In the Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States BEN CHAVEZ, v. Petitioner, OLIVERIO MARTINEZ, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR THE PETITIONER ALAN E. WISOTSKY JEFFREY HELD LAWRENCE S. ROBBINS* ROY T. ENGLERT, JR. Law Offices of Alan E. Wisotsky KATHRYN S. ZECCA 300 Esplanade Drive Robbins, Russell, Englert, Suite 1500 Orseck & Untereiner LLP Oxnard, CA K Street, N.W. (805) Suite 411 Washington, D.C GARY L. GILLIG (202) City Attorney City of Oxnard 300 West Third Street * Counsel of Record Oxnard, CA (805) Counsel for Petitioner

2 QUESTION PRESENTED Whether petitioner, a police officer, is entitled to qualified immunity in a lawsuit under 42 U.S.C alleging that his interrogation of respondent was unduly coercive, in violation of the Fifth and Fourteenth Amendments, where no statement made by respondent has ever been used against him in a criminal case and the officer s undisputed purpose was to obtain evidence from an individual, shot by police, before that individual s anticipated imminent death.

3 ii RULE 24.1(b) STATEMENT Pursuant to Rule 24.1(b), petitioner Ben Chavez states that there were no parties in the court of appeals who are not parties in this Court. In the trial court, the defendants in addition to Chavez were the City of Oxnard, the Oxnard Police Department, Chief Art Lopez, in his official and individual capacities, Chief Harold Hurtt, in his individual capacity, and Officers Maria Peña, Andrew Salinas, and Ron Zavala, in their official and individual capacities. Defendants Lopez and Hurtt were both dismissed from the case by the trial court before the entry of judgment. See J.A. 3.

4 iii TABLE OF CONTENTS Page QUESTION PRESENTED... i RULE 24.1(b) STATEMENT... ii TABLE OF AUTHORITIES... v OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 STATEMENT... 1 SUMMARY OF ARGUMENT... 7 ARGUMENT PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM BOTH THE FIFTH AND FOURTEENTH AMENDMENT CLAIMS ARISING FROM HIS INTERROGATION OF RESPONDENT 11 A. Petitioner s Interrogation Of Respondent Did Not Violate The Fifth Or Fourteenth Amendment... 11

5 iv 1. Because Respondent s Statements Were Never Used Against Him In A Criminal Case, There Was No Infringement of His Privilege Against Compulsory Self- Incrimination The Interrogation Did Not Violate Respondent s Due Process Rights B. If Respondent Sustained A Constitutional Deprivation At All, The Constitutional Rights At Stake Were Not Clearly Established At The Time Of The Interrogation There Is No Clearly Established Fifth Amendment Right to Be Free From Coercive Questioning There Is No Clearly Established Fourteenth Amendment Right To Be Free From Coercive Questioning, In General Or In The Circumstances Of This Case Mincey v. Arizona Did Not Clearly Establish That All Hospital Interrogations Constitute Fifth Amendment Or Substantive Due Process Violations Or That The Interrogation In This Case Constituted A Violation CONCLUSION... 49

6 Cases: v TABLE OF AUTHORITIES Page(s) Anderson v. Creighton, 483 U.S. 635 (1987)... 6, 37 Ashcraft v. Tennessee, 322 U.S. 143 (1944) Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990) Baxter v. Palmigiano, 425 U.S. 308 (1976) Beecher v. Alabama, 408 U.S. 234 (1972)... 24, 28 Blackburn v. Alabama, 361 U.S. 199 (1960) Blefare v. United States, 362 F.2d 870 (9th Cir. 1966) Bowers v. Hardwick, 478 U.S. 186 (1986) Breithaupt v. Abram, 352 U.S. 342 (1957)... 29, 41 Brown v. Mississippi, 297 U.S. 278 (1936)... passim Brown v. Walker, 161 U.S. 591 (1896)... 7, 20 Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989)... 47, 48 Collins v. City of Harker Heights, 503 U.S. 115 (1992)... passim Colorado v. Connelly, 479 U.S. 157 (1986) Conn v. Gabbert, 526 U.S. 286 (1999)... 11

7 vi TABLE OF AUTHORITIES Continued Page(s) Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.), cert. denied, 506 U.S. 953 (1992)... passim County of Sacramento v. Lewis, 523 U.S. 833 (1998)... passim Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) Culombe v. Connecticut, 367 U.S. 568 (1961) Daniels v. Williams, 474 U.S. 327 (1986) Davis v. North Carolina, 384 U.S. 737 (1966) Dickerson v. United States, 530 U.S. 428 (2000)... 8, 22, 24, 38 Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) Edwards v. Arizona, 451 U.S. 477 (1981) Estelle v. Smith, 451 U.S. 454 (1981) Fisher v. State, 145 Miss. 116, 110 So. 361 (1926) Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996) Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994)... 40, 43 Graham v. Connor, 490 U.S. 386 (1989)... 36

