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When Are Cops Entitled to Qualified Immunity?
In the course of handling hundreds of criminal cases over the years, a frequent topic clients thirst to discuss is a civil lawsuit against the police for various types of police misconduct. While our law firm is not a civil litigation firm, we have seen quite a bit of police practices that suggest due process violations, Fourth Amendment search and seizure issues and Fifth Amendment right to remain silent or requesting an attorney issues.
Summary in 50 Words or Less: Unless the conduct of a police officer demonstrates “an abuse of power that shocks the conscience,” the police officer is entitled to a qualified immunity from civil liability for conduct while a police office, i.e., in coercive questioning of a subject, a search and seizure, injuries to a suspect or third-party, or detaining a person by mistake.
We also understand that it can be disconcerting for a client to hear a criminal defense attorney say, “I don’t handle that. I’m a criminal defense attorney. You need to speak with a civil litigation attorney who specializes in police misconduct.” This type of push back may strike the client as odd at the least.
Therefore, when we read a new published decision on any aspect of civil liability of police, we are naturally curious to read the decision.
The following summary of Art Tobias v. Michael Arteaga, Jeff Cortina, J. Motto and Julian Fere is one such case, a U.S. Ninth Circuit Court of Appeals opinion that was filed on April 27, 2021.
Alex Castaneda was shot and killed in Los Angeles in the early morning of August 18, 2012. A security camera on a nearby building captured the event.
U.S. Ninth Circuit Court of Appeals PasadenaLos Angeles Police Detectives John Motto and Julian Fere were among many officers who responded to the scene and learned from witnesses that one of the suspects said, “Fuck 18th Street” and “Salvatrucha,” suggesting the shooting was related to an ongoing feud between Mara Salvatrucha (MS-13) and 18th Street, both well-known, violent street Hispanic gangs.
One of the officers who reviewed the video of the shooting thought the shooter was 13-year-old Art Tobias, based on the video seeming to match photographs of him his mother brought to the station earlier in the day when reporting her son missing.
Police apparently could not otherwise identify anyone else as the suspect, so they focused on 13-year-old Art Tobias, eventually arresting him at Berendo Middle School a few days later.
Once Tobias was brought to the police station, they asked him if he was affiliated with any gang. Tobias answered that his previous school “had him on gang file” for MS-13, but explained he was not actually in the gang.
Officer Cortina then read Tobias his Miranda rights and Tobias stated he understood his rights and would talk.
Police then showed Tobias the video of the shooting and Tobias responded, “Could I have an attorney? Because that’s not me.” Police then asked Tobias more questions and Tobias adamantly continued to deny he was the shooter.
Police then badgered him for another two hours, telling him nine separate times that his refusal for confess made him look like a “cold-blooded killer.” The police then told him his mom was at the station and she was crying because she understood he did the killing.
Tobias then confessed and the police let his mom into the small room with him. Tobias then told his mom, “I wasn’t there. I was with Joshua” at Joshua’s house. When his mom asked him why he confessed, Tobias said, “They forced me to.
The state tried Tobias in juvenile court. Before trial, his attorney moved to suppress his confession, arguing that the detectives violated Miranda v. Arizona (1966) 384 U.S. 436, by ignoring his request for an attorney and that their conduct during the interrogation was unconstitutionally coercive. See In re Art T. (Cal. Ct. App. 2015) 183 Cal. Rptr. 3d 784, 789-90.
The juvenile court judge denied the motion and the case went to trial, where Tobias was convicted of first-degree murder and two counts of attempted murder. He was sentenced to 25 years in prison.
The California Court of Appeal reversed the trial court’s ruling on the motion to suppress. On remand, the charges were dismissed.
In February 2017, Tobias brought a 42 U.S.C. § 1983 civil rights action in federal district court against many of the officers involved in the investigation, based on several theories of constitutional violations, including of the Fifth Amendment right against self-incrimination based on a coerced confession and violation of the Fourteenth Amendment substantive due process based on the detectives’ conduct during the interrogation.
In 2018, the detectives filed a motion for summary judgment, arguing there was no constitutional violations and that the officers were entitled to qualified immunity. The district court denied the motion and the officers appealed to the U.S. Ninth Circuit Court of Appeals in Pasadena.
The Ninth Circuit issued a ruling that is a “goldmine” for those seeking to understand what is unconstitutional in a police interrogation, but is perhaps most noteworthy for finding that the two-hour interrogation of Tobias was not “psychological torture” and because Tobias failed to show that the police behavior “shocked the conscience," so the police were entitled to qualified immunity.
We believe this ruling itself shocks the conscience and enables police into the future to exercise similar tactics as long as the interrogation is limited to two hours or less.
The citation for the U.S. Ninth Circuit Court of Appeals ruling discussed above is Art Tobias v. Michael Arteaga (9th Cir., 2020) 996 F. 3d 571.
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