# Petition for Writ of Certiorari — Blum v. Crowe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1135

## Text

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]

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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!

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FOR WRIT OF CHERTIORAR

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Jeffrey R. Epp, City Attorney
OFFICE OF THE CITY A'TTORNI
201 North Broadway

Kscondido, CA 92025

(760) 839-4608

AfCtorney Ol 7 fenda

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i

Richard J. Schneide1
DALEY & HEF!
162 Stevens Aven lit

Solana Beach, CA 92(

(858) 755-5666

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2533%3A1. Public record. Not legal advice.