8 vii TABLE OF AUTHORITIES Continued Page(s) Harlow v. Fitzgerald, 457 U.S. 800 (1982)... 5 Haynes v. Washington, 373 U.S. 503 (1963)... 25, 34, 38 Hope v. Pelzer, 122 S. Ct (2002) Hopson v. Fredericksen, 961 F.2d 1374 (8th Cir. 1992) In re Groban, 352 U.S. 330 (1957) In re McDonald, 205 F.3d 606 (3d Cir.), cert. denied, 531 U.S. 822 (2000) Ingraham v. Wright, 430 U.S. 651 (1977) INS v. Lopez-Mendoza, 468 U.S (1984) Jackson v. Denno, 378 U.S. 368 (1964) Johnson v. New Jersey, 384 U.S. 719 (1966) Kastigar v. United States, 406 U.S. 441 (1972).. 15, 16, 18 Ker v. California, 374 U.S. 23 (1963) Lefkowitz v. Cunningham, 431 U.S. 801 (1977) Lefkowitz v. Turley, 414 U.S. 70 (1973)... 13, 17, 18 Leon v. Wainwright, 734 F.2d 770 (11th Cir. 1984) Lynumn v. Illinois, 372 U.S. 528 (1963)... 25

9 viii TABLE OF AUTHORITIES Continued Page(s) Mahoney v. Kesery, 976 F.2d 1054 (7th Cir. 1992) McCoy v. MIT, 950 F.2d 13 (1st Cir. 1991) McKune v. Lile, 122 S. Ct (2002) Medina v. California, 505 U.S. 437 (1992) Miller v. Fenton, 474 U.S. 104 (1985) Mills v. Rogers, 457 U.S. 291 (1982) Mincey v. Arizona, 437 U.S. 385 (1978)... passim Minnesota v. Murphy, 465 U.S. 420 (1984)... 13, 17 Miranda v. Arizona, 384 U.S. 436 (1966)... 19, 30, 41 Moore v. City of East Cleveland, 431 U.S. 494 (1977) Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) Murphy v. Waterfront Comm n of New York Harbor, 378 U.S. 52 (1964) Natural Resources Def. Council v. Nuclear Regulatory Comm n, 216 F.3d 1180 (D.C. Cir. 2000) New Jersey v. Portash, 440 U.S. 450 (1979) New York v. Quarles, 467 U.S. 649 (1984)... 30, 34-35

10 ix TABLE OF AUTHORITIES Continued Page(s) Nichol v. Pullman Standard, Inc., 889 F.2d 115 (7th Cir. 1989) Oregon v. Elstad, 470 U.S. 298 (1985)... 14, 38 Palko v. Connecticut, 302 U.S. 319 (1937) Poe v. Ullman, 367 U.S. 497 (1961) Ponderosa Dairy v. Lyons, 259 F.3d 1148 (9th Cir. 2001) 14 Reck v. Pate, 367 U.S. 433 (1961)... 23, 45 Reno v. Flores, 507 U.S. 292 (1951)... 22, 28, 41 Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997) Rizzo v. Goode, 423 U.S. 362 (1976) Roberts v. United States, 445 U.S. 552 (1980) Robertson v. Plano City, 70 F.3d 21 (5th Cir. 1995) Rochin v. California, 342 U.S. 165 (1951)... 22, 29, 41, 44 Saucier v. Katz, 533 U.S. 194 (2001)... passim Schmerber v. California, 384 U.S. 757 (1966)... passim Schneckloth v. Bustamonte, 412 U.S. 218 (1973) Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)... 14, 15

11 x TABLE OF AUTHORITIES Continued Page(s) Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) Siegert v. Gilley, 500 U.S. 226 (1991) Simmons v. United States, 390 U.S. 377 (1968) Snyder v. Massachusetts, 291 U.S. 97 (1934) Spano v. New York, 360 U.S. 315 (1959) Staacke v. United States Secretary of Labor, 841 F.2d 278 (9th Cir. 1988) Stone v. Powell, 428 U.S. 465 (1976) Stone Container Corp. v. United States, 229 F.3d 1345 (Fed. Cir. 2000), cert. denied, 532 U.S. 971 (2001).. 39 United States v. Baird, 85 F.3d 450 (9th Cir. 1996) United States v. Balsys, 524 U.S. 666 (1998)... 7, United States v. George, 987 F.2d 1428 (9th Cir. 1993)... 47, 48 United States v. Hubbell, 530 U.S. 27 (2000) United States v. Lewis, 833 F.2d 1380 (9th Cir. 1987)... 47, 48 United States v. Martin, 781 F.2d 671 (9th Cir. 1985)... 47, 48

12 xi TABLE OF AUTHORITIES Continued Page(s) United States v. Palomo, 80 F.3d 138 (5th Cir. 1996) United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)... passim United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923) Washington v. Glucksberg, 521 U.S. 702 (1997)... 26, 33 Washington v. Harper, 494 U.S. 210 (1990)... 22, 33 Whitley v. Albers, 475 U.S. 312 (1986)... 32, 43 Wiley v. Doory, 14 F.3d 993 (4th Cir. 1994) Wilkins v. May, 872 F.2d 190 (7th Cir. 1989)... passim Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999) Wilson v. Layne, 526 U.S. 603 (1999)... passim Withrow v. Williams, 507 U.S. 680 (1993) Yanez v. Romero, 619 F.2d 851 (10th Cir. 1980) Youngberg v. Romeo, 457 U.S. 307 (1982) Constitution and Statutes: U.S. CONST. Amend. V...passim

