No. 01-1444

In the Supreme Court of the United States

__________

B

EN

C

HAVEZ

,

Petitioner

,

v.

O

LIVERIO

M

ARTINEZ

,

Respondent

.

__________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

__________

BRIEF FOR THE PETITIONER

__________

A

LAN

E.

W

ISOTSKY

L

AWRENCE

S.

R

OBBINS

*

J

EFFREY

H

ELD

R

OY

T.

E

NGLERT

,

J

R

.

Law Offices of Alan E. Wisotsky

K

ATHRYN

S.

Z

ECCA

300 Esplanade Drive

Robbins, Russell, Englert,

Suite 1500

Orseck & Untereiner LLP

Oxnard, CA 93036

1801 K Street, N.W.

(805) 278-0920

Suite 411

Washington, D.C. 20006

G

ARY

L.

G

ILLIG

(202) 775-4500

City Attorney

City of Oxnard

300 West Third Street

*

Counsel of Record

Oxnard, CA 93030

(805) 385-7483

Counsel for Petitioner

QUESTION PRESENTED

Whether petitioner, a police officer, is entitled to qualified

immunity in a lawsuit under 42 U.S.C. § 1983 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 indi-

vidual's anticipated imminent death.

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.

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

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 . . . . . . . . . . . . . . . . . . . . . . . . 11

2. The Interrogation Did Not Violate Respon-

dent's Due Process Rights . . . . . . . . . . . . . . 21

B. If Respondent Sustained A Constitutional Depri-

vation At All, The Constitutional Rights At Stake

Were Not "Clearly Established" At The Time Of

The Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . 37

1. There Is No "Clearly Established" Fifth

Amendment Right to Be Free From Coercive

Questioning . . . . . . . . . . . . . . . . . . . . . . . . . 38

2. There Is No "Clearly Established" Fourteenth

Amendment Right To Be Free From Coer-

cive Questioning, In General Or In The

Circumstances Of This Case . . . . . . . . . . . . 41

3.

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 . . . . . 45

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

v

TABLE OF AUTHORITIES

Page(s)

Cases:

Anderson

v.

Creighton

, 483 U.S. 635 (1987) . . . . . . . . 6, 37

Ashcraft

v.

Tennessee

, 322 U.S. 143 (1944) . . . . . . . . . . . 25

Baltimore City Department of Social Services

v.

Bouknight

, 493 U.S. 549 (1990) . . . . . . . . . . . . . . . . . 18

Baxter

v.

Palmigiano

, 425 U.S. 308 (1976) . . . . . . . . . . . 18

Beecher

v.

Alabama

, 408 U.S. 234 (1972) . . . . . . . . . 24, 28

Blackburn

v.

Alabama

, 361 U.S. 199 (1960) . . . . . . . . . . . 25

Blefare

v.

United States

, 362 F.2d 870 (9th Cir. 1966) . . . 41

Bowers

v.

Hardwick

, 478 U.S. 186 (1986) . . . . . . . . . . . . 30

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) . . . . . . . . . . . 22

Conn

v.

Gabbert

, 526 U.S. 286 (1999) . . . . . . . . . . . . . . . 11

TABLE OF AUTHORITIES­Continued

Page(s)

vi

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) . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Culombe

v.

Connecticut

, 367 U.S. 568 (1961) . . . . . . . . . 14

Daniels

v.

Williams

, 474 U.S. 327 (1986) . . . . . . . . . . . . . 32

Davis

v.

North Carolina

, 384 U.S. 737 (1966) . . . . . . . . . 25

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Edwards

v.

Arizona

, 451 U.S. 477 (1981) . . . . . . . . . . . . . 12

Estelle

v.

Smith

, 451 U.S. 454 (1981) . . . . . . . . . . . . . . . . 14

Fisher

v.

State

, 145 Miss. 116, 110 So. 361 (1926) . . . . . 23

Gaylor

v.

United States

, 74 F.3d 214 (10th Cir. 1996) . . . 39

Giuffre

v.

Bissell

, 31 F.3d 1241 (3d Cir. 1994) . . . . . . 40, 43

Graham

v.

Connor

, 490 U.S. 386 (1989) . . . . . . . . . . . . . 36

TABLE OF AUTHORITIES­Continued

Page(s)

vii

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. 2508 (2002) . . . . . . . . . . . . . . . 11

Hopson

v.

Fredericksen

, 961 F.2d 1374

(8th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44

In re Groban

, 352 U.S. 330 (1957) . . . . . . . . . . . . . . . . . . 34

In re McDonald

, 205 F.3d 606 (3d Cir.),

cert. denied, 531 U.S. 822 (2000) . . . . . . . . . . . . . . . . 39

Ingraham

v.

Wright

, 430 U.S. 651 (1977) . . . . . . . . . . . . . 33

INS

v.

Lopez-Mendoza

, 468 U.S. 1032 (1984) . . . . . . . . . 25

Jackson

v.

Denno

, 378 U.S. 368 (1964) . . . . . . . . . . . . . . 24

Johnson

v.

New Jersey

, 384 U.S. 719 (1966) . . . . . . . . . . 20

Kastigar

v.

