiracy Claim

The Ninth Circuit Court of Appeals reversed

the District Court's grant of summary judgment to

Dr. Blum on Plaintiffs' conspiracy claim alone. In

contrast to the District Court's extraordinarily

detailed and thorough evaluation of Dr. Blum's

conduct and involvement with the Escondido Police

Department's investigation of Stephanie Crowe's

12

murder, the Ninth Circuit dedicated a_ singl

paragraph to Dr. Blum's involvement in this matter

The Ninth Circuit stated:

"The record shows that the quality of

Blum's involvement in the

interrogations is not categorically

inconsistent with a tacit ‘meeting of the

minds.' According to one of the

detectives, Blum helped the_ police

formulate a ‘tactical plan’ to approach

the interview. Moreover, the detectives

‘pretty much’ followed his advice after

these consultations. Insofar as these

tactics and lines of questioning by the

detectives shock the conscience, as

demonstrated above, summary

judgment in favor of Blum is

unwarranted. A meeting of the minds

can be inferred from circumstantial

evidence, and Blum's involvement in

the interrogations, particularly in

formulating and directing the tactical

plan, is sufficient for a reasonable

factfinder to conclude that it was

‘unlikely to have been undertaken

without an agreement,' of some kind

between the defendants lcitation

omitted] We therefore reverse the

district court's grant of summary

judgment on this point." |App. 67°68]

LEGAL ARGUMENT

IV.

APPLICATION OF QUALIFIED IMMUNITY

TO § 1983 LAWSUITS

A public law enforcement officer is entitled to

assert qualified immunity as to § 1983 claims

alleging constitutional violations arising out of an

interrogation of a criminal suspect as well as

conspiracies to violate constitutional rights. Chavez

v. Martinez 538 U.S. 760, 766, 773 (2003); Wyatt v

Cole 504 U.S. 158 (1992). The doctrine of qualified

immunity presents significant substantive and

procedural protections against § 1983 lawsuits

In Pearson v. Callahan 129 S.Ct. 808 (2009)

this Court recently enunciated the important policies:

underlying the application of qualified immunity to §

1983 claim

"The doctrine of qualified immunity

protects government officials ‘from

hability for civil damages insofar a

their conduct does not violate clearly

established statutory constitutional!

rights of which a reasonable person

would have known.' [citation omitted]

The protection of qualified immunity

applies regardless of whether th

government officials’ error is 'a mistak'

of law, a mistake of fact, or mistak

based on mixed question of law and

fact.’ rf itation omitted]

Because qualified immunity is an

immunity from suit rather than a mere

defense to liability ... it is effectively lost

if a case 1s erroneously permitted to go

to trial lcitation omitted)

Accordingly, ‘we repeatedly have

stressed the importance of resolving

immunity questions at the earliest

possible stage in litigation.’ [citation

omitted] Pearson, supra, 129S.Ct. at p

S15

While the legal significance of qualihed

immunity for public officials 1s unquestioned, the

application of qualified immunity to private parties |

far from settled

V

RICHARDSON V. MCKNIGHT

In Richardson v. McKmight (1997) 521 U.S

399, supra, two prison guards who were employed by

a private company which operated a ‘Tennessee

prison were sued by a prisoner under 42 U.S.C. §

1983 for allegedly injuring the prisoner through the

use of extremely tight physical restraints. The

private guards asserted a qualified immunity from &

1983 lawsuits. After the District Court and Sixth

Circuit demed the guards' assertion of qualhlhed

immunity, this Court vranted certiorari

\ The Richardson Majority Opinion

In the Court's 5°4 decision, the majority

opimon in Richardson determined that under the

narrow facts and circumstances involving a privat

company managing a prison, the private prison

yuards were not entitled to assert quahfied immunity

from suit under § 1983. Richardson, supra at pp

101,413. In reaching this conclusion, the Richardson

majority analyzed the Court's decision in Wyatt \

Cole 504 U.S. 158 (1992) which held that a privat

individual accused of conspiring with government

employees was not entitled to assert qualified

Immunity on the "narrow" circumstance where the

private individual was "invoking the state replevin

garnishment or attachment statute.” Wyatt, supra at

pp. 168° 169; Richardson upra at p. 404 In

analyzing the Wyatt deemion, the Richardson

majyomty determined that there were two factor

which must be analyzed in order to determine

whether qualified immunity apphed to the privat

prison guards in the § 19853 action before it ny

history of providing immunity to prison guards and

the pohey concerns or purposes underlying immunity

which would warrant applying it tothe prison guard

nthe § 1983 action before if

The Richardson majomty concluded that

history did not reveal a "firmly: rooted"” tradition of

immunity applicable to privately employed prison

yuard Richardson, supra at p. 404. ‘The majority

letermined that private contractor were Hheavil'

involved in prison management activith iS far back

the 19" century and there was. ne molusive

yvIdenc ial torical traditior lf ymmun

private parties carrying out these functions.

Richardson, supra at pp. 405-407. History, therefore,

did not provide any significant support for the

immunity claim of the private prison guards.

