Opposition Brief — Blum v. Crowe

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087 10-376, 10-377, 10-420 "

wl Pare Zanroe | i

In The c cme |

Supreme Court of the United States

MARK WRISLEY, et a/.,

Petitioners

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MICHAEL CROWE, cf

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HRISTOPHER McDONOUGH,

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P tiivVU

MICHAEL CROWE, ef

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LAWRENCE N BLUM,

MICHAEL CROWE, et «

Responds

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

¢- — —

CONSOLIDATED BRIEF IN OPPOSITION

OF AARON HOUSER, MARGARET SUSAN HOUSER,

AND GREGG HOUSER

o —

BOUDREAU WILLIAMS LLP SCHOVILLE & ARNELL, LLP

JON R. WILLIAMS, ESQ. DENNIS A. SCHOVILLE, ESQ.

Counsel of Record LovuIs G. ARNELL, Esq.

666 State Street 2404 Broadway

san Diego, CA 92191] San Diego, CA 92101

(619) 238-0370 (phone) (619) 232-9901 (phone)

(619) 238-8181 (facsimile) (619) 232-9904 (facsimile)

williams@bwlawllp.com

Attorneys for Respondents

Aaron Houser, Margaret Susan Houser, and Gregg Houser

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether Petitioners have presented compelling

reasons to grant the petitions, where the Ninth

Circuit Court of Appeals correctly held on the record

before it that:

1. Use of confessions coerced from juveniles and

later introduced in pre-trial proceedings during the

course of the “criminal case” violate the Fifth

Amendment right against self-incrimination;

)

2. A police conspiracy to intentionally violate a

juvenile’s Constitutional rights, with the aim of

coercing a confession no matter the human toll,

sufficiently “shocks the conscience” to support a

violation of the Fourteenth Amendment's due process

protections;

3. A clinical psychologist, retained by police to

devise strategies and techniques to “psychologically

break” juvenile criminal suspects during coercive

interrogations, may be held liable for conspiracy to

violate those juveniles’ constitutional rights.

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........0:.ccccccccvenvsoceseeses

DP anes re A os veces snd ccdcrseecixiancntoserdenseaes il

ARES ie CO PAU ek CN ce svicnisindbveccseicscssecessvenss V

FEE 0 EY snccddnks sda rvcccuaevardevivavicsuvevess |

I. STATEMENT OF THE CASE................. | 2

ey re fer eakeb ees ates

B. January 22, 1998: The Police Interrogate

Aaron Houser at His Home................... 8

C. January 27, 1998: The Police Interrogate

Aaron Houser Again at His Home and

at the Escondido Police Department .... 8

LD. January 27, 1998 to January 28, 1998:

The Police Interrogate Joshua Treadway

OE LS TAOS CIV ov scsceseccice cs insesnss 9

KE. The Ruse Phone Call to Aaron.............. LO

KF. February 10, 1998: The Police Interrogate

Joshua For Another 12 Hours............... 1]

G. February 11, 1998: The Police Arrest

Aaron at School, Search His Locker

and Home, and Interrogate Him For a

Third Time....... Mecsilber cde cas ciate een eas 12

H. Use of the Boys’ Statements in the

Criminal Cases Against Them.............. 14

|. Dismissals of Indictments and Prose-

et er RN ee alae 15

1

TABLE OF CONTENTS — Continued

i.

bo

Page

J. The Boys’ Subsequent § 1983 Action in

ET EI CIES occa conch aces cccscsasecveevess

K. The Ninth Circuit’s Ruling....................

Ill. REASONS FOR DENYING THE PETI-

EE iso covnssdvnakecass eistariasestadn ins

A. Petitioners’ Attempts to Manufacture

Review of Respondents’ Fifth Amendment

Claims Has Recently Been Rejected by

This Court and Should Be Rejected

Pe Fe sic eee

The Alleged Split Between the Circuit

Courts Does Not Warrant This Court’s

Attention at This Time.....................

Wie ba eo a | | re

b. The Fourth Circuit .....................

Ae es gS ee: |

d. “Fhe Sixth Circitit...............0c0005.c25

The Compelling Facts of This Case

Make It a Uniquely Poor Vehicle for

Review of the Widespread Application

of Fifth Amendment Protections ........

Petitioners’ Claim That the Ninth

Circuit's Decision Will Have a “Chilling

Effect” on Law Enforcement Activities

Is Supported Neither By Fact Nor

29

[V.

1V

TABLE OF CONTENTS — Continued

Page

B. Petitioners’ Arguments That There Is a

Need to Clarify “Conscience Shocking”

Behavior Under the Fourteenth Amend-

ment Also Fails to Raise an Issue Wor-

thy of This Court’s Review ....................

1. This Court’s Decisions Are Replete

with Examples of Verbally Coercive

Interrogations Which Violate the

Fourteenth Amendment...................

2. Petitioners’ Companion “Shocks the

Conscience” Arguments Warrant Even

Less Scrutiny by This Court............

y %}

C. The Ninth Circuit’s Reversal of Summary

Judgment on the Conspiracy Claim

Asserted Against Blum Was Entirely

Fact-Driven and Therefore Presents No

Legal Issue for This Court to Clarify......

Ne FI oe uc cis <nicavnrcavanvecarnevevasnsiserese

36

38

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279 (1991) ............. 36

Blackburn v. Alabama, 361 U.S. 199 (1960) .............36

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)............ 3]

Burrell v. Virginia, 395 F.3d 508 (4th Cir.

SE Novi cuarcuusdened racseetevenaedsiseeusenncaaen 22, 23, 24, 25, 26

Chavez v. Martinez, 538 U.S. 760 (2003)........... passim

Clement v. City of Glendale, 518 F.3d 1090 (9th

ny MEE food cusat suai acetucteesdesceseusanseencaecniaad eeetetonens 09

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

WE avcchc cdueuinsacs.scis uaaeaveves wasdanccadeecsendcankauases 30

Dickerson v. United States, 530 U.S. 428 (2000)....... 21

Franklin v. Fox, 312 F.3d 423 (9th Cir. 2002)............ 39

Gallegos v. Colorado, 370 U.S. 49 (1962).......33, 34, 35

Giuffre v. Bissell, 31 F.3d 1241 (3rd Cir. 1994).......... 21

Haley v. State of Ohio, 332 U.S. 596 (1948).....2, 32, 35

Higazy v. Templeton, 505 F.3d 161 (2nd Cir.

7 ff BARR NG Oe ep ARR ERe EAB DED Nb ADR RODD AMOI Abr a kukenieacauee

In re: Dennis H., 19 Cal.App.3d 350 (1971)............... 14

In re: Gault, 387 U.S. 1 (1967)............. 2.19, 28, 34, 35

Kastigar v. United States, 406 U.S. 441 (1972)......... 19

Marcus W. v. Superior Court, 98 Cal.App.4th

IE ccine.nndck acd conscasitinesacasses evanscbaneacuces oisussseucers 15

McKinley v. City of Mansfield, 404 F.3d 418

I Mera II itn ceo pzduas eect petvcsaseanseconieh caeesancnees 26, 31

V1

TABLE OF AUTHORITIES — Continued

Murray v. Earle, 405 F.3d 278 (5th Cir. 2005).....25, 26

People v. Burton, 6 Cal.3d 375 (1971) .......... eee 13

Ramona R. v. Superior Court, 37 Cal.3d 802

ERED) skp dndcndsnnxdewenssauinisaewebatacttaciee eee savedinsasecane

Reck uv. Pate, 367 U.S. 483 (1OG1 ).....cccccccocccccccecccccccess 36

Renda v. King, 347 F.3d 550 (8rd Cir. 2003)...... 20, 21, 22

Richardson v. McKnight, 521 U.S. 399 (1997) ....388, 39

Sornberger v. City of Knoxville, [ll., 434 F.3d

LOOG C7 tin Cit. BOB? ceicciccscccene RPP 21

Stoot v. City of Everett, 582 F.3d 910 (9th Cir

BUUO ) ccancees 19, ZZ, 2/, 20

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) 35

Woods v. Clusen, 794 F.2d 293 (7th Cir. 1986). 35

CONSTITUTIONAL AND STATUTORY PROVISION

U.S. Const. amend. V. passim

12 U.S.C. § 1988... ....Passim

Cal. Welf. & Inst. Code § 631 14

OTHER

87 A.L.R.2d 624,

Voluntariness and Admissibility of Minor’s

Confessions ........ iadaiucante coat uabceustasnecuee

TABLE OF AUTHORITIES — Continued

82 N.C.L. Rev. 891,

The Problem of False Confessions in the Po

DNA World ....

30 N.Y.U. Rev.L. & Soc Change 209

The Reality of False Confessions — Lesson

the Central Park Jogger Casi

I. INTRODUCTION

There is a climactic scene in the beloved movie

classic, The Wizard of Oz, where Dorothy and her

cohorts return to the Emerald City for an audience

with a powerful Wizard who has promised to deliver

Dorothy to Kansas, a brain to the Scarecrow, a heart

to the Tin Woodsman, and bravery to the Cowardly

Lion. When they finally come face to face with the

Mighty Oz, the apparition blusters, telling them not

to invoke his wrath and to go away. Just then howey

er, Dorothy’s dog Toto pulls aside a curtain, revealing

nothing more than a slight man operating levers that

have only created the illusion of the Wizard. In that

unguarded moment, the Mighty Oz admonishes them

to “pay no attention to the man behind the curtain,’

but 1s ultimately forced to admit that he is little more

than a balloonist from Kansa:

Like the Mighty Oz, Petitioners have attempted

in their respective petitions to mystify this Court

with the look and feel of great erudition, while con

cealing the humble reality that those petitions prt

sent nothing that has not already been decided by

this Court and uniformly followed by the Circuit

Courts of Appeal. Petitioners also urge this Court to

pay no attention to what lies behind their curtain of

rhetoric and hyperbole, but Respondents pull it back

here to: (A) clarify that no conflict exists among the

Circuit Courts which have actually decided the issue

confronted by the Ninth Circuit here the use of

coerced confessions in pre-trial proceedings within

the “criminal case” after charges have been filed:

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illuminate how psycholoyvical

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process violation; and (C) explain

authority hold that private AcLOI

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liable for conspiracy. In doing

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remind this Court of its own relevant

the consistent decisions of the Circuit

which demonstrate why review 1s not w

Accordingly, Re pondent urge thi (

review in thi case wher like that balloonist fror

Kansa Petitioner respective petits

by this Court for what they really ar

Petitioners have projected them to |

II STATEMENT OF THE CASEI

Kor well over a half century ind

decisions, fHlale, State of Ohto, 3

ind /n re: Gault, 387 U | (196,

recognized that juveniles ubjected t

ustodial police interrogations art

MM ind a ucl annow be idged

icting Landara ol maturit lt ha

Onn that which would Cave i |

unimpressed can overawe and overwhe

early teens.” And it is for that very 1

Court recognized why “authoritative oy

orn

idahble doubt upon Live rehabili

worthine of conte ron r) hildre

house inexplicably close as he approached. But with-

out investigating further, that officer turned around,

concluded that Tuite was simply “gone on arrival,”

and then took himself out of service so he could eat

dinner.