United States

, 406 U.S. 441 (1972) . . 15, 16, 18

Ker

v.

California

, 374 U.S. 23 (1963) . . . . . . . . . . . . . . . . 36

Lefkowitz

v.

Cunningham

, 431 U.S. 801 (1977) . . . . . . . . 17

Lefkowitz

v.

Turley

, 414 U.S. 70 (1973) . . . . . . . . 13, 17, 18

Leon

v.

Wainwright

, 734 F.2d 770 (11th Cir. 1984) . . . . . 27

Lynumn

v.

Illinois

, 372 U.S. 528 (1963) . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES­Continued

Page(s)

viii

Mahoney

v.

Kesery

, 976 F.2d 1054 (7th Cir. 1992) . . . . . . 40

McCoy

v.

MIT

, 950 F.2d 13 (1st Cir. 1991) . . . . . . . . . . . 39

McKune

v.

Lile

, 122 S. Ct. 2017 (2002) . . . . . . . . . . . . . . 26

Medina

v.

California

, 505 U.S. 437 (1992) . . . . . . . . . . . . 25

Miller

v.

Fenton

, 474 U.S. 104 (1985) . . . . . . . . . . . . . . . 22

Mills

v.

Rogers

, 457 U.S. 291 (1982) . . . . . . . . . . . . . . . . 21

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) . . . 30

Moran

v.

Clarke

, 296 F.3d 638 (8th Cir. 2002) . . . . . . . . . 35

Murphy

v.

Waterfront Comm'n of New York Harbor

,

378 U.S. 52 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Natural Resources Def. Council

v.

Nuclear Regulatory

Comm'n

, 216 F.3d 1180 (D.C. Cir. 2000) . . . . . . . . . 39

New Jersey

v.

Portash

, 440 U.S. 450 (1979) . . . . . . . . . . . 17

New York

v.

Quarles

, 467 U.S. 649 (1984) . . . . . . . 30, 34-35

TABLE OF AUTHORITIES­Continued

Page(s)

ix

Nichol

v.

Pullman Standard, Inc.

, 889 F.2d 115

(7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Oregon

v.

Elstad

, 470 U.S. 298 (1985) . . . . . . . . . . . . 14, 38

Palko

v.

Connecticut

, 302 U.S. 319 (1937) . . . . . . . . . . . . 30

Poe

v.

Ullman

, 367 U.S. 497 (1961) . . . . . . . . . . . . . . . . . 26

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) . . . . . . . . . 40

Rizzo

v.

Goode

, 423 U.S. 362 (1976) . . . . . . . . . . . . . . . . 35

Roberts

v.

United States

, 445 U.S. 552 (1980) . . . . . . . 30-31

Robertson

v.

Plano City

, 70 F.3d 21 (5th Cir. 1995) . . . . . 44

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) . . . . . . . 34

Seminole Tribe of Florida

v.

Florida

,

517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

TABLE OF AUTHORITIES­Continued

Page(s)

x

Sheet Metal Workers

v.

EEOC

,

478 U.S. 421 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Siegert

v.

Gilley

, 500 U.S. 226 (1991) . . . . . . . . . . . . . . . . 11

Simmons

v.

United States

, 390 U.S. 377 (1968) . . . . . . . . 18

Snyder

v.

Massachusetts

, 291 U.S. 97 (1934) . . . . . . . . . . 23

Spano

v.

New York

, 360 U.S. 315 (1959) . . . . . . . . . . . . . 25

Staacke

v.

United States Secretary of Labor

,

841 F.2d 278 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . 39

Stone

v.

Powell

, 428 U.S. 465 (1976) . . . . . . . . . . . . . . . . 20

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) . . . . . 39

United States

v.

Balsys

, 524 U.S. 666 (1998) . . . . . . 7, 19-20

United States

v.

George

, 987 F.2d 1428

(9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48

United States

v.

Hubbell

, 530 U.S. 27 (2000) . . . . . . . . . . 14

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

TABLE OF AUTHORITIES­Continued

Page(s)

xi

United States

v.

Palomo

, 80 F.3d 138 (5th Cir. 1996) . . 40-41

United States

v.

Verdugo-Urquidez

,

494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . . . . .

passim

United States ex rel. Bilokumsky

v.

Tod

,

263 U.S. 149 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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) . . . . . . . . . . . 40

Wilkins

v.

May

, 872 F.2d 190 (7th Cir. 1989) . . . . . . .

passim

Wilkinson

v.

Russell

, 182 F.3d 89 (2d Cir. 1999) . . . . . . . 40

Wilson

v.

Layne

, 526 U.S. 603 (1999) . . . . . . . . . . . . .

passim

Withrow

v.

Williams

, 507 U.S. 680 (1993) . . . . . . . . . . . . 20

Yanez

v.

Romero

, 619 F.2d 851 (10th Cir. 1980) . . . . . . . 44

Youngberg

v.