Richardson, supra at 407.

The majority in Richardson determined that it

was a closer question as to whether the purposes

underlying qualified immunity warranted its

application to the prison guards. Richardson, supra

at pp. 407-408. The Court recognized that one of the

primary purposes of the immunity doctrine is to

protect public officials, as well as society, from

unwarranted timidity by public officials who may be

deterred from exercising their authority through the

threat of lawsuits. Richardson, supra at pp. 407-408.

The majority opinion rejected the prison guards'

argument that since they perform the same work as

state prison guards, qualified immunity must be

apphed to a similar degree. The majority held that

the mere performance of a government function

should not make the difference between unlimited §

1983 hability and qualified immunity especially for a

private person who performs a job. without

government supervision or direction. Richardson,

supra at p. 409. The majority also noted that

marketplace pressures were different for a private

company versus a government employer and thus

there was less concern with unwarranted timidity.

Richardson, supra at p. 409-410. The majority

indicated that private employees may not be deterred

by the threat of damages due in part to the

availability of the comprehensive insurance

requirements for private companies as well as the

ability to offer higher pay or extra benefits

wi

unavailable to civil service employers. Richardson,

supra at p. 412-413. Finally, the majority noted that

the risk of distraction from lawsuits alone is not a

sufficient ground for immunity. Richardson, supra at

p. 412.

The majority concluded that private prison

guards, unlike those who work directly for the

government, do not enjoy immunity from suit in a §

1983 case. Richardson, supra at p. 412.

B. The Richardson Majority Caveats

The majority opinion in Richardson carefully

set forth three caveats to their holding that qualified

immunity did not apply to the private prison guards

for § 1983 hability under the _ particular

circumstances of the case. First, the Court was not

deciding whether the defendants were hable under §

1983 or whether they acted under color of state law.

Richardson, supra at. p. 413. The second caveat,

which has significant applicability to Dr. Blum's case,

was stated by the majority as follows:

"Second, we have answered the

immunity question narrowly, in the

context in which it arose. That context

is one in which a= private firm,

systematically organized to assume a

major lengthy administrative’ task

(managing an institution) with limited

direct. supervision by the government,

undertakes that task for profit and

potentially in competition with other

firms. The case does not involve a

18

private individual briefly associated

with a governmental body, serving as

an adjunct to government in an

essential governmental activity, or

acting under close official supervision."

Richardson, supra at p. 413.

The third caveat set forth by the majority was

the potential applicability of a "good faith" defense

which the Richardson majority declined to decide in

that case. Richardson, supra at p. 413.

C. The Richardson Dissent

Four Justices dissented from the majority

opinion in Richardson. The dissent authored by

Justice Scalia and joined by Chief Justice Rehnquist,

Justice Kennedy, and Justice Thomas, argued that a

functional approach should be apphed to determine

whether qualified immunity should be extended to

private individuals. Richardson, supra at pp. 414-

416. The dissent contended that the historical

underpinnings underlying immunity established that

private parties who were performing governmental

functions which give rise to qualified immunity

should also be entitled to assert qualified immunity.

Richardson, supra at pp. 414-416.

The dissent questioned the holding that

qualified immunity should be "unavailable to

employees of private prison management firms, who

perform the same duties as_ state-employed

correctional officials, who exercise the most palpable

form of state pohce power, and who may be sued for

Richardson, supra

"

acting ‘under color of state law.'

19

at p. 414. The dissent argued that the majority's

historical approach was flawed and that the lack of

case law supporting qualified immunity for private

prison employees should not be disqualifying.

Richardson, supra at pp. 414-416. Instead, the

dissent relied upon prior Supreme Court precedent

which held that immunity analysis rests on

functional categories, not on the status of the

defendant. Richardson, supra at p. 416-417. The

dissent recognized that private individuals have

regularly been accorded immunity when they perform

a governmental function that qualifies. Richardson,

supra at pp. 417-418.

The dissent suggested that the history of the

functional approach should govern whether qualified

immunity is extended to a private individual and that

it should not be dependent upon policy reasons.

Richardson, supra at p. 418. The dissent nonetheless

analyzed the majority's policy reasons and concluded

that the market pressures and insurance analysis

employed by the majority was incorrect. Richardson,

supra at pp. 419-420.

The dissent concluded that:

"[Slince there is no apparent reason,

neither in history nor in policy, for

making immunity hinge upon the

court's distinction between public and

private guards, the precise nature of

that distinction must also remain

obscure. ...

Today's decision says that two sets of

prison guards who are indistinguishable

20

in the ultimate source of their authority

over prisoners, indistinguishable in the

powers that they possess over prisoners,

and indistinguishable in the duties that

they owed toward prisoners, are to be

treated quite differently in the matter of

their financial liability. .... Neither our

precedent, nor the historical

foundations of section 1983, nor the

policies underlying section 1983,

support this result." Richardson, supra

at pp. 422-423.

VI.