Having so easily evaded that police officer, Tuite

made his way through Stephanie’s house and into her

bedroom, finally finding someone he believed resem-

bled “Tracy.” Tuite then fatally stabbed Stephanie in

her bedroom, where she was found slain by her

horrified family.

Called to investigate in the morning, the police

instantly seized upon a flawed theory that this hid-

eous crime had been committed by a member of

Stephanie’s family, and not by Tuite. Using a ploy to

separate Stephanie’s brother and sister from their

parents, the police instantly began hammering on

Stephanie’s 14-year-old brother, Michael Crowe, as

their lead suspect. In brazen violation of Michael’s

rights, the police subjected Michael to prolonged,

coerced interrogations, deliberately disregarding his

repeated requests to see his parents, to stop the

interrogations, and to use the bathroom or to sleep.

Enlisting the aid of a clinical psychologist and a

“truth box” voice analyzing machine which they knew

was merely a sham instrument meant to intimidate

and “psychologically break” Michael, the police ulti-

mately wore Michael down, convincing him that he

had some sort of pent-up hate of Stephanie that

caused him to “black out” and kill her without realiz-

ing it.

Yet even after coercing that confession, the police

still had a problem. While the evidence continued to

voint strongly to Tuite as Stephanie’s murderer, no

physical evidence linked Michael to the crime. Ig-

noring Tuite, the police cast a dragnet over two of

Michael’s friends, Joshua Treadway and Aaron

Houser (also juveniles), accusing them of being ac-

complices and co-conspirators. In what one expert

would later characterize as “the most extreme form of

emotional child abuse that I have ever observed in my

nearly 40 years of observing and working with chil-

dren and adolescents,” the police employed the same

coercive interrogation techniques to Joshua and

Aaron, not to learn or discover the truth, but to

browbeat, deceive, threaten and — by any means

necessary — coerce them into admitting to their

preconceived and factually unsupported theory of how

Stephanie was murdered, no matter how strongly the

actual evidence pointed toward Tutte.

However, when blood evidence from Tuite’s

clothing (ignored by the police for a year) was later

confirmed to be Stephanie’s, charges against Michael,

Joshua and Aaron were reluctantly dropped, and

Tuite was prosecuted for, and ultimately convicted of,

Stephanie’s murder. Consequently, Michael, Joshua

and Aaron filed suit against the police and related

entities, alleging that their civil rights had been

repeatedly and intentionally violated by the police to

support a ridiculous “theory-based” investigation, and

in a concerted effort to provide “cover” for one of their

6

own who had the last, best chance to stop Tuite, but

never even attempted to do so.

While the District Court granted the police

summary judgment by measuring their behavior as if

they had been dealing with hardened adult criminal

suspects, the Ninth Circuit reversed, finding on de

novo review that “[o]ne need only read the transcripts

of the boys’ interrogations, or watch the videotapes, to

understand how thoroughly the defendants’ conduct

in this case ‘shocks the conscience.’” (App. 47.)' The

Ninth Circuit further held that use of those coerced

confessions at various pre-trial hearings — but after

charges had been brought against the boys and the

“criminal case” commenced — violated their Fifth

Amendment right against self-incrimination. (App.

36-45.)

In an attempt to induce this Court’s review,

Petitioners have offered a highly glossed and sani-

tized version of the underlying facts. But it is the

unique and compelling facts of this case which make

it a particularly unsuitable vehicle for review on the

multiple issues raised by Petitioners. Thus, as Rule

15.2 requires Respondents to point out to the Court

any perceived misstetements of fact contained in the

underlying petitions, Respondents focus here on the

All factual references in this Opposition Brief are made to

the Appendix of documents attached to the Petition of Mark

Wrisley, Barry Sweeney, Ralph Claytor, and Phillip Anderson

(“the Escondido Petitioners”), and are abbreviated as: “(App.

- P Ln

| page}j.)

insufficiencies in that recitation, citing to the under-

lying opinions of the Ninth Circuit and the District

Court.

A. Summary.

In his separate Opposition Brief, Co-Respondent,

Michael Crowe, describes in detail the facts leading

up to Tuite’s murder of Stephanie, how the circum-

stantial and p’sysical evidence strongly implicated

Tuite from the outset of the investigation, and how no

physical evidence whatsoever tied Michael to the

murder of his sister. Thus, for the sake of brevity, a

full recounting of those facts and circumstances will

not be repeated here.

Suffice it to say, however, that within minutes of

arriving at the scene, the Escondido police officers

investigating Stephanie’s murder conspired to pin

that hideous crime on a family member, and Michael

unfortunately became their target. The problem

with that plan was that notwithstanding their ability

to “psychologically break” Michael and to coerce

a confession from him, the police could find no physi

cal evidence (including a murder weapon) link-

ing Michael to that crime. Thus, to justify their own

mistreatment of Michael, the investigating officers

further conspired to search, arrest and interrogate

two of Michael’s friends, Joshua Treadway and Aaron

Houser, all with the goal of further knuckling un-

der those juveniles to support their “theory-based”

investigation, even as the objective evidence increas-

ingly pointed to Tuite.

B. January 22, 1998: The Police Interrogate

Aaron Houser at His Home.

«pe

On January 22, 1998, Petitioners first interro-

gated Aaron at his residence. (App. 25.) They initially

questioned Aaron regarding his relationship with

Michael, and his interest in mystical fantasy games

and medieval weapons. (/d.) Although those questions

were clearly intended to elicit incriminating respons-

es from Aaron, the police never warned Aaron (then a

14-year-old with no prior criminal record) of his

Miranda rights. (/d.)

C. January 27, 1998: The Police Interrogate

Aaron Houser Again at His Home and at

the Escondido Police Department.

On January 27, 1998, Petitioners executed a

search warrant at Aaron’s residence, based primarily

on prior statements they elicited from him. (App. 25.)

During that search, Aaron was confined to his living

room and kitchen, except when brought to his bed-

room to answer questions. Aaron was then taken to

the Escondido police station for further questioning,

which lasted nearly two hours. (/d.) Again, those

interrogations were clearly intended to elicit incrimi-

nating res>onses and were even videotaped for that

9

purpose, bit at no time was Aaron advised of his

Fifth Amendment rights. (/d.)

D. January 27, 1998 to January 28, 1998:

The Police Interrogate Joshua Treadway

For 13 Hours Overnight.

At approximately 7:00 p.m. on January 27, 1998,

the Escondido Police began their first grueling inter-

rogation of Joshua, lasting over 13 hours. (App. 29-

30.) To begin, Claytor questioned Joshua for several

hours, employing various techniques outlined for him

by psychologist, Lawrence Blum, meant to coerce

Joshua into admitting involvement in a crime that

neither he, nor his friends, committed. Ud.) Specifi-

cally, Claytor baited Joshua with promises of leniency

(rehabilitation) and then scared him with threats of

punishment (prison). (/d.) He also denied Joshua’s

request to see his mother, denied his request for

water, and refused to take him to the bathroom. (/d.)

Claytor never advised Joshua of his Fifth Amendment

rights. (/d.)

As Joshua began to show visible signs of strain

folowing Claytor’s, Wrisley’s and Sweeney’s seven

hours of grilling, McDonough strategically took over

Joshua’s interrogation at 3:00 a.m. on January 28,

1998, consistent with the plan the officers and Blum

had previously devised to “break” Joshua. (/d.) It was

at this time that McDonough turned loose on Joshua

the “truth box” Computer Voice Stress Analyzer

(““CVSA”) device. Ud.) Notably, McDonough would

10

later admit he did not know how or if the CVSA

worked, but told Joshua in no uncertain terms that

the CVSA was “97% accurate,” and immediately

determines if your answer is right or wrong.

Despite McDonough’s onslaught and deception,

Joshua initially maintained his innocence. (App. 30.)

However, McDonough relentlessly interrogated and

psychologically abused Joshua, utilizing the CVSA as

the tool of that coercion. Joshua was exhausted and

repeatedly asked to be allowed to sleep. (/d.) When

Joshua ultimately broke down and falsely told

McDonough that Aaron gave him the knife used to

kill Stephanie ~ the only story Joshua discerned

would allow him to escape further coercion -

McDonough pretended to administer another CVSA

exam, telling Joshua that he had now “passed” the

test. Ud.) Yet at no time during over 13 hours of

interrogation did McDonough “Mirandize” Joshua

Treadway. (/d.)

E. The Ruse Phone Call to Aaron.

Having “cracked” 15-year-old Joshua, Claytor

and Anderson further manipulated Joshua in an

unconscionable attempt to obtain a false confession

from Aaron. Specifically, they goaded Joshua to call

Aaron and to accuse him of complicity in Stephanie's

murder while they secretly listened to that phone

call. (App. 30.) Aaron, however, denied any involve-

ment, and was emotionally shocked, confused and

frightened by that ruse. (/d.)

11

F. February 10, 1998: The Police Interrogate

Joshua For Another 12 Hours.

Having already succeeded in extracting a false

story from Joshua that Aaron gave him the knife

Michael used to kill Stephanie, McDonough, Claytor

and other officers pushed their plan further, deciding

to bring Joshua back for another interrogation on

February 10, 1998. (App. 30.)