13 xii TABLE OF AUTHORITIES Continued Page(s) U.S. CONST. Amend. XIV... passim 18 U.S.C U.S.C U.S.C. 1254(1) U.S.C , 2, Act of Apr. 30, 1790, 6 Stat Miscellaneous: Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L.J. (forthcoming December 2002) , 18 A. DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE (2002) Mark A. Godsey, Miranda s Final Frontier The International Arena: A Critical Analysis of United States v. Bin Laden, And a Proposal for a New Miranda Exception Abroad, 51 DUKE L.J (2002) W. HAWKINS, PLEAS OF THE CROWN (8th ed. 1824)... 14

14 OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 270 F.3d 852. The order denying rehearing (Pet. App. 31a-32a) is unreported. The district court s opinion granting in part and denying in part respondent s motion for summary adjudication (Pet. App. 15a-30a) is unreported. JURISDICTION The court of appeals judgment was entered on October 30, 2001, and rehearing was denied on December 26 (Pet. App. 1a, 31a). The petition for certiorari was timely filed on March 26, 2002, and granted on June 3. This Court s jurisdiction rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment to the United States Constitution provides in part: No person * * * shall be compelled in any criminal case to be a witness against himself. Section 1 of the Fourteenth Amendment provides in part: No State shall * * * deprive any person of life, liberty, or property without due process of law. 42 U.S.C provides in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * *. STATEMENT This case arises from the aftermath of a tragic struggle between respondent Oliverio Martinez and two police officers who were investigating suspected narcotics activities. In the course of a search and subsequent altercation, respondent apparently took control of a firearm from one of the officers. The second officer fired several shots at respondent, causing him severe injuries. Petitioner Ben Chavez, a patrol supervisor, arrived on the scene thereafter and accompanied respondent to the hospital. There, intermittently over the course of about 45 minutes,

15 2 petitioner questioned Martinez about the officer-involved shooting. None of respondent s statements, however, was ever used against him in a criminal case. Even so, the Ninth Circuit, relying on its previous en banc decision in Cooper v. Dupnik, 963 F.2d 1220, cert. denied, 506 U.S. 953 (1992), held that petitioner s interrogation violated respondent s rights under the Compulsory Self-Incrimination Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment, and that a defense of qualified immunity could not be invoked in respondent s lawsuit under 42 U.S.C On November 28, 1997, police officers Maria Peña and Andrew Salinas were investigating suspected narcotics activity near a vacant lot in a residential area of Oxnard, California. Pet. App. 2a. The officers had previously received information that narcotics were being sold from a shed located on the property. C.A. App While questioning one individual, Salinas and Peña heard a bicycle approaching on the darkened path that traversed the lot. Salinas ordered the rider, respondent Martinez, to stop, dismount, spread his legs, and place his hands behind his head. Respondent complied. Pet. App. 2a-3a. As Salinas approached Martinez to perform a search, respondent began to run, fearing that Salinas would discover a knife that he had concealed in the back of his trousers. C.A. App , 308. A struggle ensued. According to Peña s deposition testimony, respondent reached behind him as if to draw his knife; Peña grabbed the knife and threw it some distance from the combatants. C.A. App At some point in the mêlée, Martinez apparently obtained control of Salinas s handgun. C.A. App. 39, 209. According to the two officers, there was a struggle for control of the weapon, with Martinez pointing the barrel multiple times in the direction of both Salinas and Peña. C.A. App , 211. Salinas, convinced that Martinez was going 1 C.A. App. refers to the Excerpts of Record filed in the court of appeals.

16 3 to kill him (C.A. App. 209), cried out, He s got my gun. Pet. App. 3a. Peña drew her weapon and fired several times. One bullet penetrated respondent s left eye and damaged the optic nerve of his other eye, rendering him blind. Another bullet fractured a vertebra, paralyzing respondent s legs. Three more bullets hit respondent s leg. Ibid. Petitioner Chavez, a patrol supervisor, arrived on the scene minutes later with paramedics. Pet. App. 3a. After speaking with the two officers, Sergeant Chavez accompanied respondent to the hospital. Id. at 3a-4a. There, in the presence of medical personnel, petitioner sought to learn from respondent precisely what had happened in the incident. C.A. App , , 228, 270. The interview lasted only 10 minutes and 7 seconds of actual conversation, spread out over a 45-minute period, with Chavez remaining outside the emergency room for periods of time to permit medical personnel to attend to Martinez. Pet. App. 4a; C.A. App In response to petitioner s questions, respondent acknowledged that he had been shot because he was fighting with the police (J.A. 11); that he had pulled Salinas s gun (J.A. 15; see also J.A. 16); that he had pointed the gun at Salinas (J.A. 16; see also J.A. 17); that he used heroin every day, including that very evening (J.A. 18); and that he had been drinking that day as well (J.A ). Martinez also stated that he was in enormous pain, thought he was dying, and wanted treatment. J.A 20-22; see also J.A Based on his observations of Martinez s condition and respondent s statements, Chavez believed that respondent would die from his injuries. C.A. App. 38, 114, ; J.A , Respondent thereafter filed a complaint under 42 U.S.C alleging that the officer defendants had violated his constitutional rights by stopping him without probable cause (in violation of the Fourth Amendment), using excessive force (also in violation of the Fourth Amendment), and subjecting him to a coercive interrogation while he was receiving medical care (in violation of the Fifth, Eighth, and Fourteenth Amendments). Pet. App. 4a-5a.