Romeo

, 457 U.S. 307 (1982) . . . . . . . . . . . . 33

Constitution and Statutes:

U.S. C

ONST

. Amend. V . . . . . . . . . . . . . . . . . . . . . . . .

passim

TABLE OF AUTHORITIES­Continued

Page(s)

xii

U.S. C

ONST

. Amend. XIV . . . . . . . . . . . . . . . . . . . . . .

passim

18 U.S.C. § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 6002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 11-12

Act of Apr. 30, 1790, § 6 Stat. 113 . . . . . . . . . . . . . . . . . . 31

Miscellaneous:

Steven D. Clymer,

Are Police Free to Disregard

Miranda?,

112 Y

ALE

L.J. ___

(forthcoming December 2002). . . . . . . . . . . . . . . . 16, 18

A.

D

ERSHOWITZ

,

W

HY

T

ERRORISM

W

ORKS

:

U

NDERSTANDING THE

T

HREAT

,

R

ESPONDING

TO THE

C

HALLENGE

(2002) . . . . . . . . . . . . . . . . . . . . . 27

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 D

UKE

L.J. 1703

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

2 W.

H

AWKINS

,

P

LEAS OF THE

C

ROWN

(8th ed. 1824) . . . . 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. § 1983 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,

2

1

"C.A. App." refers to the Excerpts of Record filed in the court of

appeals.

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. § 1983.

1. 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. 171.

1

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. 38-39, 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. 180-181. 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. 184-85, 211. Salinas, convinced that Martinez was going

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. 98-99, 111-113,

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. 451.

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. 17-18). Martinez also stated that

he was in enormous pain, thought he was dying, and wanted

treatment. J.A 20-22; see also J.A. 11-12. Based on his

observations of Martinez's condition and respondent's state-

ments, Chavez believed that respondent would die from his

injuries. C.A. App. 38, 114, 452-453; J.A. 11-12, 20-22.

2. Respondent thereafter filed a complaint under 42

U.S.C. § 1983 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 Amend-

ments). Pet. App. 4a-5a.

4

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.

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 non-

police witness's account of events before the individual

expires." C.A. App. 445. 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. 447-448.

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 Four-

teenth Amendment challenges to the interrogation. Pet. App.

15a-30a.

2

The court first addressed the question whether a con-

stitutional violation had been established at all. Although re-

spondent 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, consid-

ering 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

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)). Nev-

ertheless, the court explained, "[t]he law against coerced con-

fessions 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-threaten-

ing injuries that resulted in blindness, paralysis, and excruciat-

ing 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. 447-448. 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 [respon-

dent'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

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 consti-

tutional 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 acknow-

ledged that, to overcome a claim of qualified immunity, "[t]he

contours" of the constitutional right at issue "`must be suffi-

ciently clear that a reasonable official would understand that

what he is doing

violates that right.'"

Id

. at 11a (quoting

Ander-

son

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. Never-

theless, 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 excruci-

ating, life-threatening injuries that sporadically caused him to

lose consciousness, would have known that persistent interroga-

tion 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) ­

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 alleg-

edly 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 ulti-

mately 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.

C

ONST

. Amend. V (em-

phasis added).

This Court's cases reflect that fundamental limitation: As

long ago as

Brown

v.

Walker

, 161 U.S. 591 (1896), and as re-

cently 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 crim-

inal case. Because none of respondent's statements to Chavez

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, 285-287 (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, regard-

less 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 substan-

tive 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 con-

cluded, 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 sub-

stantive due process analysis applies at all, but also the govern-

mental 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

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 gov-

ernmental 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 coer-

cive 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 Amend-

ment is correct, surely that contrary view was not "clearly

established" as of November 28, 1997. 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 state-

ment 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

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 pro-

cess. In any event, even if

Mincey

and other admissibility cases

are regarded as defining the contours of the substantive due pro-

cess 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.

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 Amend-

ment's Compulsory Self-Incrimination Clause, nor the Four-

teenth 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 Compul-

sory 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-incrim-

inating 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

12

3

Judge Leavy, joined by Judges Alarcón and Brunetti, also wrote a

separate dissent. 963 F.2d at 1256-1258.

1983 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 co-

ercing 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 1244. "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 viola-

tion caused by coercive behavior of law-enforcement officers

in pursuit of a confession is complete with the coercive be-

havior itself."

Id

. at 1244-1245. The court's Fifth Amendment

analysis (

id

. at 1238-1244) assumed likewise that a constitu-

tional 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 1253-1256.

3

After canvassing this

Court's case law, Judge Brunetti observed that "it is the

use

of

coerced statements that constitutes a Fifth Amendment viola-

tion."

Id

. at 1254 (emphasis in the original). Here, the dissent

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 1254-1255. The dissent also con-

cluded that Cooper's substantive due process rights had not

been violated.

Id

. at 1255-1256.

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.

C

ONST

. 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):

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, 306-307 (1985) (em-

phasis 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, 464-465 (1981) (using "as evidence against [the

defendant] the substance of his disclosures during the pretrial

psychiatric examination" constitutes Fifth Amendment viola-

tion);

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.

H

AWKINS

,

P

LEAS OF THE

C

ROWN

595 (8th ed. 1824)).