CIRCUIT COURTS' DENIAL OF

QUALIFIED IMMUNITY AFTER RICHARDSON

Since Richardson was decided nearly every

Circuit Court which has considered whether qualified

immunity is available to a private individual in a §

1983 action has denied the private party's assertion

of qualified immunity.

The Sixth Circuit in Harrison v. Ash Co. 539

I’.3d 510, 521-525 (6t* Cir. 2008) applied the analysis

employed in Richardson to hold that nurses who

worked for a private company that provided medical

services to a county jail were not entitled to assert

qualified immunity on a § 1983 claim for failure to

provide medical care to prisoner. In Cooper v.

Parrish 203 F.3d 937 (6 Cir. 2000) the Sixth Circuit

also held that a private attorney who worked

alongside prosecutors in an unofficial capacity in

pursuing legal action against plaintiff's nightclubs

was not entitled to qualified immunity under

21

Richardson for plaintiff's § 1983 claims.

The Eleventh Circuit has also held that under

Richardson, a private prison physician could not

claim qualified immunity for failing to provide

prompt medical treatment to a prisoner. Hinson v.

Edmond 192 F.3d 1342 (11 Cir. 1999). In Rosewood

Services v. Sunflower Diversified Services 413 F.3d

1163 (10th Cir. 2005), the Tenth Circuit held that a

private non-profit corporation which received and

distributed state and federal funds to community

services providers to assist developmentally disabled

residents was not entitled to assert qualified

immunity pursuant to Richardson.3

A Republican Party Chairman was held not to

be entitled to qualified immunity for conspiring with

state officials to unlawfully prevent a builder from

constructing a single-family home on property he

owned pursuant to the Second Circuit ruling in

Toussie v. David Park Estates, Inc. 323 F.3d 178 (24

Cir. 2003). In Malinowski v. DeLuca 177 F.3d 623

(7th Cir. 1999), the Seventh Circuit held that qualified

immunity was not available under Richardson to

private building inspectors on § 1983 claims.‘

3 Prior to Richardson, the Tenth Circuit had held that

private individuals who performed strip search of plaintiff at

request of police were entitled to qualified immunity on

plaintiff's §1983 claims). See Warner v. Grand County 57 F.3d

962 (10th Cir. 1995)

4 In Sain v. Wood 512 F.3d 886, 892, the Seventh

Circuit recognized that prior to Richardson, it had granted

qualified immunity to privately employed prison psychologists

because they were performing a government function, Williams

v. O'Leary 55 F.3d 320, 324 (7th Cir. 1995); Sherman v. Four

County Counseling Ctr. 987 F.2d 397, 405-406 (7th Cir. 1993)

(footnote continued)

The only Circuit which appears to have

extended qualified immunity to private individuals 1s

the First Circuit. In Burke v. Town of Walpole 405

F.3d 66 (1st Cir. 2005) a private forensic odontologist

who was acting as a consultant with the District

Attorney's office in a criminal investigation was held

to be entitled to qualified immunity. In Camilo-

Robles v. Hoyos 151 F.3d 1 (1st Cir. 1998) the Court

held private psychiatrist could assert qualified

immunity who consulted with police department as to

psychiatric status of police officer who injured

plaintiff in § 1983 action. However, the First Circuit

failed to even mention Richardson in arriving at their

conclusion that qualified immunity was ivailable to

the private parties. see Sain, supra at p. 892.

The Ninth Circuit has been the most

restrictive Court in applying qualified immunity to

private parties, utilizing Richardson v. McKnight to

estabhsh a blanket prohibition against private actors

asserting qualified immunity in its jurisdiction.

Initially in Jensen v. Lane County 222 F.3d 570 (9th

Cir. 2000) the Ninth Circuit addressed the

Richardson majority's historical underpinnings and

immunity policies factor in holding that qualified

immunity was categorically unavailable to a private

physician who, along with county officials, committed

plaintiff to a psychiatric facility. However, since

Jensen, the Ninth Circuit has extended a blanket

prohibition against private individuals' claims of

qualified immunity in § 1988 actions, holding that

but that Richardson majority rejected the public function test

and therefore the law in the Circuit was inconclusive.

23

the defendant's status as a_ private party

automatically disqualified him from qualified

immunity status. Franklin v. Fox 312 F.3d 423, 440

(9th Cir. 2002) (blanket denial of qualified immunity

to private individual accused of conspiring with police

to violate defendant's Sixth Amendment rights when

private individual interrogated or questioned plaintiff

in jail without an attorney being present); Gonzales

v. Spencer 336 F.3d 832, 835 (9th Cir. 2003) (private

attorney hired to defend county in civil rights action

denied qualified immunity by Ninth Circuit pursuant

to Richardson because she was a private party and

not a government employee); Clement v. City of

Glendale 518 F.3d 1090, 1096-1097 (9 Cir. 2008)

(holding that private towing company may not assert

qualified immunity because the defense is generally

not available to private defendants in § 1983

lawsuits).