17 4 The defendants (including petitioner) asserted a qualified immunity defense, contending that they could not reasonably have known, at the time of the events in question, that their conduct violated clearly established constitutional rights. In that connection, defendants drew particular attention to the purpose of petitioner s interrogation: to preserve the key nonpolice witness s account of events before the individual expires. C.A. App Defendants asserted that a careful reader of the governing case law would not have known that this interrogation, designed to preserve a dying witness s account, would be unconstitutional. C.A. App The district court granted partial summary judgment in respondent s favor, holding that petitioner could not invoke a qualified immunity defense to respondent s Fifth and Fourteenth Amendment challenges to the interrogation. Pet. App. 15a-30a. 2 The court first addressed the question whether a constitutional violation had been established at all. Although respondent had not been prosecuted, nor had his statement been offered into evidence at any criminal trial, the district court held that [t]he test for purpose of a Section 1983 claim under both the Fifth and Fourteenth Amendments was whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect s will was overborne. Id. at 19a. Examining the totality of the circumstances in this case, the district court held that respondent s statement was not voluntarily given, in violation of both the Fifth and Fourteenth Amendments. Id. at 22a-23a. The district court next rejected Chavez s defense that he had not violated any clearly established right. Pet. App. 25a- 29a. The court recognized that [p]ublic officials exercising 2 The district court denied respondent s motion insofar as it sought summary adjudication of respondent s Eighth Amendment challenge to his interrogation and Fourth Amendment challenge to his stop and detention. Pet. App. 23a-25a. No issue under the Fourth or Eighth Amendment was before the court of appeals or is before this Court.

18 5 discretionary authority are entitled to qualified immunity from suit where their actions [do] not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 26a (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (brackets by the district court)). Nevertheless, the court explained, [t]he law against coerced confessions was clearly established at the time of [respondent s] interview, and no reasonable officer would believe that an interview of an individual receiving treatment for life-threatening injuries that resulted in blindness, paralysis, and excruciating pain was constitutionally permissible. Pet. App. 29a. The court noted Chavez s contention that he was not trying to build a criminal case against Martinez when he questioned him, but rather was seeking to preserve a dying witness s account of an officer-involved shooting. Pet. App. 28a-29a; C.A. App The district court dismissed that distinction, however, because Chavez had no knowledge of whether or not a prosecutor would charge [Martinez] if he survived. In any event, the district court added, Chavez was clearly trying to obtain information that could clear the officers of wrong-doing. Pet. App. 29a. 3. The Ninth Circuit affirmed. Pet. App. 1a-14a. The court first held that respondent had stated a prima facie claim that Chavez violated one of his constitutional rights. Id. at 6a (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). With respect to the Fifth Amendment claim, the court ruled that Chavez s coercive, custodial questioning violated [respondent s] substantive Fifth Amendment right against compulsory self-incrimination. Pet. App. 8a. Relying on its own en banc decision in Cooper v. Dupnik, 963 F.2d 1220, cert. denied, 506 U.S. 953 (1992), the Ninth Circuit stated (Pet. App. 8a, 9a) that a Fifth Amendment violation occurs when a police officer coerces self-incriminating statements from a suspect in custody, even if those statements are never used against the suspect in a criminal proceeding. The panel recognize[d] (id. at 10a n.3) what it termed dicta to the contrary in this Court s decision in United States v. Verdugo-Urquidez, 494

19 6 U.S. 259, 264 (1990) ( The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. ) (citation omitted). The Ninth Circuit considered it appropriate, however, to follow [its] own binding precedent rather than Supreme Court dicta. Pet. App. 10a n.3. The court of appeals next reached the same result under the Due Process Clause of the Fourteenth Amendment. Pet. App. 10a-11a. Quoting from Cooper, the court held that coercive behavior of law-enforcement officers in pursuit of a confession is sufficient, without more, to constitute a due process violation. Ibid. Finally, the panel held that the rights in question were clearly established. Pet. App. 11a-14a. The court acknowledged that, to overcome a claim of qualified immunity, [t]he contours of the constitutional right at issue must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 11a (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (emphasis added)). The panel recognized, as well, that such an inquiry necessarily turns on the specific facts of this case. Pet. App. 12a. Nevertheless, the Ninth Circuit concluded that [a] reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings, and who was receiving medical treatment for excruciating, life-threatening injuries that sporadically caused him to lose consciousness, would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect s Fifth and Fourteenth Amendment right to be free from coercive interrogation. Ibid. In that connection, the panel asserted that this Court in Mincey v. Arizona, 437 U.S. 385 (1978), had held a virtually indistinguishable interrogation to be unconstitutional. Pet. App. 12a-14a. Indeed, the panel held, [t]o the extent Sergeant Chavez s conduct differs from that of the officers in Mincey, it is more egregious (Pet. App. 13a)