The court below "recognize[d]" this Court's description of

the privilege in

Verdugo-Urquidez

, but disregarded the state-

ment 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. 01-950 and 01-1018. That is an

odd way to describe a portion of the

Verdugo-Urquidez

opinion

that this Court introduced with the remark "we think it

15

4

See also

Wilkins

v.

May

, 872 F.2d 190, 194 (7th Cir. 1989) ("The

Fifth Amendment does not forbid the forcible extraction of informa-

tion 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

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 abundant-

ly 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 im-

munity 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 im-

munity pursuant to 18 U.S.C. § 6002 could invoke the privilege

against compulsory self-incrimination. The Court held that he

could not. "[I]mmunity from use and derivative use" of com-

pelled 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

16

International Arena: A Critical Analysis of

United States v. Bin

Laden

, And a Proposal for a New

Miranda

Exception Abroad

, 51

D

UKE

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 Y

ALE

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.").

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 455-459) ­ 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 im-

munity 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 Com-

mission'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

17

5

See also Clymer,

supra

, 112 Y

ALE

L.J. at ___ (Section I.A.3).

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 sub-

poena backed by the power of contempt, rather than from acts

of physical or psychological intimidation. But that is if any-

thing

more

reason why the immunity cases preclude any argu-

ment 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 so-

called `penalty' cases, the State not only compelled an indi-

vidual 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 self-

incrimination 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 806-809 (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 82-85 (invalidat-

ing state law that precluded government contractors from secur-

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 recog-

nized 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, 561-562 (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 in-

direct 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 privi-

lege' 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

19

immunity, the self-incrimination privilege would not be

implicated"); cf.

Simmons

v.

United States

, 390 U.S. 377, 393-

394 (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 im-

munity cases and penalty cases. Nor can the panel's novel rul-

ing 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 "com-

pelled" 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 "crim-

inal 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 "`de-

structive of human dignity.'" Pet. App. 9a (quoting

Miranda

v.

Arizona

, 384 U.S. 436, 457-458 (1966)). The defendant in

Balsys

made the same claim: that "`our respect for the inviola-

bility of the human personality'" requires that the Fifth Amend-

20

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.

ment be construed to encompass fear of foreign prosecution.

This Court emphatically disagreed. Were this "inviola-

bility" 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 692.

6

"The Fifth Amendment tradition,

however, offers no such degree of protection. If the Govern-

ment 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 con-

stitutional claim addresses "`the fairness, and thus the legitima-

cy, 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-in-

crimination "serves to guard against `the

use

of unreliable state-

21

ments

at trial

.'"

Ibid

. (quoting

Johnson

v.

New Jersey

, 384 U.S.

719, 730 (1966) (emphasis added)). Thus, because the Fifth

Amendment, including the "prophylactic" rules of

Miranda

,

"safeguards `a fundamental

trial

right'" (

id

. at 691 (quoting

Verdugo-Urquidez

; emphasis in

Withrow

)),

Stone

does not bar

the raising of Fifth Amendment claims in federal habeas review.

This is further proof ­ if any were needed ­ that the

Verdugo-

Urquidez

"dictum" correctly summarizes this Court's entire

self-incrimination jurisprudence and shows that the Constitution

really does mean what it says when it requires that a person be

compelled "in a[] criminal case" to be a "witness" before there

can be any Fifth Amendment violation.

* * * * *

In short, as the Court explained more than 100 years ago in

Brown

v.

Walker

, 161 U.S. 591, 600 (1896), this Court's Fifth

Amendment cases "proceed upon the idea that the prohibition

against [a witness's] being compelled to testify against himself

presupposes a legal detriment to the witness arising from the

exposure." In the absence of such a "detriment" ­ the actual

use

of a compelled statement against the witness in a criminal

case ­ all the coercion in the world will not violate the Compul-

sory Self-Incrimination Clause. The Ninth Circuit's contrary

view cannot be sustained.

2. The Interrogation Did Not Violate Respondent's

Due Process Rights

a. The court of appeals held that "a police officer violates

the Fourteenth Amendment when he obtains a confession by

coercive conduct, regardless of whether the confession is

subsequently used at trial." Pet. App. 10a. That holding is

wrong.

The Due Process Clause of the Fourteenth Amendment

serves as a "protection of the individual against arbitrary action

of government."

County of Sacramento

v.

Lewis

, 523 U.S. at

845. It therefore imposes various limits on a State's right to act.

Collins

v.

City of Harker Heights,

503 U.S. 115, 125-127 &

n.10 (1992). Of particular relevance here are two ways in

22

which the Fourteenth Amendment restricts governmental power

and correspondingly protects individual rights.

First, the Fourteenth Amendment helps to ensure that an

individual will not be deprived of liberty without a fair trial.

Brown

v.

Mississippi

, 297 U.S. 278, 285 (1936). That right

includes a prohibition on the use at a criminal trial of involun-

tary confessions that largely overlaps with the protections of the

Fifth Amendment privilege.

Second, under the doctrine known as "substantive due

process," the Fourteenth Amendment limits the government's

ability to infringe "fundamental liberty interests."

Reno

v.

Flores

, 507 U.S. 292, 301 (1993). That doctrine can include

limitations on police brutality that shocks the conscience,

Rochin

v.