Knowing that Joshua was already vulnerable to

their influence and that they could now manipulate

Joshua to follow’ their preconceived _ script,

McDonough and Claytor interrogated Joshua for

another 12 hours. (/d.) With direction and assistance

from Blum, Claytor and McDonough used similar

coercive techniques to those utilized on January 28,

1998, with similar results. By the end of that interro-

gation session, they had Joshua fabricate a fantasy

confession in which Aaron stabbed Stephanie with

Michael Crowe’s help, while he (Joshua) acted as the

“lookout.” (/d.)

Notably, that false confession was so meandering

and internally inconsistent — with key facts changing

every few moments — that even McDonough doubted

it to be true. U/d.) Yet this did not deter the officers

from arresting Joshua at the conclusion of this second

interrogation, reading him his Miranda rights for the

first time, and booking him into San Diego County

Juvenile Hall. (/d.)

12

G. February 11, 1998: The Police Arrest

Aaron at School, Search His Locker

and Home, and Interrogate Him For a

Third Time.

Using Joshua’s false confession of February 10,

1998, as “probable cause,” the following day the police

searched Aaron’s home and his school locker, while

they seized Aaron at his school vithout telling him he

was under arrest. (App. 25.)

After Aaron was brought from school to the

Escondido Police Department, he was interrogated for

a total of nine and one-half hours, primarily by

McDonough. (/d.) As with Michael and Joshua,

McDonough’s interrogation of Aaron was psychologi-

cally grueling, was based on coercive techniques and

strategies tailored by Blum to overtake Aaron’s will

and to force a false confession, and was justified by

Blum telling the officers that Aaron was “a Charles

Manson wannabe” and “Charles Manson with an

1.Q.” (App. 26, 77.) Aaron was also interrogated under

false pretenses in that neither he nor his parents

were told that Joshua had implicated him in the

murder, or that Aaron was even a suspect. (App. 26-

28.) As such, Aaron was under the false impression

that he was merely assisting the police in their inves-

tigation of Michael. (/d.)

As with Joshua, McDonough repeatedly deceived

Aaron in his attempts to extract a confession. For

example, during the interrogation, McDonough asked

Aaron to describe “hypothetically” how Michael might

kill Stephanie, how Joshua might, and how Aaron

might do so. (d.) To accomplish that _ goal,

McDonough used the CVSA device to “condition” and

“svggest” Aaron’s responses. (/d.) But not only was

Aaron’s hypothetical description at odds with the

evidence of how the killing actually took place, it

was completely different from Joshua’s fabricated

scenario, which also did not match the evidence.

Nevertheless, McDonough told Aaron that the CVSA

indicated that he was “definitely involved” and that

Petitioners had physical evidence against him and

would soon uncover more. (/d.) McDonough continued

that deception by also telling Aaron that Michael

and Joshua had said that Aaron helped him kill

Stephanie, and that the physical evidence would

implicate him. (/d.)

Upon realizing for the first time that he had been

deceived and was being questioned as a_ suspect,

Aaron demanded that the interrogation stop and

asked to use the bathroom. Neither request was

honored. (/d.) On two additional occasions, Aaron

asked to speak with his mother, but was not permit-

ted to do so.” (/d.) Claytor also denied Aaron the right

to speak with his father. (/d.) On another occasion,

Aaron demanded that the interrogation cease which

Under California law, a minor subject to custodial interro-

gation invokes his Fifth Amendment right by asking to see a

parent. People v. Burton, 6 Cal.3d 375, 383-384 (1971). Upon

such a request, before or during questioning, “the police must

cease custodial interrogation immediately.” Jd. at 384.

14

request was likewise denied. (/d.) Yet after approxi-

mately 11 hours of coercive interrogation in which

Aaron maintained his innocence, the police booked

him into Juvenile Hall, never having properly advised

him of his Miranda rights. He was thereafter hand

cuffed, photographed in the nude, and incarcerated

for approximately eight months.

H. Use of the Boys’ Statements in the

Criminal Cases Against Them.

Statements obtained from the boys during their

interrogations were introduced during at least three

pre-trial proceedings. (App. 30-31.) First, a “Dennis

H.” hearing was held and resulted in Aaron and

Joshua spending several months in jail awaiting

trial.” Second, the boys’ statements were introduced

during subsequent grand jury proceedings, resulting

in indictments against all three boys for murder.

Finally, the statements were used in a “707 Hearing”

to determine if the boys would be tried as juveniles or

adults.’ (/d.)

‘ In California, when a minor is taken into custody by a

police officer, he must be released within 48 hours from the time

of apprehension unless a petition is filed within that time in a

court of competent jurisdiction explaining why the minor should

be declared a ward of the court. See Cal. Welf. & Inst. Code

§ 631; see also In re: Dennis H., 19 Cal.App.3d 350, 354 (1971)

* The California Supreme Court has characterized trying a

minor as an adult as “the worst punishment the juvenile system

is empowered to inflict.” Ramona R. v. Superior Court, 37 Cal.3d

(Continued on following page)

Notably, at a subsequent suppression hearin;

the state court found that most of Michael’s state

ments were the product of a “coercive scheme” by the

police and suppressed them. Similarly, the state court

suppressed all of Aaron’s statements on the ground

that Aaron had never been Mirandized, while als

suppressing a large portion of Joshua’s statements or

the same basis. (App. 31-32.)

I. Dismissals of Indictments and Prose

cution of Tuite.

After the case against the boys had been set for

trial, pieces of Tuite’s clothes (which had been collect

ed but never analyzed when the police first stopped

Tuite the day after Stephanie was killed) were exam

ined, the DNA results of which revealed spots of

Stephanie’s blood. (App. 32-33.) The prosecution then

filed a Motion to Dism) the indictment against thi

boy: Ud

J. The Boys’ Subsequent § 1983 Action in

the District Court.

After the charges against them were dismissed

the boys and their families filed three eparate com

plaints in state court alleging violations of 42 U.S.

BOZ 8IO (1985): accord Marcu V\ yipertor | irt

Cal.App.4th 36, 45 (2002) (holding that the

elf-incrimination applies in “707 hearing

moved the complaints to federai court \pt

Following various motions to dism!

laint the District Court consolidated all three

tions and ordered the filing of a Joint First Amen

Complaint (/d.) Petitioner then brought ove! 1 (

eparate motions tor summary mdgment

the subject of substantial, serial briefing in the D)

trict Court over a penod of four and one-half year

(ia Prior to Tuite trial and ultimate nviction I

Lephanie murder Line District Court ued ti

lirst of two lengthy opinion n kebruary 1% O04

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18

claims against the municipal entity defendants. (App.

48-59, 68, 71-80.)

Finally, the Ninth Circuit affirmed the District

Court’s denial of summary judgment as to the Crowes’

individual claims for Fourth Amendment violations

arising out of their respective strip searches and

drawing of blood samples; as well as their claims for

wrongful detention and deprivation of familial com

panionship arising out of Michael and his sister,

Shannon, being placed in protective custody. (App. 62-

Ob. )

Petitioners thereafter petitioned the Ninth

Circuit for rehearing and rehearing en banc, both of

which were properly denied. (App. 6.)

Hil. REASONS FOR DENYING THE PETITIONS

A. Petitioners’ Attempts to Manufacture

Review of Respondents’ Fifth Amendment

Claims Has Recently Been Rejected by

This Court and Should Be Rejected

Again Now.

The Fifth Amendment provides that no person

“shall be compelled in any criminal case to be a

witness against himself.” U.S. Const. amend. V

(emph. added). This Court has emphasized that the

“sole concern” of the Fifth Amendment is “to afford

protection against being ‘forced to give testimony

leading to the infliction of penalties affixed to

19

criminal acts.’” Kastigar v. United States, 406 U.S.

441, 444 (1972).

Petitioners claim that in the wake of the Chavez

plurality opinion, there is an alleged “conflict” within

the Circuit Courts about when, precisely, a “criminal

case” begins. As Respondents here explain, that

argument is nothing new, but rather is precisely the

same argument the Escondido Petitioners raised as

amicus in support of review of the Ninth Circuit’s

prior decision in Stoot v. City of Everett, 582 F.3d 910

(94.1 Cir. 2009), cert. denied, April 5, 2010. This Court

rejected those same arguments just over seven months

ago, and should do so again now.

Moreover, as Respondents further explain, this

case presents a uniquely poor vehicle for review of the

widespread application of Fifth Amendment pro‘ec-

tions, as it involves juvenile criminal defendants who

this Court has mandated should be subject to differ-

greatest care”

S. at 55) than

their fully emancipated adult counterparts. Accord-

ent interrogation standards (1.e., “the

standard under /n re: Gault, 387 U.

ingly, as that “greatest care” standard necessarily

overlays the Ninth Circuit’s Fifth Amendment analy-

sis, this case is an inappropriate platform from which

to extrapolate legal concepts meant to apply to a

much broader population of criminal defendants.

20

1. The Alleged Split Between the Circuit

Courts Does Not Warrant This Court’s

Attention at This Time.

With great hyperbole, Petitioners claim that a

“deep circuit split” exists by relying on decisions from

four Circuits — the Third, Fourth, Fifth, and Sixth

Circuits. They do so by cherry-picking language from

a small collection of cases in those Circuits which

have never squarely addressed the “criminal case”

question post-Chavez, as have the Second, Seventh.

and Ninth Circuits. As set forth more fully below, the

language on which Petitioners rely either pre-dates

Chavez, or is dicta (not binding on future decisions in

those Circuits) wrested from factually distinguishable

decisions. Consequently, it remains unclear whether

those Circuits would hold differently if they were

actually confronted with the same compelling factual

scenario presented in this case.

a. The Third Circuit.