20 7 notwithstanding petitioner s contention that, unlike Mincey, the interrogation in this case was undertaken to preserve the account of a moribund key witness, not to obtain incriminating statements. C.A. Opening Br. 18, 19. SUMMARY OF ARGUMENT A. In deciding whether a defense of qualified immunity may be overcome, courts must determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, only then should a court ask whether the right allegedly implicated was clearly established at the time of the events in question. County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Respondent s constitutional claims fail at this threshold: Neither the Compulsory Self-Incrimination Clause of the Fifth Amendment, nor the Due Process Clause of the Fourteenth Amendment, provides a basis for respondent s challenge to the interrogation in this case. 1. As this Court explained in United States v. Verdugo- Urquidez, 494 U.S. 259, 264 (1990), [t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. * * * Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. That statement which the court below erroneously disregarded as mere dicta follows naturally from the text of the Compulsory Self-Incrimination Clause, which protects a declarant only from being compelled in any criminal case to be a witness against himself. U.S. CONST. Amend. V (emphasis added). This Court s cases reflect that fundamental limitation: As long ago as Brown v. Walker, 161 U.S. 591 (1896), and as recently as United States v. Balsys, 524 U.S. 666 (1998), the Court has made clear that the Fifth Amendment is not violated merely by coercive questioning or even questioning that elicits otherwise incriminating statements so long as none of the compelled statements is used against the witness in a criminal case. Because none of respondent s statements to Chavez

21 8 has ever been used against him in a criminal case, there was no violation of respondent s Fifth Amendment rights. 2. Nor does coercive questioning, without more, violate the Fourteenth Amendment. This Court has never concluded that an interrogation alone can give rise to a claim under the Fourteenth Amendment. Instead, for the past 70 years, this Court has repeatedly explained that the prohibition against use of coerced confessions is grounded in the right to a fair trial. See Brown v. Mississippi, 297 U.S. 278, (1936); Dickerson v. United States, 530 U.S. 428, 435 n.1 (2000). Thus, the Fourteenth Amendment right that has been discussed in this Court s voluntariness cases, like the Fifth Amendment privilege against compelled self-incrimination, is irrelevant when there has been no use of a compelled statement in a criminal trial. There may well be a substantive due process right to be free of particularly brutal forms of police questioning, regardless of whether the resulting statement is used in a criminal trial. For three independent reasons, however, respondent has failed to assert a sustainable claim under a traditional substantive due process analysis. First, contrary to the Ninth Circuit s conclusion below and in Cooper, 963 F.2d at 1248, there is no right to silence. As the Seventh Circuit has correctly concluded, for purposes of substantive due process analysis [t]he relevant liberty is not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation. Wilkins v. May, 872 F.2d 190, 195 (1989). Second, respondent has not alleged that petitioner intended to injure respondent, as is required to establish a substantive due process claim under County of Sacramento v. Lewis, supra. Third, not only must a high threshold be met before substantive due process analysis applies at all, but also the governmental interests at stake must be weighed against the liberty infringed before it can be concluded that an officer s conduct shocks the conscience. That is true in this as in any other

22 9 category of substantive due process cases, indeed any category of due process cases. Respondent s interest in avoiding Chavez s questioning was outweighed by the competing governmental interests at stake in the exigent circumstances of this case. Chavez had entirely legitimate interests in obtaining respondent s version of the facts before respondent s anticipated imminent death. Chavez engaged in no particularly egregious behavior to aggravate the unpleasantness inherent in trying to obtain information from a person in urgent need of medical attention and thought to be dying. For those reasons, there was clearly no violation of substantive due process. B. In all events, respondent cannot plausibly maintain that the interrogation in this case violated a right under the Fifth or Fourteenth Amendments that was clearly established at the time of the interrogation. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001) (emphasis added). 1. With respect to the Fifth Amendment, all that was clearly established at the time of the interrogation is that coercive questioning, without an actual use of the compelled statements, does not violate the Fifth Amendment. But even if the Ninth Circuit s contrary understanding of the Fifth Amendment is correct, surely that contrary view was not clearly established as of November 28, Rather, seven years before the interrogation in this case, this Court had stated in Verdugo-Urquidez that the Fifth Amendment is not violated unless and until there is an adverse use of a compelled statement at a criminal trial. Petitioner cannot be held liable in damages for taking an action permitted by this Court s case law, simply because a court of appeals later characterizes this Court s statement as dicta. What is more, the basis for the panel s contrary ruling the Ninth Circuit s en banc decision in Cooper had been rejected by every other circuit to have considered the issue. Thus, even if petitioner had consulted a law library while en route to the hospital, it is not clear that

23 10 he reasonably should have discerned the Fifth Amendment standard adopted by the Ninth Circuit in this case. 2. The Ninth Circuit s holding that the Fourteenth Amendment prohibits all coercion of statements, regardless of subsequent use in a criminal trial, is just as wrong as its Fifth Amendment holding. At a minimum, that controversial holding finds no support in this Court s cases and thus cannot be clearly established. Nor was it clearly established that conduct such as that of Chavez violates the Fourteenth Amendment under a shocks the conscience analysis. Given the fact-intensive nature of the test, such a conclusion is highly implausible from the outset. Numerous police invasions of bodily integrity for the purpose of preserving evidence have been held not to shock the conscience, making it at the very least unclear that non-invasive questioning for the same purpose would do so. Cooper, though it did involve non-invasive questioning, depended on highly unusual and distinguishable facts, including the conceded absence of any exigency. Numerous courts of appeals have rejected due process claims involving police questioning less justified and more aggressive than the questioning in this case. No case has ever held that a police officer violated substantive due process in circumstances materially similar to this case. 3. Mincey v. Arizona did not hold that the suspect should have a civil rights claim against his interrogators, but only that his statement could not be used at a criminal trial. It was thus categorically inappropriate to cite Mincey as a decision putting Chavez on notice that his conduct violated substantive due process. In any event, even if Mincey and other admissibility cases are regarded as defining the contours of the substantive due process right, there are important distinctions between Mincey and this case. Most particularly, the non-exigent interrogation of a witness (Mincey) who was not even able to speak is wholly different from the exigent interrogation of an articulate, though severely injured, witness (Martinez). Chavez s effort to obtain a dying declaration from a witness to a police shooting violated no clearly established constitutional right.