Indeed, as recently as September 2010, the

Ninth Circuit tn Delia v. City of Rialto 2010 U.S.App.

LEXIS 18836 (9 Cir. 2010) held that a private

investigator retained by the City to assist in an

internal affairs investigation against a firefighter

was not entitled to qualified immunity simply

because he was a private party. The Ninth Circuit's

blanket prohibition against any private actor

asserting qualified immunity in its jurisdiction

explains the District Court's and the Ninth Circuit's

failure to extend qualified immunity to Dr. Blum

despite the fact he asserted his right to qualified

immunity and briefed the issue before both Courts.

VIL.

APPLICATION OF RICHARDSON TO DR. BLUM

A. Dr. Blum is Entitled to Assert Qualified

Immunity Under the Richardson Caveat

The majority in Richardson carefully carved

out an exception to the requirement that there must

be a firmly-rooted tradition in history which supports

immunity for a private party and that the purposes of

immunity must be served before qualified immunity

can be extended to a private party. The majority set

forth a caveat that "a private individual briefly

associated with a government body, serving as an

adjunct to government in an essential governmental

activity, or acting under close official supervision"

should be entitled to assert qualified immunity.

Richardson, supra at p. 431. However, the Circuit

Courts have essentially ignored this caveat in post

Richardson decisions.5 Therefore, because Dr. Blum's

case involves unique facts which fall squarely under

this caveat, this Court should clarify the application

and scope of qualified immunity to _ private

individuals under the "briefly associated/close

supervision" caveat in Richardson.

5 The decision in Bartell v. Lohiser 215 F.3d 550, 556

557 (6 Cir. 2000) appears to be the sole exception. In Bartell,

the Court determined that a private company which provided

foster care services to the State was closely supervised by the

State's Family and Dependents Agency and thus was entitled to

assert qualified immunity under Richardson. Bartell, supra at

pp. 556-557.

The record in this case unequivocally

establishes that Dr. Blum's limited involvement in

the Stephanie Crowe murder investigation is a

perfect fit under the criteria set forth in Richardson's

second caveat. First, Dr. Blum was briefly associated

with the Escondido Police Department. In fact, his

only association with the Escondido Police

Department involved the Stephanie Crowe murder

investigation. [App. 346] Moreover, although the

police conducted numerous lengthy interrogations of

the three criminal suspects, Dr. Blum only consulted

with the police on a single interrogation involving

Michael Crowe. [App. 332] Thus, Dr. Blum

unequivocally was "a private individual briefly

associated with a government body" under the

Richardson caveat.

In addition, the record in this case also

unequivocally establishes that Dr. Blum was "serving

as an adjunct to government in an essential

governmental activity." Richardson, supra at p. 413.

Dr. Blum served as a consultant to the Escondido

Police Department at the behest of Sergeant

Anderson with respect to a single interrogation of

Michael Crowe in conjunction with the Escondido

Police Department's investigation of the brutal

murder of 12-year-old Stephanie Crowe. The

interrogation of criminal suspects in a murder

investigation is undoubtedly an_— essential

governmental activity. See Chavez, supra.

Finally, the record in this case indicates that

Dr. Blum more than satisfies the "acting under close

official supervision" criteria in the Richardson

caveat. This caveat may have had more applicability

if Dr. Blum had actually conducted the interrogation

of Michael Crowe himself; however, he did not. [App.

214-215] Unlike most private defendants in § 1983

actions, Dr. Blum did not directly engage in any

conduct which violated any constitutional right. As

the District Court determined, Dr. Blum did not

exercise control over the detectives during the

interrogation or their murder investigation, nor

engage in any conduct which shocked the conscience,

findings which are undisturbed by the Ninth Circuit.

[App. 284, 294] Therefore, Dr. Blum clearly meets

the "under close official supervision" factor of the

Richardson caveat.

As previously set forth, the Circuit Courts are

virtually unanimous in denying qualified immunity

to private individuals in § 1983 actions. The Circuit

Courts generally fail to address the Richardson

Court's second caveat by which this Court has

indicated qualified immunity may be appropriately

asserted by a private individual, Qualified immunity

should be extended to Dr. Blum under the unique

facts of this case which would result in this Court

providing further guidance and clarification as to

under what circumstances a private individual is

entitled to assert qualified immunity under the

Richardson majority Opinion.

B. The Richardson Majority Criteria for

Extending Qualified Immunity to Private

Individuals Should Be Re-Examined

As previously set forth, since the Richardson

case was decided, the Circuit Courts have virtually

unanimously rejected the application of qualified

immunity to private parties in § 1983 lawsuits in

analyzing the historical underpinnings and immunity

purposes criteria established by the majority

Indeed, the Ninth Circuit has extended the

Richardson Opinion as a virtual complete bar to

private parties asserting qualified immunity in thi:

jurisdiction

In March of this year the Harvard Law Keview

published the scholarly treatise Veve/opments 1n the

Law: State Action and the Public Private Distinction

Private Party Immunity from Section 1983 Suits, 123

Harvard Law Review 1266 (March 2010) This

treatise noted that

"Lower courts have attempted to apply

[the Richardson majority] standard, but

have been confused by Richardson's use

of precedent and the complex mix of

factors in its analysis and have reached

divergent conclusions about various

categories of private actors. It is time

for the court to reconsider’ the

Richardson standard and either clarify

its own logic or adopt a new standard."