California

, 342 U.S. 165 (1951), perhaps including

limitations on the infliction of physical or mental suffering

through improper questioning techniques. Substantive due

process, however,

permits

an imposition on protected interests

when "`competing state interests * * * outweigh'" them.

Washington

v.

Harper

, 494 U.S. 210, 220 (1990) (quoting

Mills

v.

Rogers

, 457 U.S. 291, 299 (1982)).

The prohibition against the use of an involuntary con-

fession is one of the guarantees inherent in the State's duty to

conduct a fair criminal trial. The Ninth Circuit's error in this

case, and in

Cooper

(see 963 F.2d at 1248), is that the court of

appeals has transformed that protection into an independent

"right to avoid coercive questioning," guaranteed by substantive

due process. The Fourteenth Amendment, however, does not

go so far. True, it prohibits (as does the Fifth Amendment) the

use of an involuntary confession in a criminal case.

Dickerson

v.

United States

, 530 U.S. at 434 ("We have never abandoned

this due process jurisprudence, and thus continue to exclude

confessions that were obtained involuntarily."); see also

Colorado

v.

Connelly

, 479 U.S. 157, 167 (1986) ("coercive

police activity is a necessary predicate to the finding that a

confession is not `voluntary' within the meaning of the Due

Process Clause of the Fourteenth Amendment"). But the Four-

teenth Amendment does not give an individual a freestanding

23

­ let alone an unqualified ­ "substantive right to silence."

Cooper

, 963 F.2d at 1248; see also Pet. App. 11a (referring to

right "to be free from police coercion in pursuit of a

confession").

In the seminal case of

Brown

v.

Mississippi

, this Court ex-

plained that the prohibition on coerced confessions is grounded

in the State's duty to conduct a criminal trial in a manner con-

sistent with traditional notions of justice. The question there

was whether convictions that rested on confessions "extorted

* * * by brutality and violence" were consistent with due pro-

cess. 297 U.S. at 279. The Court began its analysis by noting:

The state is free to regulate the procedure of its courts in

accordance with its own conceptions of policy, unless in so

doing it "offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked

fundamental."

Id

. at 285 (quoting

Snyder

v.

Massachusetts

, 291 U.S. 97, 105

(1934)). Thus, the Court reasoned, "the rack and torture

chamber may not be substituted for the witness stand."

Id

. at

285-286. Nor may "an accused * * * be hurried to conviction

under mob domination."

Id

. at 286. Turning to the admissi-

bility of an involuntary confession, the Court concluded that

"the trial is equally a mere pretense where the state authorities

have contrived a conviction resting solely upon confessions

obtained by violence."

Ibid

. The

use

of the confessions

therefore "was a clear denial of due process."

Ibid

.

The Ninth Circuit in

Cooper

v.

Dupnik

cited

Brown

for just

the opposite of the proposition for which it actually stands.

According to the Ninth Circuit, this Court "in 1936 established

clearly and beyond anyone's misapprehension the proposition

that the Constitution, as a limit on the behavior of government

officials, flatly prohibits coercion in the pursuit of a statement

from a person suspected of a crime." 963 F.2d at 1244. Yet the

passage the court immediately proceeded to quote, supposedly

in support of that statement, says: "`Coercing the supposed

state's criminals into confessions

and using such confessions so

coerced from them against them in trials

has been the curse of

24

all countries.'"

Brown

, 297 U.S. at 287 (emphasis added) (quot-

ing

Fisher

v.

State

, 145 Miss. 116, 134, 110 So. 361, 365

(1926)),

quoted in Cooper

, 963 F.2d at 1244. Inexplicably, the

Ninth Circuit claimed it to be "clear in this passage" that "the

due process violation caused by coercive behavior of law-

enforcement officers in pursuit of a confession is complete with

the coercive behavior itself." 963 F.2d at 1244-1245.

Subsequent decisions of this Court have confirmed that the

constitutional concern is the effect of coerced confessions on

the criminal trial process. The Court has therefore framed the

issue as "whether there has been a violation of the due process

clause of the Fourteenth Amendment

by the introduction

of an

involuntary confession."

Reck

v.

Pate

, 367 U.S. 433, 435 (1961)

(emphasis added). And recently, in

Dickerson

v.

United States

,

the Court discussed its "cases based on

the rule against admit-

ting coerced confessions

." 530 U.S. at 433 (emphasis added);

see

id

. at 435 n.1 (noting that they are based on the right to "a

fair trial free from coerced testimony"). See also

Jackson

v.

Denno

, 378 U.S. 368, 385-386 (1964) ("It is now inescapably

clear that the Fourteenth Amendment forbids

the use

of

involuntary confessions * * *.") (emphasis added);

Beecher

v.

Alabama

, 408 U.S. 234, 237 (1972) ("Under the due process

clause,

no conviction tainted by a confession

so obtained can

stand.") (emphasis added). This Court has therefore described

the defendant's interest

not

as the right to be free of coercive

interrogation, but instead as the "right to be

free of a conviction

based upon a coerced confession."