For example, in the Third Circuit decision of

Renda v. King, 347 F.3d 550, 553 (3rd Cir. 2003), the

plaintiff was charged with giv.ng false reports to law

enforcement authorities. The Court of Common Pleas

suppressed the plaintiff’s statements due to Miranda

violations and the case was nolle prossed by the

District Attorney for lack of evidence. /d. The plaintiff

filed an action pursuant to 42 U.S.C. § 1983 alleging,

among other things, a violation of her Fifth Amend-

ment rights. The Third Circuit held that the plain-

tiff’s Fifth Amendment rights were not violated

1

because her statements were never used against her

at trial. Jd. at 559. In doing so, however, the Third

Circuit failed to engage in any substantive analysis of

the issue now presented to the Court. The decision

simply states on this issue: “... our prior decision in

Giuffre compels the conclusion that it is the use of

coerced statements during a criminal trial, and not in

obtaining an indictment, that violates the Constitu-

tion.” Jd.

Notably, however, Gruffre v. Bissell, 31 F.3d 1241

(3rd Cir. 1994), upon which Renda relied, was a pre-

Chavez case. Additionally, as correctly pointed out by

the Seventh Circuit in the subsequent, post-Chavez

decision of Sornberger v. City of Knoxville, Ill., 434

F.3d 1006 (7th Cir. 2006), Giuffre was “decided before

the Supreme Court determined in Dickerson v. United

States, 530 U.S. 428 (2000), that the Miranda warn-

ings themselves have constitutional status.” /d. at

1025. The Seventh Circuit concluded therefore that

“little weight” should be placed on the holding in

Giuffre, given that subsequent change in the law. /d.

Furthermore, Giu/ffre was factually similar to Chavez

in that officers obtained a statement from the plain-

tiff during an allegedly coerced interrogation but

charges were later dropped prior to the filing of a

criminal case. Jd. at 1244. Here, in contrast, Aaron’

coerced statements were used in bringing criminal

charges against him, in denying his pre-trial release,

and in deciding whether to try him as an adult.

In short, the Renda decision relied entirely on a

distinguishable pre-Chavez decision which failed to

y

set forth any detailed analysis to support its conclu-

sion that a Fifth Amendment violation occurs only

when a statement has been used at trial. As such,

Renda does not present a proverbial “split” among the

Circuits at all, let alone one that is sufficiently ma-

ture to warrant this Court’s attention now. Indeed,

faced with facts similar to those presented in this

case — and given the guidance this Court has pro-

vided since in Chavez — it cannot be said with any

degree of certainty that the Third Circuit would not

agree with the Ninth Circuit’s decisions in both Stoot

and this case.

b. The Fourth Circuit.

Similarly, in the Fourth Circuit decision of

Burrell v. Virginia, 395 F.3d 508, 510 (4th Cir. 2005),

an officer approached the plaintiff at a traffic accident

scene. When the plaintiff refused to answer any of the

officer’s questions, he was charged with obstruction of

justice and operating an uninsured motor vehicle. Ja.

at 511. When the plaintiff’s conviction on those

charges was later overturned on appeal, he brought a

§ 1983 action alleging, among other things, his Fifth

Amendment rights were violated by the state compel-

ling him to produce evidence of insurance. /d.

The Fourth Circuit analyzed the plaintiff’s claim

under Chavez noting that this Court’s plurality con-

clusion that a violation of the constitutional right of

self-incrimination occurs only if one has been com-

pelled to be a witness against himself in a criminal

23

case. Id. at 513, citing Chavez, 538 U.S. at 770. The

Burrell court then focused on Justices Souter’s and

Breyer’s concurrence in Chavez which concentrated

on whether a violation required “courtroom use of a

criminal defendant’s compelled, self-incriminating

testimony....” /d, citing Chavez, 538 U.S. at 777

(emph. in orig.). Based on that reasoning alone,

Burrell concluded “[Plaintiff] does not allege any trial

action that violated his Fifth Amendment rights:

thus, ipso facto, his claim fails on the plurality’s

reasoning.” Jd. But closer scrutiny reveals that

Burrell’s statement regarding requirement of a “trial”

action is pure dicta. Indeed, the plaintiff in Burrell

never alleged any “courtroom use” of statements since

he only asserted a violation occurred at the time

summonses were issued by the state. Jd. Thus, that

language, as it related to the question presented by

the limited facts of that particular case, went well

beyond those facts and consequently, would not be

binding on subsequent cases.

In fact, the Seventh Circuit in Sornberger, which

reached the same conclusion as the Ninth Circuit in

this case, explained why that isolated language in

Burrell created no conflict with its own holding:

We do not see conflict between our holding

today and that of our sister circuit in Burrell.

There, Burrell claimed that his constitu-

tional rights were violated when the police

issued him an obstruction of justice sum-

mons for invoking his right to remain silent.

The Fourth Circuit held that the issuance of

24

a summons was not a “courtroom use of

a criminal defendant’s compelled, self-

incriminating testimony,” and _ therefore

Burrell failed to state a claim under § 1983

for violation of his right against self-

incrimination. Here, by contrast, Teresa’s

confession was used at a preliminary hearing

to find probable cause to indict, to arraign

and to set her bail. More than the mere

issuance of a summons, failure to administer

Teresa Miranda warnings led to three dis-

tinct “courtroom uses” of her unwarned

statements.

Sornberger, 434 F.3d at 1027.

Consequently, it is entirely unclear whether the

Fourth Circuit would hold differently given the facts

of this case. Indeed, like the situation in Sornberger

and unlike the situation in Burrel/, the coerced

statements used against Aaron formed the basis for

filing formal charges against him, were used to

determine his pre-trial custody status, and led to

Aaron being tried as an adult, all “courtroom uses.”

As such, the “courtroom use” of the statement that

was entirely lacking in Burrell is fully present in this

case, as it was in Sornberger. Accordingly, the Fourth

Circuit’s decision in Burrell does not present a split

among the Circuits, but must be viewed as limited to

the facts before it, which are clearly distinguishable

from those found in this case.

25

ec. The Fifth Circuit.

In the Fifth Circuit’s decision of Murray v. Earle,

405 F.3d 278 (5th Cir. 2005), the plaintiff (a juvenile)

was charged with capital murder and injury to a

child. The plaintiff’s statements, obtained without

taking her before a magistrate or notifying her par-

ents or an attorney as required by Texas law, were

used age. st her during two different trials leading to

her conviction. Jd. at 284. The Texas Court of Ap-

peals, however, reversed those convictions due to

improperly acquired statements. /d. The plaintiff

subsequently brought a § 1983 action alleging, among

other things, a violation of her Fifth Amendment

rights. Id.

When the plaintiff challenged the trial court’s

grant of qualified immunity, the Fifth Circuit stated:

“The Fifth Amendment privilege against self-

incrimination is a fundamental trial right which can

be violated only at trial, even though pre-trial con-

duct by law enforcement officials may ultimately

impair that right.” Jd. at 285. The Murray court,

however, provided no analysis regarding the question

presented in this case, or clarified by the Chavez

plurality: pre-trial use of coerced statements within

the criminal case. Indeed, as in Burrell, that state-

ment was circumscribed by the facts before it, as the

plaintiff’s confession in Murray had, in fact, been

used two different times against her at trial. Jd. at

284. Thus, Murray cannot be reasonably construed as

going beyond its limited facts to reach a scenario

where, like here, those same _ self-incriminating

26

statements are used in various pre-trial proceedings

which implicate substantial liberty interests. Indeed,

if confronted with the significantly distinguishable

facts present in this case, it is unclear whether the

Fifth Circuit would hold any different than the Ninth

Circuit did in this case, or be bound by the factually

dissimilar situation presented in Murray.

d. The Sixth Circuit.

Finally, in McKinley v. City of Mansfield, 404

F.3d 418, 425 (6th Cir. 2005), the self-incriminating

statements in question were introduced at trial and

played a “central role” in the plaintiff’s conviction.

Consequently, the McKinley court’s recitation of the

rule (in a mere footnote, no less) that the Fifth

Amendment is a “trial protection” right was appro-

priate on the limited facts before it. But it does noth-

ing to require a similar holding where another court

in the Sixth Circuit is later confronted with the facts

present in this case: pre-trial use of a _ self-

incriminating statement within the confines of the

criminal case.

Again, like the decision of the Fourth Circuit in

Burrell, and the Fifth Circuit in Murray, the Sixth

Circuit’s mere recitation in McKinley of a “trial pro-

tection” rule — without any further analysis — does

not define the contours of the Fifth Amendment in

that Circuit, but must instead be viewed within the

limited facts presented to the McKinley court. Indeed,

none of the decisions on which Petitioners rely have

27

squarely addressed the different factual situation

present here, and none would prohibit another court

from ruling exactly as the Ninth Circuit did in this

case if they are confronted with those distinguishable

facts in the future.

In contrast, every Circuit which has squarely

addressed pre-trial use of self-incriminating state-

ments in the “criminal case” has uniformly followed

this Court’s guidance in Chavez and found such use to

violate the Fifth Amendment. See, e.g., Sornberger,

434 F.3d at 1026; Higazy v. Templeton, 505 F.3d 161,

172 (2nd Cir. 2007); Stoot, 582 F.3d at 925-926. There

is no reason to believe the results would be any

different if (and when) the Third, Fourth, Fifth and

Sixth Circuits have the opportunity to confront that

same issue. But until they do — and render a decision

on similar facts which is actually at odds with the

decisions of the Second, Seventh, and Ninth Circuits

— any alleged “conflict” raised by the Petitioners is

simply non-existent, let alone sufficiently mature at

this juncture to warrant this Court’s attention.

2. The Compelling Facts of This Case

Make It a Uniquely Poor Vehicle for

Review of the Widespread Application

of Fifth Amendment Protections.

As mentioned at the outset of this brief, one of

the most compelling aspects of this case is that it

involves juveniles (boys, ages 14 and 15) — with no

25

prior criminal history or contact with the police — who

were subjected to hours of coercive interrogation

before they were ever apprised of their Miranda

rights. While Petitioners pay lip service to this fact,

they just as quickly go on to forget Respondents’

relative youth, condoning inquisitorial techniques

and practices which have been found to be appro

priate, if at all, for adult criminal suspects.