24 11 ARGUMENT PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM BOTH THE FIFTH AND FOURTEENTH AMENDMENT CLAIMS ARISING FROM HIS INTERROGATION OF RESPONDENT A. Petitioner s Interrogation Of Respondent Did Not Violate The Fifth Or Fourteenth Amendment The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff s allegations, if true, establish a constitutional violation. Hope v. Pelzer, 122 S. Ct. 2508, 2513 (2002); accord Saucier v. Katz, 533 U.S. 194, 201 (2001); Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999); Siegert v. Gilley, 500 U.S. 226, 232 (1991). Only if respondent has made out a constitutional claim in the first place need the Court consider whether that claim was clearly established at the time of the interrogation. As we show below, neither the Fifth Amendment s Compulsory Self-Incrimination Clause, nor the Fourteenth Amendment s Due Process Clause, was violated by the interrogation in this case. 1. Because Respondent s Statements Were Never Used Against Him In A Criminal Case, There Was No Infringement Of His Privilege Against Compulsory Self-Incrimination a. The Ninth Circuit held that, [e]ven though Martinez s statements were not used against him in a criminal proceeding, Chavez s coercive questioning violated Martinez s Fifth Amendment rights. Pet. App. 9a-10a. In the panel s view, the Fifth Amendment s purpose is to prevent coercive interrogation practices that are destructive of human dignity. Id. at 9a. Accordingly, the court concluded, a Fifth Amendment violation occurs when a police officer coerces self-incriminating statements from a suspect in custody. Pet. App. 8a. The panel based that ruling on the en banc decision in Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992). Cooper proof positive that hard cases make bad law was a Section

25 action against officers of the Tucson Police Department. The officers set out to obtain confessions from anyone they suspected of being the so-called Prime Time Rapist, without regard to Miranda and through interrogation techniques calculated to break the witnesses down. The plaintiff was one such suspect, who despite conclusive evidence that he was not the perpetrator of the rapes was held incommunicado for some 24 hours and subjected to highly aggressive questioning, even after he asked (repeatedly) for counsel. The court of appeals evidently frustrated by a perceived pattern of misconduct by the Tucson Police Department (see id. at 1241 (citing Edwards v. Arizona, 451 U.S. 477 (1981)), and 963 F.2d at 1245 (citing Mincey v. Arizona, 437 U.S. 385 (1978))) held that the plaintiff could press both Fifth and Fourteenth Amendment claims against the police officers. In addressing the Fourteenth Amendment claim, the court of appeals in Cooper asked this central question: Can the coercing by police of a statement from a suspect in custody ripen into a full-blown Constitutional violation only if and when the statement is tendered and used against the declarant? 963 F.2d at We think not, was the court s answer. Ibid. Relying on this Court s decision in Brown v. Mississippi, 297 U.S. 278 (1936), the court of appeals stated that [t]he due process violation caused by coercive behavior of law-enforcement officers in pursuit of a confession is complete with the coercive behavior itself. Id. at The court s Fifth Amendment analysis (id. at ) assumed likewise that a constitutional violation could be complete without use of the statement at trial, but offered no reasoning to support that assumption. Judge Brunetti, joined by Judges Leavy and Alarcón, dissented. 963 F.2d at After canvassing this Court s case law, Judge Brunetti observed that it is the use of coerced statements that constitutes a Fifth Amendment violation. Id. at 1254 (emphasis in the original). Here, the dissent 3 Judge Leavy, joined by Judges Alarcón and Brunetti, also wrote a separate dissent. 963 F.2d at

26 13 explained, Cooper faced no trial and accordingly none of his statements were offered against him. The language of the amendment, then, suggests that there was no violation of the Fifth Amendment. Id. at The dissent also concluded that Cooper s substantive due process rights had not been violated. Id. at b. Judge Brunetti was exactly right in his Cooper dissent: The Ninth Circuit s understanding of the Fifth Amendment cannot be squared either with the text of the Amendment or with this Court s case law. The Compulsory Self-Incrimination Clause provides that [n]o person * * * shall be compelled in any criminal case to be a witness against himself. U.S. CONST. Amend. V (emphasis added). The Clause does not forbid all compulsion, or even such compulsion that elicits potentially incriminating statements. Only if and when an individual is compelled to be a witness against himself in a[] criminal case is there a violation of the Compulsory Self-Incrimination Clause. And that final but crucial step occurs only if the compelled statement is used, either directly or derivatively, in an actual prosecution. True, a person may invoke the Fifth Amendment before use is made of the statement. It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). But while an early invocation of the Fifth Amendment may guard against a compromise of the privilege at a subsequent criminal proceeding, it is not until there is a use of the compelled statement in a criminal case that the Fifth Amendment has actually been breached. As this Court summarized the point in United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990):