Jackson

, 378 U.S. at 377

(emphasis added) (invalidating New York procedure for deter-

mining voluntariness of confession because it could not "with-

stand constitutional attack under the Due Process Clause of the

Fourteenth Amendment").

Consistent with these precedents,

every

authority on which

the Ninth Circuit relied both here and in

Cooper

for the proposi-

tion that coercive interrogation alone violated the Fourteenth

Amendment (see Pet. App. 7a-8a, 10a-11a; 963 F.2d at 1244-

1249) addressed the use at a criminal trial of a coerced

confession, not a freestanding right to be free from police

25

7

See

Brown

, 297 U.S. at 279 (discussing whether conviction may

be based on confession "extorted" by "brutality and violence");

Miller

v.

Fenton

, 474 U.S. 104, 109-110 (1985) (discussing admissibility of

involuntary confession);

Mincey

v.

Arizona

, 437 U.S. 385, 396 (1978)

(holding that involuntary statements could not be used against defen-

dant at criminal trial);

Davis

v.

North Carolina

, 384 U.S. 737, 752-

753 (1966) (observing that coerced confessions are "constitutionally

inadmissible in evidence");

Haynes

v.

Washington

, 373 U.S. 503, 515

(1963) (addressing admissibility of involuntary confession);

Lynumn

v.

Illinois

, 372 U.S. 528, 537-538 (1963) (reversing conviction se-

cured by admission of coerced confession as violative of due process);

Blackburn

v.

Alabama

, 361 U.S. 199, 211 (1960) (holding that admis-

sion of involuntary confession violates due process);

Spano

v.

New

York

, 360 U.S. 315, 320-321 (1959) (reversing conviction based on

introduction of coerced confession);

Ashcraft

v.

Tennessee

, 322 U.S.

143, 155 (1944) (reversing conviction based on coerced confession).

questioning.

7

Indeed, in every case but one we have found in

which this Court has addressed the voluntariness of a

confession, the issue was whether that confession could be used

against the defendant at a criminal trial.

The one exception is Justice Brandeis's opinion for a unan-

imous Court in

United States ex rel. Bilokumsky

v.

Tod

, 263

U.S. 149 (1923), which addressed the admissibility of an in-

voluntary confession in a

civil

trial. Far from supporting the

Ninth Circuit's thesis that a due process violation occurs with-

out the introduction of an involuntary confession in a criminal

trial,

Bilokumsky

undermines that thesis by holding that the

Constitution

permits

the introduction of involuntary confessions

in civil trials: "since deportation proceedings are in their nature

civil, the rule excluding involuntary confessions could have no

application."

Id

. at 157; accord

INS

v.

Lopez-Mendoza

, 468

U.S. 1032, 1038-1039 (1984) ("Consistent with the civil nature

of the proceeding, various protections that apply in the context

of a criminal trial do not apply in a deportation proceeding.")

(citing

Bilokumsky

and other cases).

26

Accordingly, this Court's voluntariness cases stand only for

the limited proposition that the Fourteenth Amendment bars the

use at a criminal trial of a confession that is the product of

coercion. They do not, as the Ninth Circuit claimed, hold that

an individual has a right "to be free from police coercion in

pursuit of a confession." Pet. App. 11a.

The constitutional right at issue is a fair-trial right, not a

freedom-from-interrogation right. It is both facile and quite

wrong to think of suppression of evidence as merely a "remedy"

for the constitutional violation (Pet. App. 8a n.2), rather than ­

as required by this Court's decisions ­ to think of admission of

evidence in a criminal case as an indispensable part of the con-

stitutional violation itself.

Nor ­ those precedents aside ­ would it make any sense to

say that the Due Process Clause of the Fourteenth Amendment

forbids all governmental coercion of involuntary statements,

aside from the use to which the compelled statements are put.

Kastigar

v.

United States

and the other testimonial immunity

precedents would become dead letters under such a holding, no

less than they would under a holding that the Fifth Amendment

privilege against compelled self-incrimination operates in this

manner.

If the Fourteenth Amendment forbids all coercion at the

state and local level, then the Fifth Amendment's Due Process

Clause forbids all coercion at the federal level too, and a grant

of testimonial immunity cannot solve the problem. All a federal

witness needs to do to avoid testifying despite a grant of use

immunity, then, is to invoke the Due Process Clause rather than

the Compulsory Self-Incrimination Clause of the Fifth

Amendment. But that cannot possibly be the right analysis,

especially in light of the open-ended and flexible analysis

typical of due process. See

Washington

v.

Glucksberg

, 521

U.S. 702, 720 (1997);

Medina

v.

California

, 505 U.S. 437, 443

(1992);

Poe

v.

Ullman

, 367 U.S. 497, 541 (1961) (Harlan, J.,

dissenting).

One can easily imagine a situation in which a rational con-

ception of the Due Process Clause ­ and one entirely consistent

27

8

But cf.

Leon

v.

Wainwright

, 734 F.2d 770, 773 & nn.5-6 (11th

Cir. 1984) (although police used physical force to learn where a

suspect was hiding the victim of his kidnaping, a subsequent

statement, made after a sufficient "break in the chain of events," was

admissible),

cited in

A.