123 Harvard Law Review at p. 1267

The court's narrow holdings in Wyatt

and Richardson — the only two opinion

to address private qualified immunity

squarely — leave the applicability of th

history and policy standard uncertain

The Richardson Opinion, upon which

lower courts principally rely, fails to

address complex issues of precedent and

to clarify its own logic in applying the

standard Lower courts have

unsurprisingly reached contradictory

results in trying to apply Richardson

123 Harvard Law Review at p. 1270

Lower courts have varied widely in

applying Richardson, with the majority

of cases denying qualified immunity

Seven Circuits have used Richardson a

a test, refusing to grant private actors

qualified Immunity In any

circumstances, While only one Circuit

has expheitly yvranted private actors

qualified immunity under Richardson

others have arguably done so implicitly

so immunity 1s not always categorically

precluded. One Circuit has held that

quahfhied immunity applied in every

case 1t has considered, even though it

has not rehed on Wyatt or Richardson

The remaining four Circuits have no

holding applying Richardson Much

hitagation continues at the district court

level without circuit-wide resolution."

123 Harvard Law Review at p. 127]

yt)

\ ntradicto} Immunity Landard

Mive { | Patchwork hability acro

jurisdictions raises privatization cost

“A firms adapt to each jurisdiction

rule requiring differences in benefit

nad per onnel practice CVen WILnAITN &

Laat Federal | hould not creat

Conrre Is Empowered to solve the

ihe inconsistency of outcome mp federal

court make thi htagation untlair to botl

lefendant ind pissgntill

nstitutional lability and redre

lepr nd not only on who the parts ire

ut also upon Wher thy

rpddition, the deluge of mor tha ae)

iS » Jar ¢ ©?) hethey qualil

lmmunity apply in added cost, n

COT) rdered by hRochard On.tnat ha bea!

ind will continue to be passed on t

OCICLY he Ost ol bitigaatye nm) ull

continu bsent int (ryt

i hese problem eae bare

pdare ed my ote mrilaed

mmunity tandard Cxplaming

behest of the sovereiy) how the factor

relate and which a 1] f in}

he bye i? {| | rc ’

ternative! t! int Ou reqori

Lye landara |} ri in lmmuysl l

determined to be based on certain state

action tests (that is, a case-by-case

functional standard). While the latter

approach is less consistent than the

former, it would reduce the inquiry toa

single point and be no more inconsistent

than the current standard. The court

has had opportunities to review the

issue, but it has not done so.

Otherwise the aggregate costs of

inconsistency will continue to rise, and

state privatization will continue to be

burdened needlessly. A clear, logically

coherent standard is something upon

which all states and their citizens can

and should insist.". 123 Harvard Law

Review at pp. 1277-1278.

This recent treatise enunciates persuasive

reasons why writ of certiorari should be granted in

the present case to clarify and/or re-examine the

standard under Richardson for granting qualified

immunity to private individuals.

Finally, simple justice should cause this Court

to grant Dr. Blum's writ of certiorari in the present

case. By assisting the police in their investigation of

Stephanie Crowe's murder, Dr. Blum has been found

to be a state actor for purposes of § 1983 lability

[App. 213-214] Moreover, since the Ninth Circuit has

determined that Dr. Blum could be liable on a

conspiracy theory under the incredibly nebulous

standard of "not categorically inconsistent with a

meeting of the minds," Dr. Blum could conceivably be

lable for the actions of the Escondido Police

3]

Detectives.

Dr. Blum's extremely limited participation in

the Stephanie Crowe murder investigation

essentially consisted of consulting with the police on

a single interrogation of Michael Crowe on January

23, 1998. The Escondido Police, on the other hand,

according to the Ninth Circuit Opinion conducted

four separate interrogations of Michael Crowe, two

separate interrogations of Aaron Houser, and three

separate interrogations of Joshua Treadway. The

Kscondido Police interrogated these three individuals

for a total of nearly 45 hours. [App. 12-30] In

addition, the police conducted numerous arrests and

searches and seizures in which Dr. Blum had

absolutely no part.

The Escondido Police who performed the many

interrogations, the arrests, and the searches and

seizures are entitled to assert qualified immunity in

this case and could conceivably obtain a complete

exoneration for their actions under the qualified

immunity doctrine. To prohibit Dr. Blum, who had

meager participation in the massive scope of the

Stephanie Crowe murder investigation, from

asserting qualified immunity simply because of his

status as a private citizen 1s an extreme injustice.

This is precisely the type of case where writ of

certiorari should be granted so that this Court may

re-examine and clarify the contours of the qualified

immunity doctrine for private individuals and

consider the stark ramifications in denying qualified

immunity to private individuals who provide lhmiuted

assistance to law enforcement officials in criminal

investigations.