But the standards for exercising the “createst

care” in analyzing police interrogations of juveniles

are well-established, and run directly contrary to the

authority relied upon by Petitioners. Indeed, as this

Court made clear over a half-century ago in Jn re

Gault:

We appreciate that special problems may

arise with respect to waiver of the [Fifth

Amendment] privilege by or on behalf of

children, and that there may well be some

differences in technique — but not in princi

ple — depending upon the age of the child and

the presence and competence of parents... ,

the greatest care must be taken to assure

that the admission was voluntary, in the

sense not only that it was not coerced or sug-

gested, but also that it was not the product of

ignorance of rights or of adolescent fantasy,

fright or despair.

In re: Gault, 387 U.S. at 55 (emph. added).

There can be no doubt that those “special prob-

lems” — as well as the established body of law from

this Court and others which deal specifically with the

care which must be afforded juvenile criminal dé

fendants in custodial interrogations — properly influ

enced the Ninth Circuit’s analysis of Aaron’s Fifth

Amendment claims, and would do the same if thi

Court were to review this case. Consequently, the

“special problems” inherent in addressing a juvenile

case, and the unique and compelling factual issue

involved in this case, make it an inappropriate ve

hicle for resolving the questions presented

3. Petitioners’ Claim That the Ninth

Circuit’s Decision Will Have a “Chilling

Effect” on Law Enforcement Activities

Is Supported Neither By Fact Nor

Law.

In a reprise of the unsuccessful arguments they

offered in the Stoot case, Petitioners again argue the

Ninth Circuit’s decision in this case will have a

“chilling effect” on law enforcement activities. Spe

cifically, Petitioners suggest that the Ninth Circuit

opinion creates an unworkable standard that will

expose law enforcement officers to unnecessary law

suits and civil lability, blithely characterizing thi

case as involving “garden variety” interrogation

techniques, even where juveniles were involved

Those arguments, however, presuppose that law

enforcement officers do not have to follow rules

applicable to interrogations and that if they do not,

there will be no repercussions. To the contrary, this

Court's precedent, beginning with Miranda and

50)

continuing to the present day, sets forth clear re

quirements for a proper interrogation. A law enforce

ment officer must follow those rules or face the

CONSeCqUCNCE:

Here, the record aptly demonstrates how time

and again, Petitioners deliberately flouted those rule:

by interrogating Michael aid Aaron for hours, and

only Mirandizing them at the end of those interroga

lions afler they had overcome the boys’ will and

secured the confessions they were seeking. Conse

quently, Petitioners’ arguments about the need for

“proper guidelines” rings hollow when the record

shows how they deliberately violated the guidelines

this Court has already provided in myriad case:

Moreover, at the time Petitioners took that action, it

was firmly established in the Ninth Circuit that the

defense of qualified immunity is not available to

police officers who knowingly violate the law. Cooper

v. Dupnick, 963 F.2d 1220, 1251 (9th Cir. 1992),

overruled on other grounds in Chavez, 538 U.S. 760

Rather than justifying protection for the prope:

exercise of their duties, when law enforcement off}

cials act as they have in this case, “they invite redre:

under section 1983.” /d. at 1252

Petitioners’ fall-back position that the police

cannot, as a matter of law, be found lable for any

hifth Amendment violation where prosecutors (and

not they) introduce those coerced statements at trial

merits even less consideration. Such an argu

ment lacks any legal support, and, in fact, has been

squarely rejected by the very authority cited by

Petitioners. See McKinley, 404 F.3d at 436-437. fn. 23

(addressing the District Court's decision in this case

and finding it reasoning wholly “unpersuasive

McKinley then cited a long train of authority mclud

ing, Chavez — where it has never been questioned that

the police may be held liable under §& 1983 for violat

ing someone's Fifth Amendment rights. /d

Indeed, as both the Sixth Circuit in McKinley and

the Ninth Circuit in this case properly concluded, a

rule barring suits ayainst the police for Fifth

Amendment violations ts a rule barring any suits for

hifth Amendment violations, given that prosecutor

are absolutely immune from suit for their conduct a

advocates within the judicial process. /d. at 437-438

tng Buckley vo. Iitzstmmon D09 US. 249. 24

(1998

But it cannot by and in fact. ha never been

that invasions of the right avainst compelled elf

mcrimination = are not actionable Consequently

Petitioners’ assertion Lo the contrary, hould = |

rejected by this Court on that basis alon (App. 42

14.)

In sum, as freedom from compulsion lie al the

heart of the Fifth Amendment, no purpose would be

advanced by making the police immune, as a matter

of law from the proveclions that Amendment pre

vides Indeed, if thi were the Case, the police would

only he encouraged LO compel coerced and elf

incriminating statements with compl te impunity

surely, such a re ult would be wholly contrary to a

32

long train of well-settled authority meant to regulate

and discourage such police misconduct under the

aegis of the Fifth Amendment.

B. Petitioners’ Arguments That There Is a

Need to Clarify “Conscience Shocking”

Behavior Under the Fourteenth Amend-

ment Also Fails to Raise an Issue Wor-

thy of This Court’s Review.

1. This Court’s Decisions Are Replete

with Examples of Verbally Coercive

Interrogations Which Violate the

Fourteenth Amendment.

Petitioners assert that the Ninth Circuit’s opin-

ion in this case creates uncertainty and confusion

about what conduct is sufficiently “conscience shock-

ing” to warrant Fourteenth Amendment liability.

They premise that argument on the assertion that

“verbal” coercion and deception should not be enough,

even where juveniles are the target of that coercion.

But over a half-century ago in Haley, this Court

found that a 15-year-old boy — based upon verbal

coercion alone — was necessarily ill-equipped to with-

stand an overnight police interrogation resulting in

his coerced confession. Haley, 332 U.S. at 599-600.

Writing for the Court, Justice Douglas reasoned that

such a juvenile “cannot be judged by the more exact-

ing standards of the law,” and further observed

“(tlhat which would leave a man cold and unim-

pressed can overawe and overwhelm a lad in his early

33

teens.” Jd. Recognizing both that such a boy “ques-

tioned through the dead of night by relays of police, is

a ready victim of the inquisition,” and that while

“mature men possibly might stand the ordeal ... a

lad of tender years is no match for the police in such a

contest,” the Haley court demanded that “special care

in scrutinizing the record must be used” in order to

protect the constitutional rights of juveniles, and to

prevent the police from using custodial interrogations

for “wringing confessions from them.” Jd. at 599-601

(emph. added).

Not 14 years later, in Gallegos v. Colorado, 370

U.S. 49 (1962), this Court was again called upon to

scrutinize a confession wrought from a juvenile in the

course of a custodial police interrogation. Finding

that the youth of the accused — 14 years old — was a

“crucial factor” in determining whether due process

violations had occurred, the Gallegos court reasoned:

[A] 14 year-old boy, no matter how sophisti-

cated, is unlikely to have any conception of

what will confront him when he is made ac-

cessible only to the police. That is to say, we

deal with a person who is not equal to the po-

lice in knowledge and understanding of the

consequences of the questions and answers

being recorded and is unable to know how to

protect his own interests or how to get the

benefit of his constitutional rights.

Id. at 1212.

Over the prosecution’s continuing assertion that

such youth and immaturity were “irrelevant” in light

34

of the allegedly “voluntary” nature of the confession

made, the Gallegos court retorted:

But if we took that position, 1t would, with

all deference, be in callous disregard of this

boy’s constitutional rights. He cannot be

compared with an adult in full possession of

his senses, and knowledgeable of the conse-

quences of his admissions.

Id. at 1212-1213.

Consequently, Gallegos, like Haley before it,

concluded that “the formal confession on which this

conviction may have rested was obtained in violation

of due process.” /d. at 1213.

Not four years later, the Court in /n re: Gault,

387 U.S. 1, again stressed the importance that youth

plays in determining whether a confession is coerced,

and echoed the mandate that “the greatest care” must

be taken to assure that juvenile confessions are

“voluntary, in the sense not only that [they are]

not coerced or suggested, but also that [they are] not

the product of ignorance of rights or of adolescent

fantasy, fright or despair.” Gault, 387 U.S. at 55

(emph. added). That “greatest care” standard was

based upon this Court’s review of several lower court

decisions confirming how juvenile confessions are

often “the p-oduct of fear and fatigue due to extensive

police grilling,” and how “the frightening atmosphere

of a police station is likely to have a harmful effect

on the mind and will of the boy.” Jd. at 52-53 (in-

ternal quotes omitted). And so the Gault court, too,

concluded with the continuing recognition that “au-

thoritative opinion has cast formidable doubt upon

the reliability and trustworthiness of ‘confessions’ by

children.” /d.

In the several decades since Haley, Gallegos, and

Gault, other courts have universally followed this

same line of reasoning, insisting that the law view

juveniles differently than their adult counterparts.”

Most notably, however, is the fact that the police

conduct in those cases was “verbal,” as it was in this

case. Indeed, as this Court has repeated many times,

coercion can be mental as well as physical, as “the

blood of the accused is not the only hallmark of an

* See, e.g., Woods v. Clusen, 794 F.2d 293, 296-298 (7th Cir.

1986), (finding that various coercive police techniques — relays of

police interrogators, lying about the state of the evidence,

promises of leniency — violated a 16-year-old’s Fourteenth

Amendment rights, given his relative age, experience, and

education); Taylor v. Maddox, 366 F.3d 992, 1013-1016 (9th Cir.

2004) (applying Haley’s “greatest care” standard to reject a

coerced confession wrought from a 16-year-old juvenile and

ultimately finding that the police had clearly violated the

juvenile’s Fourteenth Amendment rights. Secondary authority is

also in accord. See 87 A.L.R.2d 624, Voluntariness and Admissi-

bility of Minor’s Confessions; 82 N.C.L. Rev. 891, 944, The

Problem of False Confessions in the Post-DNA World; see also 30

N.Y.U. Rev.L. & Soc. Change 209, The Reality of False Confes-

sions — Lessons of the Central Park Jogger Case (recounting in

chilling detail how and why five juvenile boys subjected to

heavy-handed police interrogation techniques confessed their in-

volvement in an infamous crime they did not commit, and were

prosecuted and convicted on the basis of those confessions alone,

until the real killer, a serial rapist and convicted murderer,

confessed to the crime some thirteen years later.)

36

unconstitutional inquisition.” See, e.g., Arizona v.