D

ERSHOWITZ

,

W

HY

T

ERRORISM

W

ORKS

:

U

NDERSTANDING THE

T

HREAT

,

R

ESPONDING TO THE

C

HALLENGE

135,

247 n.3 (2002).

with this Court's precedents ­ would require suppression of a

confession from the criminal trial as "involuntary" and yet

would not condemn, under substantive due process analysis, the

police officers who coerced the confession. Suppose John Doe

suspect has been arrested for kidnaping a small child who

cannot survive without immediate adult intervention. The child

is being hidden somewhere, and time is running out on his life.

A police officer (without physical violence) threatens, cajoles,

and pressures John Doe into confessing to the kidnaping and

disclosing the whereabouts of the child. His will overborne,

John Doe confesses and the child is rescued.

May John Doe's confession be used in his subsequent

criminal trial? No. It is involuntary, and due process will not

permit the trial to be "tainted by a confession so obtained."

Beecher

, 408 U.S. at 237.

8

May John Doe sue the government

under Section 1983 for a Fourteenth Amendment violation?

The answer should also be no. He has no liberty interest in

inhibiting the investigation of a serious crime and, even if he

did, that interest is outweighed by the government's interest in

solving the crime and saving the victim. Nothing in this Court's

due process jurisprudence even remotely suggests that the

child's life must be sacrificed to protect some interest of John

Doe's beyond his right not to have an involuntary confession

used

against him.

b. The foregoing analysis shows that the Ninth Circuit

was misguided in concluding that any action that requires sup-

pression of evidence must necessarily constitute a due process

violation even when there is no attempt to introduce a confes-

sion at a criminal trial. But we need not and do not argue in this

28

case that the Fourteenth Amendment places absolutely

no

limits

on police questioning in the absence of use of the statements

thereby obtained. Rather, this Court's substantive due process

jurisprudence is broad enough to condemn certain police ques-

tioning tactics outright ­ but

only

if they are intentional, brutal,

and unjustified by legitimate state interests. See

Wilkins

v.

May

, 872 F.2d at 195 ("We do not undertake to specify a partic-

ular threshold, a task that may well exceed our powers of articu-

lation. But it is a high threshold, and to cross it Wilkins and

plaintiffs like him must show misconduct that a reasonable per-

son would find so beyond the norm of proper police procedure

as to shock the conscience, and that is calculated to induce not

merely momentary fear or anxiety, but severe mental suffering,

in the plaintiff.").

i. The "`[s]ubstantive due process' analysis must begin

with a careful description of the asserted right."

Flores

, 507

U.S. at 301. See also

County of Sacramento

v.

Lewis

, 523 U.S.

at 841 n.5. It protects only a narrow category of rights: As

Justice Stevens observed for a unanimous Court, "the Court has

always been reluctant to expand the concept of substantive due

process because guideposts for responsible decision making in

this unchartered area are scarce and open-ended."

Collins

, 503

U.S. at 125. In other words, "[t]he doctrine of judicial self-

restraint requires us to exercise the utmost care whenever we

are asked to break new ground in this field."

Ibid

.; accord

Flores

, 507 U.S. at 302. This Court's "cases dealing with

abusive executive action have repeatedly emphasized that only

the most egregious official conduct can be said to be arbitrary

in the constitutional sense, thereby recognizing the point made

in different circumstances by Chief Justice Marshall, that it is

a

constitution

we are expounding."

County of Sacramento

v.

Lewis

, 523 U.S. at 846 (internal quotations and citations omit-

ted, emphasis in original).

What right, then, is respondent claiming was violated by

Chavez's interrogation? There is no evidence that petitioner hit,

beat, or otherwise caused any physical harm to respondent. Nor

is there any evidence that petitioner's conduct exacerbated

29

9

Although respondent alleged in his pleadings that petitioner inter-

fered with his medical treatment, the record establishes otherwise (see,

e.g.

, C.A. App. 90, 115, 271, 272), and both the district court and the

court of appeals recognized that medical personnel treated respondent

throughout Chavez's questioning. Pet. App. 4a, 18a.

10

In a different context, the Court unanimously reiterated in

Collins

v.

Harker Heights

, 503 U.S. at 128, that what matters for purposes of

respondent's injuries, or prolonged his stay in the hospital. To

the contrary, the Ninth Circuit found it undisputed in the record

that emergency personnel treated respondent and that petitioner

ceased his questioning to permit tests and other procedures to

be performed. Pet. App. 4a.

9

Indeed, the record is devoid of any evidence that peti-

tioner's conduct had any tangible effect on respondent other

than eliciting answers to questions. Instead, the right asserted

by petitioner encompasses nothing more than respondent's wish

to be left alone as he suffered from preexisting injuries. As

described by the Ninth Circuit, it is simply the "right to be free

of police coercion" (Pet. App. 11a), or the "right to silence."

Cooper

, 963 F.2d at 1248.

In concluding that such a "right" is one of the categories of

interests protected by the Fourteenth Amendment, the Ninth

Circuit broke new ground. This Court has never held that

police questioning alone ­ whether wanted or not, whether

coercive or not ­ infringes a fundamental liberty interest pro-

tected by the Fourteenth Amendment. And to do so would

extend the reach of the Due Process Clause far beyond anything

this Court has ever considered appropriate.