VIII.

PLAINTIFFS' FOURTEENTH AMENDMENT

RIGHTS WERE NOT VIOLATED

AND THE LAW

WAS NOT CLEARLY ESTABLISHED

THAT THE SUBJECT INTERROGATIONS

VIOLATED THE FOURTEENTH AMENDMENT

In Pearson, supra, this Court clarified that in

evaluating the two-prong test: (1) whether the facts

alleged or shown by the plaintiff make out violation

of a constitutional right and (2) if so, whether that

right was clearly established at the time of

defendant's alleged misconduct that it was not

necessary that those prongs be evaluated in that

exact sequence. Pearson, supra at pp. 815-816. In

the instant case, regardless of the sequence in which

the two-prong test is evaluated it is clear that Dr.

Blum is entitled to summary judgment under a

qualified immunity analysis.

The Ninth Circuit explained its reversal of the

grant of summary judgment to Dr. Blum as to the

conspiracy claim "insofar as these tactics and lines of

questioning by the detectives shock the conscience, as

demonstrated above, summary judgment in favor of

Dr. Blum is unwarranted." [App. 67] However, in

utilizing the two-pronged approach clarified by this

Court in Pearson, supra, the evidence does not

establish: 1) that the "tactics and lines of

questioning" by the detectives during Plaintiffs’

interrogations rose to the stringent shock the

conscience level of conduct necessary to establish a

Fourteenth Amendment violation; 6 and 2) nor was

the right to be free from the particular "tactics and

lines of questioning" employed by the Escondido

detectives clearly established.

A. Plaintiffs’ Fourteenth Amendment Rights

Were Not Violated

As this Court recognized in Chavez _v.

Martinez, supra, deprivations of liberty caused by

"the most egregious official conduct" or behavior that

"shocks the conscience" may violate the Fourteenth

Amendment due process clause giving rise to a § 1983

claim. Chavez, supra at p. 774 (Opinion by Justice

Thomas); County of Sacramento v. Lewis 523 U.S.

833 (1998).

With respect to interrogations which may

violate the Fourteenth Amendment, Justice Kennedy

characterized such conduct as the "use of torture or

its equivalent in an attempt to induce a statement

that violates an individual's fundamental right to

liberty of the person. [citation omitted] The

Constitution does not countenance the official

imposition of severe pain or pressure for purposes of

interrogation." Chavez, supra at p. 796, concurring

6 As previously set forth, Dr. Blum consulted with the

Escondido Police Officers on the single January 23, 1998

interrogation of Michae! Crowe and did not consult or

participate in any manner jn the interrogations of Aaron Houser

or Joshua ‘Treadway or any of the other interrogations of

Michael Crowe conducted by the Escondido Police. Insofar as

Hlouser is making claims based on either his or Michael Crowe's

interrogation, the arguments in this Petition apply fully to

Houser's claims

and dissenting Opinion by Justice Kennedy). Also

see footnote 1 in Justice Stevens' concurring and

dissenting Opinion in Chavez, supra at p. 787, listing

Supreme Court cases where “unusually coercive

police interrogation procedures" violated’ the

Fourteenth Amendment. (Darwin v. Connecticut,

391 U.S. 346 (1968) (suspect interrogated for 48

hours incommunicado while officers denied access to

counsel); Beecker v. Alabama 389 U.S., 36 (1967)

(officer fired rifle into suspect's ear and said if you

don't tell the truth I'm going to kill you); Clewis v.

Texas 386 U.S. 707 (1967) (suspect was arrested

without probable cause, interrogated for nine days

with httle food or sleep, and gave three unwarranted

"confessions" each of which he _ immediately

retracted); Reck v. Pate 367 U.S. 433, 439 - 440

(1961) (mentally-retarded youth interrogated

mcommunicado for a week, during which time he was

frequently ill, fainted several times, vomited blood on

the floor of the police station, and was twice taken to

the hospital on a stretcher).

It is undisputed that Dr. Blum did not engage

in any conscience-shocking or egregious activity and

did not interrogate any of the Plaintiffs in this

matter. [App. 297] Moreover, with respect to

Plaintiffs’ conspiracy claim, the record in the instant

case 1s devoid of the conscience-shocking, egregious

conduct equivalent to torture which satishes the

demanding Fourteenth Amendment standards. The

District Court, after exhaustively examining the

videotapes of the interrogations, determined that the

interrogations conducted by the Escondido Police did

not rise to the conscience-shocking standard required

for a Fourteenth Amendment violation. [App. 291-

Or

re)

298]

The record is devoid of any evidence that the

police used any form of physical force or coercion,

that the officers yelled at or even raised their voices

during any of the interrogations, or deprived the boys

of sustenance as this Court has required in previous

cases to sustain a Fourteenth Amendment violation

based upon the interrogation of a criminal suspect.