Fulminante, 499 U.S. 279, 287 (1991); Reck v. Pate,

367 U.S. 483, 440-441 (1961); Blackburn v. Alabama,

361 U.S. 199, 206 (1960).

Here, the Ninth Circuit concluded from the

record before it that Michael’s and Aaron’s confes-

sions were the product of “psychological torture,” and

that “lo]lne need only read the transcripts of the boys’

interrogations, or watch the videotapes, to under-

stand how thoroughly the defendants’ conduct in this

case ‘shocks the conscience.’” (App. 47.)

On that record, and in light of the clearly estab-

lished standards governing even verbal coercion

which run through myriad decisions of this Court,

there is absolutely no need for this Court’s interven-

tion at this time.

2. Petitioners’ Companion “Shocks the

Conscience” Arguments Warrant Even

Less Scrutiny by This Court.

Petitioners badly mischaracterize the Ninth Cir-

cuit’s opinion and the record below to float two com-

panion arguments, neither of which warrants this

Court’s review. Specifically, Petitioners assert that a

Fifth Amendment violation based upon coercive

interrogation techniques, and a Fourteenth Amend-

ment violation based upon deprivation of familial

companionship, cannot be found absent conscience

shocking behavior.

~l]

But those arguments belie the fact that the

Ninth Circuit, in finding that Petitioners violated

Michael’s and Aaron’s Fifth Amendment rights,

necessarily relied upon the same conscience shocking

behavior that also formed the basis for Petitioners’

violation of the boys’ Fourteenth Amendment rights.

In other words, the same coercive interrogation

techniques employed by Petitioners amounted to

violations of both Constitutional protections, given

the egregious nature of that conduct. That this is so

does not indicate that this case is at variance with

any other decisions, but merely reflects the compel-

ling facts which were before the Ninth Circuit, impli-

cating both Fifth Amendment and _ Fourteenth

Amendment protections.

Similarly, Petitioners’ assertion that a depriva-

tion of familial companionship claim under the Four-

teenth Amendment requires conscience’ shocking

behavior — and not mere “unwarranted interference”

— is also an inadequate grounds for review. Indeed, in

this case, it was the Petitioners’ conscience shocking

and coercive interrogation tactics which the Ninth

Circuit found to have caused Aaron’s wrongful incar-

ceration and concomitant separation from his family.

(See App. 69 [“Because Michael’s and Aaron’s contin-

ued detentions were wrongfully justified by their

illegally coerced confessions, we reverse’].) Thus,

although the Ninth Circuit applied the proper stan-

dard in reinstating that familial relationship claim,

even if it were to have applied the “conscience shock-

ing standard” Petitioners espouse, the outcome would

38

have been exactly the same. Accordingly, there is no

reason for this Court to intervene on facts which

would compel the same outcome, irrespective of the

standard applied.

C. The Ninth Circuit’s Reversal of Summary

Judgment on the Conspiracy Claim

Asserted Against Blum Was Entirely

Fact-Driven and Therefore Presents No

Legal Issue for This Court to Clarify.

Blum’s individual argument — that as a private

citizen, he cannot be held liable for conspiracy to

violate Michael’s and Aaron’s constitutional rights —

is presented without regard to the controlling stand-

ard of review at summary judgment. Indeed, Blum

recites at length improper factual findings made by

the District Court as if they had been made after

trial. In contrast, the Ninth Circuit simply deter-

mined that genuine questions of material fact exist

regarding the level and extent of Blum’s involvement

which could not be determined at summary judg-

ment, and reversed the District Court on that basis.

(App. 66-68.)

Rather than running contrary to this Court’s

decision in Richardson v. McKnight, 521 U.S. 399,

412 (1997), that conclusion by the Ninth Circuit only

confirms that Blum is not automatically entitled to

§ 1983 immunity merely because he is a private

individual, as was his primary argument on appeal.

Moreover, as Blum’s own petition reveals, such a

39

holding is not a matter of controversy, but has been

echoed in the decisions of “nearly every other Circuit

Court” which has considered the issue. Thus, the

compulsion for this Court’s review is clearly lacking.

Perhaps more importantly, however, is the fact

that the Ninth Circuit did not deny Blum qualified

immunity based upon a “blanket prohibition” that

private actors are never entitled to such immunity, as

Blum contends. Indeed, the cases which Blum cites

hold to the contrary. See, e.g., Franklin v. Fox, 312

F.3d 423, 445 (9th Cir. 2002) (which Bium claims

applied a “blanket denial of qualified immunity to [a]

private individual,” but which instead upheld the

district court’s grant of summary judgment upon a

finding that no evidentiary basis existed for the

conspiracy claim the plaintiff had asserted as the sole

basis for § 1983 liability against that individual);

Clement v. City of Glendale, 518 F.3d 1090, 1096-1097

(9th Cir. 2008) (which Blum also asserts demon-

strates the Ninth Circuit’s trend of “blanket denial” of

qualified immunity to private individuals, but which

instead extended immunity to a private towing com-

pany under Richardson’s “good faith” defense to

§ 1983 liability).

In any event, notwithstanding whatever post-

Richardson “blanket prohibition” Blum believes he

may have discerned from those decisions, no such

automatic rule played any role here. Instead, the

Ninth Circuit simply concluded that the record evi-

dence regarding Blum’s involvement raised factual

40

questions which could not be properly determined at

summary judgment:

The record shows that the quality of Blum’s

involvement in the interrogations is not cat-

egorically inconsistent with a tacit “meeting

of the minds.” According to one of the detec-

tives, Blum helped the police formulate a

“tactical plan” to approach the interview.

Moreover, the detectives “pretty much” fol-

lowed his advice after these consultations.

Insofar as these tactics and lines of question-

ing by the detectives shock the conscience, as

demonstrated above, summary judgment in

favor of Blum is unwarranted.

(App. 67.)

Thus, in determining that a meeting of the minds

could be inferred from the circumstantial evidence

(including Blum’s involvement in the interrogations

and in formulating and directing the tactical plan),

the Ninth Circuit reasoned that the evidence was

sufficient for a reasonable factfinder to conclude it

was “unlikely to have been undertaken without an

agreement.” (App. 67-68.) On that basis alone, the

Ninth Circuit quite correctly reversed summary

judgment as to Blum. There is nothing controversial

about that proper application of well-settled sum-

mary judgment standards. Consequently, there is no

issue of law for this Court to clarify now.

4]

IV. CONCLUSION

Petitioners have not established any compelling

reasons for this Court te grant their various petitions.

For the foregoing reasons, Respondents respectfully

request this Court to deny those petitions.

Respectfully submitted,

BOUDREAU WILLIAMS LLP

JON R. WILLIAMS, ESQ.

Counsel of Record

666 State Street

San Diego, CA 92101

(619) 238-0370 (phone)

(619) 238-8181 (facsimile)

williams@bwlawllp.com

SCHOVILLE & ARNELL, LLP

DENNIS A. SCHOVILLE, Esq.

LouIs G. ARNELL, Esq.

2404 Broadway

San Diego, CA 92101

(619) 232-9901 (phone)

(619) 232-9904 (facsimile)

Attorneys for Respondents,

Aaron Houser,

Margaret Susan Houser,

and Gregg Houser

y * —— —

: iA} (2. ) Supreme Court, U.S.

Uy) -

on / \ F°'LED

NC eee

Nos. 10-376, 10-377, 10-420 NOV 4 Ni

: Sas |

| OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

.

CHRISTOPHER MCDONOUGH,

Petitioner,

Vs.

MICHAEL CROWE, et al.,

Respondents

———— * ——E

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

7 ee

CONSOLIDATED REPLY TO OPPOSITIONS

TO PETITION FOR WRIT OF CERTIORARI

—— -¢

TIMOTHY ‘T. COATES, ESQ.

Counsel of Record

CYNTHIA E. TOBISMAN, ESQ.

ALANA H. ROTTER, ESQ.

GREINES, MARTIN, STELN & RICHLAND LLP

5900 Wilshire Boulevard, Twelfth Fioor

Los Angeles, California 90036

Telephone: (310) 859-7811

Facsimile: (310) 276-5261

E-Mail: tcoates@gmsr.com

DIANA L, FIELD, Esq.

FERGUSON, PRAET & SHERMAN

1631 East Eighteenth Street

Santa Ana, California 92705

Telephone: (714) 953-5300

Facsimile: (714) 953-1143

Counsel for Petitioner

Christopher McDonough

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

REASONS TO GRANT PETITION

IT]

THIS CASE PRESENTS A PROPER

VEHICLE TC RESOLVE THE INTER-

CIRCUIT CONFLICT REGARDING

WHETHER USE OF COERCED TESTI!

MONY IN PRETRIAL PROCEEDINGS

VIOLATES THE FIFTH AMENDMENT

A. The Third And Fourth Circuits Have

Rejected Fifth Amendment Claims

Based On Pretrial Use Of A Suspect’s

Statements

8. This Case Presents An _ Excellent

Vehicle For Resolving The Circuit

Conflict

REVIEW [S NECESSARY TO RESOLVE

THE INTER-CIRCUIT CONFLICT

REGARDING WHAT CONSTITUTES

COERCIVE INTERROGATION OF A

MINOR SUSPECT UNDER THE FIFTH

PERT T, nuicccossrxicsciscacssaceouares

THE COURT SHOULD RESOLVE THE

INTER-CIRCUIT CONFLICT REGARD

ING WHETHER PURELY VERBAL

CONDUCT NOT INCLUDING THREATS

VIOLATES THE FOURTEENTH

AMENDMENT

TABLE OF CONTENTS (Continued

Paye

IV. REVIEW IS NECESSARY BECAUSI

THE NINTH CIRCUIT REJECTED THE

WELL-ESTABLISHED “SHOCKS-THE

CONSCIENCE” STANDARD AS TO

FOURTEENTH AMENDMENT CLAIMS

FOR DEPRIVATION OF FAMILIAL RE

LATIONSHIP 14

CONCLUSION

111

TABLE OF AUTHORITIES

Page

CASES

Burrell v. Virginia, 395 F.3d 508 (4th Cir. 2005).....4, 6

Chavez v. Martinez, 538 U.S. 760 (2003)............. 4,6, 7

County of Sacramento v. Lewis, 523 U.S. 833

RA SRRER ES CROs ny spe ete SAE nae ORE en a a 2,14

Cunningham v. Wenatchee, 345 F.3d 802 (9th

ech cases butch en's aa rane daw eked sniawnaras <ancie 11

Dickerson v. United States, 530 U.S. 428 (2000)......... 5

Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2001) ...... Ll

Gallegos v. Colorado, 370 U.S. 49 (1962)......00000.00.00.. 11

Be Pe Sr, ee Bite BE BED ovverccesvconcsceccsexseceacesivenss 11]

Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994).........5, 6

Fraley U. Ohio, Sa2 U.S. S96 (194B) .........<cccccsceccssssceees 11

Renda v. King, 347 F.3d 550 (3d Cir. 2003)......... 4,5,6

Stoot v. City of Everett, 582 F.3d 910 (9th Cir.