27 14 The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. * * * Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. See also Oregon v. Elstad, 470 U.S. 298, (1985) (emphasis added and deleted) ( [t]he Fifth Amendment prohibits use by the prosecution in its case in chief * * * of compelled testimony ); id. at 316 (characterizing a violation of the Fifth Amendment as introducing an inadmissible confession at trial ); United States v. Hubbell, 530 U.S. 27, 41 (2000) (making derivative use of compelled testimony in obtaining the indictment against respondent and in preparing its case for trial constitutes Fifth Amendment violation); Estelle v. Smith, 451 U.S. 454, (1981) (using as evidence against [the defendant] the substance of his disclosures during the pretrial psychiatric examination constitutes Fifth Amendment violation); Culombe v. Connecticut, 367 U.S. 568, 581 (1961) (opinion of Frankfurter, J.) (Fifth Amendment protects witness against being made the deluded instrument of his own conviction ) (quoting 2 W. HAWKINS, PLEAS OF THE CROWN 595 (8th ed. 1824)). The court below recognize[d] this Court s description of the privilege in Verdugo-Urquidez, but disregarded the statement as merely dicta to the contrary. Pet. App. 10a n.3. That is a debatable account even of Verdugo-Urquidez itself; after all, [w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which [lower courts] are bound. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996). The Ninth Circuit has elsewhere defined dictum as a statement in an opinion that is peripheral and that as a result may not have received the full and careful consideration of the court that uttered it. Ponderosa Dairy v. Lyons, 259 F.3d 1148, 1155 (2001), petitions for cert. pending, Nos and That is an odd way to describe a portion of the Verdugo-Urquidez opinion that this Court introduced with the remark we think it

28 15 significant to note (494 U.S. at 264). And even statements that are technically dicta but are an important part of the Court s rationale for the result that it reache[s] are entitled to greater weight. Seminole Tribe, 517 U.S. at 67 (quoting Sheet Metal Workers, v. EEOC, 478 U.S. 421, 490 (1986) (O Connor, J., concurring)). In any event, Verdugo-Urquidez simply summarized the meaning of the Fifth Amendment as elaborated in numerous other decisions of this Court. Those cases have made abundantly clear that the privilege against compulsory self-incrimination is not violated without the actual use of compelled testimony against the witness in a criminal case. The Court s testimonial immunity cases make the point most emphatically. Indeed, the Court in Verdugo-Urquidez cited the leading testimonial immunity case, Kastigar v. United States, 406 U.S. 441 (1972), in support of its description of the metes and bounds of the Fifth Amendment. See 494 U.S. at 264. The question in Kastigar was whether a witness who was compelled to testify before a grand jury under a grant of use immunity pursuant to 18 U.S.C could invoke the privilege against compulsory self-incrimination. The Court held that he could not. [I]mmunity from use and derivative use of compelled testimony, the Court reasoned, is coextensive with the scope of the privilege against self-incrimination. 406 U.S. at 453. Accordingly, the Court explained, use immunity, once conferred on a witness, is sufficient to compel testimony over a claim of privilege. Ibid. The sole concern of the privilege, the Court made clear, is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to * * * criminal acts. Ibid. (emphasis added and internal quotation marks omitted). 4 4 See also Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) ( The Fifth Amendment does not forbid the forcible extraction of information but only the use of information so extracted as evidence in a criminal case otherwise, immunity statutes would be unconstitutional. ); Mark A. Godsey, Miranda s Final Frontier The

29 16 Kastigar confirms that mere coercion, even when it succeeds in eliciting otherwise incriminating statements, does not violate the Fifth Amendment without the actual use of the statements against the witness in a criminal case. Murphy v. Waterfront Comm n of New York Harbor, 378 U.S. 52 (1964) on which Kastigar relied (406 U.S. at ) makes the same point in a slightly different context. In that case, witnesses who had been subpoenaed to testify in certain state proceedings invoked the Fifth Amendment and refused to answer questions, despite the grant of immunity under state law. The witnesses contended that, while the immunity grant might protect them from state prosecution, nothing in the applicable state immunity statutes purported to relieve them of federal prosecution. This Court held that the witnesses could be compelled to answer the Waterfront Commission s questions. The Court explained that, even if the state immunity statutes did not cover federal prosecution, the Fifth Amendment itself ensured that the witnesses would be immune from federal prosecution. This exclusionary rule, the Court stated, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness International Arena: A Critical Analysis of United States v. Bin Laden, And a Proposal for a New Miranda Exception Abroad, 51 DUKE L.J. 1703, 1724 (2002) ( [I]f a law enforcement officer were to use brute force and torture to extract an involuntary confession from a suspect, the officer would not at that time have violated the privilege because the suspect would not yet have testified against himself at trial. * * * This distinction is made clear in the line of federal cases dealing with governmental grants of immunity to witnesses. ); Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L.J., (forthcoming December 2002) (Section I.A.2) ( Immunity doctrine thus demonstrates that the privilege permits compulsion; it only imposes later restrictions on the government when it compels answers. ).