(See District Court Opinion, App. 291-298.) Because

the police officers' interrogation of Michael Crowe

does not rise to the level of conscience-shocking and

egregious conduct necessary to support a Fourteenth

Amendment claim, qualified immunity would be

applicable to the claims against Dr. Blum.

B. The Law Was Not Clearly Established That

the "Tactics and Lines of Questioning" in the

Interrogation Violated the Fourteenth

Amendment

The second prong under Pearson, supra

whether the right at issue is clearly established - is

also satisfied for the purposes of applying qualified

immunity to the interrogations. This inquiry turns

on the "objective legal reasonableness of the action,

assessed in light of the legal rules that were clearly

established at the time it was taken." Pearson, supra

at p. 822. In the instant case it 1s impossible to argue

that the law was clearly established that the "tactics

and lines of questioning by the detectives" during

Plaintiffs’ interrogations viclated the Fourteenth

Amendment as the Ninth Circuit exclusively relied

upon in determining that summary judgment in favor

of Dr. Blum was unwarranted. [App. 67]

36

First, if the law were clearly established that

the detectives' tactics and lines of questioning

violated the Fourteenth Amendment, the District

Court would have been required to find a Fourteenth

Amendment violation. Instead, in contrast to the

Ninth Circuit, the District Court reviewed all 40-plus

hours of the interrogations as well as the transcripts

of the interrogations and determined that the

detectives' conduct, tactics and lines of questioning

did not in fact viclate the Fourteenth Amendment.

[App. 291-297]

It is difficult to articulate that the law was

clearly established that the detectives' tactics and

hnes of questioning violated the Fourteenth

Amendment when a Federal Court District Judge

who reviewed hours and hours of the interrogations

held that such conduct did not violate the Fourteenth

Amendment. As this Court has recognized, "Ifjudges

disagree on a constitutional question, it is unfair to

subject police to money damages for picking the

losing side of the controversy." Pearson, supra at p.

823.

Moreover, the law regarding what. constitutes

a Fourteenth Amendment violation in a custodial

interrogation was far from settled under Ninth

Circuit law. The Ninth Circuit's decision in Stoot v.

City of Everett 582 F.3d 910 (9th Cir. 2009)

exemplifies the unsettled nature of conduct that

violates the Fourteenth Amendment in custodial

interrogations of minors. In Stoot, a developmentally

delayed 14-year-old was interrogated by a police

detective regarding claims that he had sexually

abused a 3-year-old girl. The interrogation of the 14-

year-old involved much of the same tactics/lines of

37

questioning that the Ninth Circuit in the present case

concluded shocked the conscience.

The detective in Stoot threatened the 14-year-

old with heightened punishment if the minor denied

his guilt and promised leniency if he admitted guilt.

Stoot, supra at p. 915. The minor testified that the

detective would not take no for an answer and that

the minor did not know what to do besides tell the

detective that he committed the crime as he believed

that was the only way he was going to walk out of the

room. Stoot, supra at p. 915. The detective

threatened the minor with jail if he kept denying the

crime but that if he confessed to the crime it would be

all over and there would be no jail. Stoot, supra at p.

915. The mentally-disabled minor in Stoot was

overcome by the tactics of the physically-imposing

detective and stated he had never been so scared in

his hfe, that he wanted his mom or dad or a teacher,

and because the detective kept drilling him that he

felt he had to lie and tell the detective what he

wanted in order for the interrogation to stop. Stoot,

supra at p. 916. The juvenile court found that the

statements made by the minor in his interrogation

were the product of impermissible coercion and ruled

them inadmissible. Stoot, supra at p. 917.

The minor’ thereafter brought federal

constitutional claims under § 1983 against the

detective, alleging among other things violation of his

substantive due process rights under the Fourteenth

Amendment. The detective asserted qualified

immunity. As tothe Fourteenth Amendment claims,

the Ninth Circuit held as follows:

"Jensen's interrogation techniques, even

when construed to the lhght most

favorable to the Stovts, did not rise to

the level of a Fourteenth Amendment

violation. The Stoots allege that Jensen

used ‘improper promises and threats ...

[that] clearly overcame whatever will

the child could have in denying these

allegations.’ They claim that because

Paul was a ‘developmentally-delayed

young boy, he could not fully and

accurately comprehend that’ these

promises were reasonable or make an

accurate assessment of the potential

outcomes in the same manner as an

adult.' And they correctly note that

under this Court's precedent,

psychological coercion is sufficient to

state a claim under the Fourteenth

Amendment. [citation omitted]

While these allegations might be

relevant to the question whether Paul's

confession was in fact voluntary and

therefore admissible, an issue the

juvenile court resolved in Paul's favor,

they fall below what is required to state

a claim under’ the’ Fourteenth

Amendment. Notably lacking, for

example, is any allegation that Jensen

‘intended to injure [Paul] in some way

unjustifiable by any government

interest,’ as required by precedent.

[citation omitted] Stoot, supra at pp

39

928-929.