AR ans ate diet i intl oe pth AD SOD 8 WR Ee Se Ee 7

REASONS TO GRANT PETITION

Fifth Amendment. The Court should grant

review to resolve the circuit conflict concerning

whether use of coerced testimony in pretrial criminal

proceedings violates the Fifth Amendment. Respon-

dents’ suggestion there is no conflict is belied by the

case law. And Respondents’ insistence this case is a

poor vehicle for resolving the conflict since it involves

minors, is belied by logic: That minors are involved

has no bearing on whether pretrial use of coerced

testimony constitutes a “use” violation of the Fifth

Amendment.

The Court should also grant review to delineate

what constitutes coercive interrogation of a minor

under the Fifth Amendment. Respondents’ claims

against Petitioner Christopher McDonough are very

narrow, largely confined to his having deceived the

minor plaintiffs during interrogation — a well estab-

lished, judicially sanctioned interrogation technique.

If such tactics violate the Fifth Amendment, or if

there are special rules for minors, police departments

and their officers must know. Can officers ever

deceive minor suspects? If so, when? Such interroga-

tions are a daily part of law enforcement practice and

clear guidelines are essential, both to avoid potential

liability and to assure admissible evidence in criminal

proceedings.

Fourteenth Amendment. Review is also neces-

sary to resolve what type of conduct violates the

Fourteenth Amendment. McDonough did not raise his

bo

voice or threaten the suspects in any way. As noted,

Respondents’ chief complaint is that McDonough led

to the minor plaintiffs. The Ninth Circuit concluded

this alleged conduct “shocked the conscience” and

thus exposed McDonough to lability under the Four-

teenth Amendment. In response, Respondents neglect

even to mention the bevy of cases establishing that,

in so holding, the Ninth Circuit has parted company

with this Court’s precedents and the law of other

circuits.

Finally, review is necessary to bring the Ninth

Circuit into line with every other circuit regarding

the standards for establishing a substantive due

process claim for deprivation of familial companion-

ship. The Ninth Circuit expressly repudiated this

Court’s holding that any Fourteenth Amendment

substantive due process claim hinges on whether the

challenged conduct “shock[s] the contemporary con-

science.” See County of Sacramento v. Lewis, 523 U.S.

833, 836, 847 n.8 (1998). Respondents’ only answer is

that even if the Ninth Circuit applied the incorrect

standard, it was not prejudicial because the result

would have been the same under the correct stan-

dard. As noted however, even under the “shocks-the-

conscience” standard there should be no liability here.

But in any event, the confusion sowed by the Ninth

Circuit’s published opinion exists regardless of preju-

dice. The Court should eliminate that confusion by

resolving the conflict.

I THIS CASE PRESENTS A PROPER VEHI-

CLE TO RESOLVE THE INTER-CIRCUIT

CONFLICT REGARDING WHETHER USE

OF COERCED TESTIMONY IN PRETRIAL

PROCEEDINGS VIOLATES THE FIFTH

AMENDMENT.

To provide government officials with guidance

regarding the circumstances under which they may

use a suspect’s testimony, the Court should resolve

the circuit conflict concerning whether use of coerced

testimony in pretrial criminal proceedings violates

the Fifth Amendment. (McDonough Cert. Petition

“McDonough” ] 16-22.)

Respondents insist that there is no split among

the circuits or, in any event, that this case presents a

poor vehicle for resolving it. They are wrong.

A. The Third And Fourth Circuits Have

Rejected Fifth Amendment Claims

Based On Pretrial Use Of A Suspect’s

Statements.

Respondents agree that the Second, Seventh and

Ninth Circuits have held that use of a suspect’s

coerced statement at any criminal proceeding violates

the Fifth Amendment. (Houser Opp. 20-27.) But they

insist the Third and Fourth Circuits have never

taken the opposite view. Ud.)

In fact, the Third and Fourth Circuits have

squarely held that pretrial use of coerced testimony

does not violate the Fifth Amendment. (See

McDonough 17-18, citing Renda v. King, 347 F.3d 550

(3d Cir. 2003); Burrell v. Virginia, 395 F.3d 508 (4th

Cir. 2005).)

Boiled down, Respondents’ response is that one

circuit got the law wrong and the other dealt with

distinguishable facts. Respondents argue that review

is unnecessary because both circuits might agree with

the Ninth Circuit if confronted with the facts here.

(Houser Opp. 21-24.)

But it is far from clear that the Third and Fourth

Circuits would have found a violation here. Both

Circuits considered Chavez v. Martinez, 538 U.S. 760

(2003) and then rejected use violation claims in broad

language limiting the Fifth Amendment to use of

testimony at trial. Renda, 347 F.3d at 559 (“it is the

use of coerced statements during a criminal trial, and

not in obtaining an indictment, that violates the

Constitution”); Burrell, 395 F.3d at 514 (plaintiff’s

claim failed under the Chavez plurality opinion

because “(hJe does not allege any trial action that

violated his Fifth Amendment rights”).

The district courts in eight states are bound by

that language. If, as Respondents contend, that

language results from weak reasoning or dictates the

wrong result, this Court’s review is necessary to

correct it. But the fact remains: The split among the

circuits is real and requires the Court’s attention.

on

Moreover, the Third and Fourth Circuit cases

conflict more directly with the Ninth Circuit’s opinion

in this case than Respondents acknowledge.

Renda v. King. The Third Circuit recognized

that Chavez left open the question of when a criminal

proceeding commences for purposes of the Fifth

Amendment “use” violation inquiry. Renda, 347 F.3d

at 559. Without guidance from this Court, the Third

Circuit based its decision on its own precedent,

Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994), holding

that use of coerced statements to obtain an indict-

ment does not violate the Fifth Amendment.

Respondents’ attacks on that conclusion go to the

merits of the issue that McDonough has presented for

review, not to whether the issue warrants this Court’s

attention.

In any event, Respondents’ attacks on Renda’s

reasoning lack merit. Specifically, Respondents

emphasize that Giuffre predates Dickerson v. United

States, 530 U.S. 428 (2000), a Miranda case. (Houser

Opp. 21.) But Renda expressly held that Guiuffre

remained good law after Dickerson and Chavez.

Renda, 347 F.3d at 557-58. (“{I}n light of the Supreme

Court’s recent decision in Chavez, it is clear that

Giuffre still is good law following Dickerson, and that

the District Court properly ruled that questioning a

plaintiff in custody without providing Miranda warn-

ings is not a basis for a § 1983 claim as long as the

plaintiff’s statements are not used against her at

trial”).

6

Respondents also emphasize that in Giuffre, the

charges were dropped prior to the filing of a criminal

case. (Houser Opp. 21.) But it is the facts of Renda,

not of Giuffre, that matter here. And in Renda, the

plaintiff was arrested, arraigned, and incarcerated

based on her coerced testimony. Renda, 347 F.3d at

553; see also id. at 559-60. Thus, Renda stands in

stark contrast to the present case, where the Ninth

Circuit held that pretrial use of coerced testimony

violates the Fifth Amendment.

Burrell v. Virginia. The Fourth Circuit case,

Burrell, also creates a clear circuit split. Contrary to

Respondents’ description, Burrell expressly relied on

the Chavez plurality’s reasoning: The Fourth Circuit

explained that the Chavez plurality found no “use”

violation because the compelled testimony was not

admitted in court, and that Justice Souter’s concur-

rence found no use violation because the plaintiff had

failed to make a showing justifying the attachment of

civil liability to police interrogations. 395 F.3d at 513.

Burrell then concluded, “[o]n the reasoning of either

the Chavez plurality or Justice Souter’s concurrence

in the judgment, Burrell’s Fifth Amendment section

1983 claim fails to state a claim.” Jd. at 514.

Thus, Burrell’s conclusion that the plaintiff’s

Fifth Amendment claim failed under the Chavez

plurality’s reasoning because he “does not allege any

trial action that violated his Fifth Amendment rights”

(id.), directly conflicts with the Ninth Circuit’s con-

clusion here.

B. This Case Presents An Excellent Vehicle

For Resolving The Circuit Conflict.

Respondents suggest this case is a poor vehicle

for reviewing the Fifth Amendment questions because

it involves juvenile suspects, who are subject to

different — and more stringent — interrogation stan-

dards than their fully emancipated adult counter-

parts. (Houser Opp. 19.)

Respondents’ argument is a non sequitur. The

fact that police must take great care when interrogat-

ing minors to avoid coercing confessions has no

bearing on whether pretrial use of coerced testimony

constitutes a “use” violation under the Fifth Amend-

ment. Whether pretrial use of coerced testimony is

permissible depends on how the Court construes the

word “use” in the Fifth Amendment, not on the age of

the suspects.

Finally, Respondents point out that just seven

months ago, this Court declined to grant a petition for

writ of certiorari in Stoot v. City of Everett, 582 F.3d

910 (9th Cir. 2009), cert. denied, April 5, 2010.

(Houser Opp. 19.) But the fact that the same issue

has arisen in two cases from a single Circuit in con-

secutive terms illustrates the recurring nature of

Fifth Amendment claims premised on pretrial use of

a suspect’s testimony.

In the seven years since Chavez, five circuits

have split on whether pretrial proceedings constitute

a “criminal case” for purposes of the Fifth Amendment.