30 17 had claimed his privilege in the absence of a state grant of immunity. 378 U.S. at 79. The coercion in the immunity cases derives from a subpoena backed by the power of contempt, rather than from acts of physical or psychological intimidation. But that is if anything more reason why the immunity cases preclude any argument that the government violates the Fifth Amendment when compelling testimony without using it. After all, as the Court has explained, [t]estimony given in response to a grant of * * * immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant s will; the witness is told to talk or face the government s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. New Jersey v. Portash, 440 U.S. 450, 459 (1979). Time and again, the Court has made the same point: So long as the government makes no use (direct or derivative) of a compelled statement in a criminal case, a witness s Fifth Amendment rights have not been violated. This Court s Fifth Amendment penalty cases (Minnesota v. Murphy, 465 U.S. at 434) illustrate the proposition as well. In each of the socalled penalty cases, the State not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions capable of forcing the selfincrimination which the Amendment forbids. Ibid. (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)). 5 The Court has generally struck down the penalties as violations of the Fifth Amendment. See, e.g., Lefkowitz v. Cunningham, 431 U.S. at (invalidating state law that divested attorney of a state political office for declining to waive Fifth Amendment protections); Lefkowitz v. Turley, 414 U.S. at (invalidating state law that precluded government contractors from secur- 5 See also Clymer, supra, 112 YALE L.J. at (Section I.A.3).

31 18 ing future awards in the event of a refusal to waive Fifth Amendment protections). In each instance, however, the Court emphasized that, so long as the witness is immunized against the use of his statements in a subsequent prosecution, neither compulsion nor penalties would violate the Fifth Amendment: We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such use. Kastigar v. United States, [406 U.S. at 446]. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Lefkowitz v. Turley, 414 U.S. at 84 (emphasis added). The Court has made the same point in many other cases. In Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, (1990), the Court held that a witness could not decline, on Fifth Amendment grounds, to answer questions about the whereabouts of a child, but that the Fifth Amendment was available in the event she was later prosecuted, at which point there may be limitations upon the direct and indirect use of that testimony. See also Baxter v. Palmigiano, 425 U.S. 308, 316 (1976) ( if inmates are compelled in [prison disciplinary] proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered whatever immunity is required to supplant the privilege and may not be required to waive such immunity ) (quoting Lefkowitz v. Turley, 414 U.S. at 85); McKune v. Lile, 122 S. Ct. 2017, 2025 (2002) ( [i]f the State of Kansas offered

32 19 immunity, the self-incrimination privilege would not be implicated ); cf. Simmons v. United States, 390 U.S. 377, (1968) (because a criminal defendant is effectively compelled to testify at a suppression hearing, for fear that not doing so will prejudice his chances to vindicate Fourth Amendment rights, any testimony he gives at such a hearing will be immunized against use at the subsequent criminal trial). The Ninth Circuit s construction of the Fifth Amendment according to which it may be violated by coercive questioning alone simply cannot be squared with these testimonial immunity cases and penalty cases. Nor can the panel s novel ruling be reconciled with this Court s recent decision in United States v. Balsys, 524 U.S. 666 (1998). The witness in that case was subpoenaed by the Office of Special Investigations of the Department of Justice. That Office was investigating whether the witness had participated in Nazi persecution during World War II and was therefore subject to deportation. The witness resisted the subpoena, contending that his answers would subject him to foreign prosecution, allegedly in violation of the Fifth Amendment. This Court agreed with the witness that he was being compelled to testify and that he would thereby become a witness against himself. 524 U.S. at 671. The Court held, however, that prosecution by another country does not constitute a criminal case for Fifth Amendment purposes. Because there was therefore no risk that [the witness s] testimony will be used in a proceeding that is a criminal case (ibid.), the Fifth Amendment could not be invoked. Significantly, the Court rejected the very rationale on which the Ninth Circuit relied in this case. In the court of appeals view, the Fifth Amendment must be broadly construed in order to guard against interrogation practices that are destructive of human dignity. Pet. App. 9a (quoting Miranda v. Arizona, 384 U.S. 436, (1966)). The defendant in Balsys made the same claim: that our respect for the inviolability of the human personality requires that the Fifth Amend-

33 20 ment be construed to encompass fear of foreign prosecution. This Court emphatically disagreed. Were this inviolability rationale correct, the Court reasoned, then a violation of the Fifth Amendment like a violation of the Fourth Amendment would be complete at the moment of illicit intrusion, whatever use may or may not later be made of their fruits. 524 U.S. at The Fifth Amendment tradition, however, offers no such degree of protection. If the Government is ready to provide the requisite use and derivative use immunity, * * * the protection goes no further: no violation of personality is recognized and no claim of privilege will avail. Ibid. In short, the Court stated (quoting Verdugo-Urquidez), the Fifth Amendment is a fundamental trial right of criminal defendants. Id. at 692 n.12. Not until a compelled statement is used against the witness in a (domestic) criminal trial has the Fifth Amendment been violated. Indeed, precisely because the Fifth Amendment privilege is a trial right designed to promote the fairness of criminal trials this Court declined to extend the rule in Stone v. Powell, 428 U.S. 465 (1976), to allegations that a statement was obtained in violation of Miranda. See Withrow v. Williams, 507 U.S. 680 (1993). Stone precludes the raising of Fourth Amendment claims in federal habeas review, recognizing that the exclusionary rule is designed simply to deter future Fourth Amendment violations. 507 U.S. at 686. If, however, a constitutional claim addresses the fairness, and thus the legitimacy, of our adversary process (id. at 688), the rule in Stone will not apply. Unlike the Fourth Amendment, which protects privacy, the Fifth Amendment does not serve some value necessarily divorced from the correct ascertainment of guilt. Withrow, 507 U.S. at 692. Rather, the privilege against compulsory self-incrimination serves to guard against the use of unreliable state- 6 For this proposition, the Court cited the very passage of Verdugo- Urquidez that the Ninth Circuit disregarded as dicta. See 524 U.S. at 692.