It is difficult to argue that the law was clearly

established that the Escondido detectives'

questioning of Plaintiffs violated their Fourteenth

Amendment rights when they utilized similar tactics

to those set forth in Stoot which the Ninth Circuit

held did not establish a Fourteenth Amendment

violation. The Stoot decision is conclusive that the

alleged conduct of the Escondido Police Department

whom Dr. Blum allegedly conspired with did not

violate clearly-established law with respect to the

interrogations of Plaintiffs.

Finally, this Court's own decision in Chavez,

indicates that the law was not clearly established

that the tactics and lines of questioning utilized by

the police detectives in Michael! Crowe's interrogation

violated the Fourteenth Amendment. In Chavez, the

criminal suspect "had been shot in the face, both eyes

were injured; he was screaming in pain, and coming

in and out of consciousness while being repeatedly

questioned about the details of the encounter with

police." [citation omitted] His blinding facial wounds

made it impossible for him visually to distinguish the

interrogating officer from the attending medical

personnel. The officer made no effort to dispel the

perception that medical treatment was being

withheld until Martinez answered the questions put

to him. There was no attempt through Miranda

warnings or other assurances to advise the suspect

that his cooperation should be voluntary. Martinez

begged the officer to desist and provide treatment for

his wounds, but the questioning persisted despite

these pleas and despite Martinez's unequivocal

10

refusal to answer questions. Chavez, supra at p. 798

(concurring and dissenting Opinion of Justice

Kennedy).

Under these facts, three Justices determined

that the interrogation shocked the conscience and

plaintiffs Fourteenth Amendment rights were

violated. Chavez, supra at p. 789, 798-799 (Opinion

by Justice Kennedy joined by Justice Stevens and

Justice Ginsberg). Two Justices, on these very same

facts, determined that the conduct of the officer:

during their interrogation was not "egregious" or

"conscience-shocking" to constitute a violation of the

Fourteenth Amendment. Chavez, supra at pp. 774

776 (Opinion by Justice Thomas); Chavez, supra at p

783 (Opinion by Justice Scalia)

As the district court in this case determined,

the interrogation in Chavez was far more egregiou

than the Escondido detectives’ interrogations in the

present case [App. 294-296] and therefore, a

reasonable officer would not have known that the

interrogations of the boys would have amounted to a

violation of their Fourteenth Amendment rights to

substantive due process given the interrogation:

lacked the brutality has previously marked the police

conduct found by the Courts to be "shocking to the

conscience." [App. 294-296]

The law was not clearly established that the

tactics and lines of questioning utilized in Plaintiffs’

interrogations shocked the conscience or were so

egregious as to constitute a violation of the

Fourteenth Amendment If allowed to assert

qualified immunity, Dr. Blum would therefore bs

entitled to summary judgment in his favor based

upon the remaining conspiracy claim against him

1]

[X

CONCLUSION

Because there are eriou constitutional!

questions raised by Dr. Blum's case regarding thi

application of qualified immunity to private citizen

the Court should grant Dr. Blum's Petition for Writ of

(Certiorar!

Ee Long: Ks

open \ for ‘Litrone

wrence N ai Ph. |

I aot it | i a

In the ¢ int I } Lal 1)

rt f pdt I ‘J

die » Califor QO 101 |

() D (

(? following d unent MrT LTiO?!

FOR WRIT OF CHERTIORAR

rt rr) f f ' f

) ty

i]

Jeffrey R. Epp, City Attorney

OFFICE OF THE CITY A'TTORNI

201 North Broadway

Kscondido, CA 92025

(760) 839-4608

AfCtorney Ol 7 fenda

Y

i

Richard J. Schneide1

DALEY & HEF!

162 Stevens Aven lit

Solana Beach, CA 92(

(858) 755-5666

\ ] 7

1) Wilham i’

BOUDREAU WI

666 State Street

San Diego, CA 92

1G 149) Z253°U

if & 4 {

Vlilton d.S

2404 By i1aWw

san Die ( . = I

619) 1-66]

Diane Lee Field, Esq.

FERGUSON PRAET & SHERMAN

1631 East 17 Street

santa Ana, CA 92705

(714) 953-5300

Attorneys for Defendant Officer McDonough

Cynthia E. Tobisman, Esq

GREINES, MARTIN, STEIN & RICHLAND LLP

9900 Wilshire Boulevard, 12" Floor

Los Angeles, CA 90036

(310) 859-781]

° ; a } j a y

Attorneys for Defendant Officer McD.

BY MAIL: I enclosed the document(s) in sealed envelop:

or packages addressed to the persons/entities at the above

addresses and placed the envelopes for collection ind

mailing, following our ordinary business practices. I am

readily familiar with Murchison & Cumming’s practice for

collecting and processing correspondence for mailing. On

the same day that the correspondence is placed

collection and mailing, it is deposited in the ordinary

yurse of business with ithe United States Postal Servic:

in a sealed envelope with postage fully prepaid

| declare under penalty of perjury of the laws of t]

United States of America that the foregoing is true and

rrect. Executed on September 16, 2010, at San Dieg