The Court should resolve the conflict and bring

certainty to an area of the law impacting the daily

work of police departments and prosecutors across

the country.

Il. REVIEW IS NECESSARY TO RESOLVE

THE INTER-CIRCUIT CONFLICT RE-

GARDING WHAT CONSTITUTES COER-

CIVE INTERROGATION OF A MINOR

SUSPECT UNDER THE FIFTH AMEND-

MENT.

The Court should also grant review to resolve the

circuit split regarding whether the routine interroga-

tion techniques that McDonough employed here

constitute coercion for Fifth Amendment purposes.

(McDonough 22-29.) McDonough’s tactics — accusing

the suspect of lying, implying that others have impli-

cated the suspect and touting the accuracy of the

CVSA machine — have garnered widespread judicial

acceptance. By concluding these techniques run afoul

of the Fifth Amendment, the Ninth Circuit’s decision

has thrown the law into disarray.

Respondents argue — without any case citations —

that Petitioners’ arguments “presuppose that law

enforcement officers do not have to follow the rules

applicable to interrogations and that if they do not,

there will be no repercussions.” (Houser Opp. 29.) But

what those “rules applicable to interrogations” might

be, Respondents do not say.

9

And, in fact, while the Court has spoken generally

of the need to treat the interrogation of minors with

greater sensitivity than the interrogation of adults, it

has never delineated whether and when the routine

techniques that McDonough employed here constitute

coercion.

The Ninth Circuit’s decision even casts doubt on

what constitutes compelled testimony. As Respon-

dents correctly acknowledge, “freedom from compul-

sion lies at the heart of the Fifth Amendment.”

(Houser Opp. 31.) Yet here, the sine qua non of com-

pulsion — overriding the suspect’s will — is absent.

McDonough’s interrogations yielded no confession

from either suspect.

Respondents take McDonough to task for using

deception in his interrogations. (See Houser Opp.

9-10, 11-12.) But lying to a suspect is a judicially-

sanctioned interview technique. So the question

remains: What kind of rule do the Respondents and

the Ninth Circuit propose? Can an officer never lie to

a minor? Sometimes? And if so, when? The answers to

these questions are essential to the day-to-day work

of police across the country, both for purposes of

avoiding civil liability and assuring admissibility of

evidence in criminal proceedings. The “I-know-it-

when-I-see-it-standard” that the Ninth Circuit has

effectively imposed here does not help officers in

practice. To avoid inadvertently violating the Fifth

Amendment, officers need clear guidance on what

interrogation techniques are permissible.

LO

At the very least, the Court should grant review

to reaffirm that officers who use routine police inter-

rogation techniques and who do not actually compe!

testimony are entitled to qualified immunity. Ample

case law approves the interrogation techniques used

in the present case. (See McDonough 24-25.) Accord

ingly, no reasonable police officer would have known

in advance that the type of accepted police practices

utilized here would subsequently be deemed improp-

er. Ud. at 28-29.)

In response, Respondents ignore the case law

condoning the exact interrogation techniques used in

the present case. Instead, they state ipse dixit that

“no purpose would be advanced by making the police

immune, as a matter of law, from the protections that

[the Fifth) Amendment provides.” (Houser Opp. 31.)

This is no response at all.

lil. THE COURT SHOULD RESOLVE THE

INTER-CIRCUIT CONFLICT REGARDING

WHETHER PURELY VERBAL CONDUCT

NOT INCLUDING THREATS VIOLATES

THE FOURTEENTH AMENDMENT.

The Ninth Circuit’s opinion also represents a

stark departure from the voluminous case law of this

Court and of other circuits establishing that purely

verbal conduct devoid of any threats of harm does not

“shock the conscience” and therefore subject a police

officer to Fourteenth Amendment liability. (See

McDonough 29-41.)

1]

In response, Respondents ignore the voluminous

case law establishing that where the police conduct at

issue is not physical, the “conscience-shocking”

standard is nearly impossible to meet. (See Crowe

Opp. 24-25; Houser Opp. 32-36.) Instead, they cite a

series of cases discussing whether a given statement

by a juvenile suspect was admissible at trial. (Houser

Opp. 32-36, citing Haley v. Ohio, 332 U.S. 596 (1948)

(reversing conviction where suspect’s coerced testi

mony was used at trial); Gallegos v. Colorado, 370

U.S. 49 (1962) (same); In re Gault, 387 U.S. 1 (1967)

(same).)

But whether a statement has been coerced and

thus is inadmissible at trial is a distinctly different

question than that posed here: Whether purely verbal

conduct devoid of any threats can subject an officer to

liability for civil damages under the Fourteenth

Amendment. The standards for the two questions are

decidedly different. A statement can be coerced, and

thus inadmissible pursuant to the Fifth Amendment's

guarantee against self-incrimination, without rising

to the level of a violation of the Fourteenth Amend-

ment. Compare Cunningham v. Wenatchee, 345 F.3d

802, 810 (9th Cir. 2003) (interview is coercive where

“the officer’s tactics undermined the suspect’s ability

to exercise his free will”) with Fontana v. Haskin, 262

F.3d 871, 882 n.7 (9th Cir. 2001) (to violate Four-

teenth Amendment, interview tactics must be “‘so

egregious, so outrageous, that [they] may fairly be

said to shock the contemporary conscience’ ”).

| }

These different standards make sense. Where a

suspect's coerced testimony is used at trial, the Fifth

Amendment provides the avenues for redress — eithe

by providing a basis for reversing the conviction or by

providing a basis for the suspect to seek civil damages

sut where the suspect’s testimony is not used at trial,

the more stringent standards embodied by the Four

teenth Amendment must be met before he can obtain

civil damages

Given these different standards, the case law

cited by Respondents discussing whether an interro

gation resulted in coerced testimony that was inad

missible at trial, provides no basis for concluding that

the Ninth Circuit’s opinion here — holding that purely

verbal conduct is sufficient to constitute a Fourteenth

Amendment violation is anything other than a

departure from this Court’s precedents and the

precedents of the other circuits

The confusion wrought by such amorphous due

process claims is underscored by Respondents’ claims

against McDonough. Respondents fault McDonough

for deceiving the juvenile suspects. (See Houser Opp

32.) But case law sanctions lying to a suspect. Thus,

the Ninth Circuit’s decision radically lowers the bar

for what violates the Fourteenth Amendment it

casts doubt on whether conduct that may not even

constitute coercion suffices. By suggesting that an

officer cannot lie to a juvenile suspect without expos

ing himself to liability under the Fourteenth Amend

ment, the Ninth Circuit’s opinion creates uncertainty

regarding what police can do. Can an officer ever le

If it 1 sometimes permissible for an officer to he

under what circumstances | t permissible? What

kind of deception rises to the level of a substantive

due process violation?

Respondents are correct (Houser Opp. 36), that

the Ninth Circuit concluded that these interrogation

could violate the Fourteenth Amendment. But both

the district court and the trial court (in the underly

ing criminal case) listened to the same tape record

ings of the interviews and found that McDonough

conduct was not extreme or outrageous. This di sparily

evidences the problem with the Ninth Circuit’s deci

sion: Law enforcement agencies and officers acro

the country will be subject to litigation on the basis o!

vague standards that vary from courtroom to court

room. The Court should grant review to eliminate the

amorphous tort the Ninth Circuit created here

At least, the Court should vrant review to make

it clear that McDonough, and police officers like him

are entitled to qualified immunity for the conduct at

issue here. No reasonable officer would have believed

that McDonough’s calm, measured tone and relatively

innocuous question constituted ai “conscienc

shocking” interrogation. (McDonough 38-41.) Respon

dents offer no response to McDonough’s contention

that he 1s entitled to qualified immunity

14

IV. REVIEW IS NECESSARY BECAUSE THE

NINTH CIRCUIT REJECTED THE

WELL-ESTABLISHED “SHOCKS-THE-

CONSCIENCE” STANDARD AS TO FOUR-

TEENTH AMENDMENT CLAIMS FOR

DEPRIVATION OF FAMILIAL RELATION-

SHIP.

The Court should grant review because the Ninth

Circuit has expressly rejected the “shocks the con-

science” standard that has long been the threshold

requirement for all Fourteenth Amendment viola-

tions. See Lewis, 523 U.S. at 846-49 & n.8. (See

McDonough 41-43.)

The Crowe Respondents respond by stating ipse

dixit that, “The Ninth Circuit used the correct legal

standard (‘unwarranted interference’) for interference

with family relations and the Petition does not show

compelling reasons to grant certiorari to decide this

question.” (Crowe Opp. 25.) But as demonstrated, this

isn’t true.

The Houser Respondents respond to the Ninth

Circuit’s rejection of the “shocks-the-conscience”

standard by arguing that even if the Ninth Circuit

erred, “the outcome would have been exactly the

same” had it used the correct standard. (Houser Opp.

37-38 (emphasis omitted).) However, as noted, the

Ninth Circuit’s application of the “shocks the con-

science” test is dubious here. And in any event,

regardless of prejudice, the fact remains that the

Ninth Circuit has espoused a standard in a published

ld

opinion that is squarely at odds with the “shocks-the-

conscience” standard that has long been the threshold

requirement for all Fourteenth Amendment viola-

tions. It is essential that the Court resolve the conflict

and eliminate the confusion.

¢

CONCLUSION

For the foregoing reasons, Petitioner urges that

the petition be granted.

DATED: November 30, 2010

Respectfully submitted,

TIMOTHY T. COATES, Esq.

Counsel of Record

CYNTHIA BE. TOBISMAN, Esq.

ALANA H. ROTTER, Esq.

GRKEINES, MARTIN, STEIN &

RICHLAND LLP

5900 Wilshire Boulevard,

Twelfth Floor

Los Angeles, California 90036

Telephone: (310) 859-7811

Facsimile: (310) 276-5261

DIANA L. FIELD, Esq.

FERGUSON, PRAET & SHERMAN

1631 East Eighteenth Street

Santa Ana, California 92705

Telephone: (714) 953-5300

Facsimile: (714) 953-1143

Counsel for Petitioner

Christopher McDonough