Although it has been held that an extreme act of physical

violence to a person, such as pumping a suspect's stomach to

obtain evidence, will violate due process if it "shocks the

conscience" (

Rochin

, 342 U.S. at 172), not every police action

that may harm or offend an individual implicates the Fourteenth

Amendment. See

Schmerber

v.

California

, 384 U.S. 757, 760

(1966) (distinguishing

Rochin

);

Breithaupt

v.

Abram

, 352 U.S.

342, 436-437 (1957) (same).

10

Rather, "[t]he relevant liberty is

30

substantive due process is whether the conduct at issue "can properly

be characterized as arbitrary, or conscience shocking, in a constitu-

tional sense."

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 at 195 (emphasis

added).

In

Bowers

v.

Hardwick

, this Court rejected the argument

that the Due Process Clause includes a fundamental right to

engage in homosexual sodomy. 478 U.S. 186, 191 (1986). The

Court noted that, when announcing rights not readily identi-

fiable from the Constitution's text, "the Court has sought to

identify the nature of the rights qualifying for heightened

judicial protection" including only those "that are `implicit in

the concept of ordered liberty' such that `neither liberty nor

justice would exist if [they] were sacrificed.'"

Id

. at 191-192

(quoting

Palko

v.

Connecticut

, 302 U.S. 319, 325, 326 (1937)).

"[F]undamental liberties" comprise only "those liberties that are

`deeply rooted in this Nation's history and tradition.'"

Bowers

,

478 U.S. at 192 (quoting

Moore

v.

City of East Cleveland

, 431

U.S. 494, 503 (1977)).

The "right" to be free of police questioning is not "deeply

rooted in this Nation's history and tradition." Indeed, quite the

opposite is true. "It is an act of responsible citizenship for indi-

viduals to give whatever information they may have to aid in

law enforcement."

Miranda

v.

Arizona

, 384 U.S. at 477-478.

See also

New York

v.

Quarles

, 467 U.S. 649, 665 (1984)

(O'Connor, J., concurring in the judgment in part and dissenting

in part) (describing duty to aid law enforcement as a "deeply

rooted social obligation"). It is therefore permissible to consid-

er, as one factor in sentencing, a defendant's refusal to cooper-

ate with a criminal investigation. "This deeply rooted social

obligation [to report criminal behavior] is not diminished when

the witness to [the] crime is involved in the illicit activities

himself."

Roberts

v.

United States

, 445 U.S. 552, 558 (1980).

"Unless his silence is protected by the privilege against self-

31

11

In this respect, the Ninth Circuit went far beyond even its own

Cooper

v.

Dupnik

precedent, which cited and relied on abundant

evidence of harmful intent by the questioning officers and noted that

they made no claim of exigency to justify their questioning. 963 F.2d

at 1223, 1224, 1225, 1226, 1229, 1232, 1236, 1237, 1238, 1243,

1248, 1249, 1250.

incrimination * * * the criminal defendant no less than any

other citizen is obliged to assist the authorities."

Ibid

. Indeed,

the first Congress of the United States made it a crime for any

person "who, `having knowledge of the actual commission of

[certain felonies,] shall conceal, and not as soon as may be dis-

close and make known the same to [the appropriate] authority."

Ibid. (

quoting Act of Apr. 30, 1790, § 6, 1 Stat. 113) (brackets

in original). See also

id

. at 558 n.5 (discussing modern version

of statute, 18 U.S.C. § 4).

Accordingly, what is deeply rooted in this tradition is

not

the right to be silent in the face of police questioning, but in-

stead the duty to respond to those questions. It would be

anomalous to hold that an individual has a "fundamental right"

under the Fourteenth Amendment to refrain from engaging in

conduct described by this Court as a "deeply rooted social

obligation" of every citizen.

ii. Even if the Ninth Circuit were correct that respondent

had been deprived of a cognizable liberty interest in being free

of police questioning, there is no allegation here that petitioner

acted with the requisite level of intent.

11

In

County of Sacra-

mento

v.

Lewis

, this Court held that there was no Section 1983

claim based on a violation of the Fourteenth Amendment

against an officer involved in a high-speed police chase, which

resulted in the death of a passenger, unless it was shown that the

officer acted with the intent to harm the victim. The Court

rejected the contention that it would be sufficient to show

"deliberate indifference." 523 U.S. at 851.

Contrasting a police chase with prison administration (as to

which the "deliberate indifference" standard does apply), the

Court recognized that "the police on an occasion calling for fast

32

12

Although the complaint alleges that petitioner interfered with

respondent's medical treatment, there is no evidence in the record to

that effect, nor did the Ninth Circuit rely on an interference with

medical treatment as the basis for a due process claim.

13

The Court also briefly noted that an intent "to worsen [a

suspect's] legal plight" might suffice to show a violation of the Four-

teenth Amendment. 523 U.S. at 854. This phrase, it seems, is

explained later in the opinion where the Court stated that the

action have obligations that tend to tug against each other." 523

U.S. at 853. "They are supposed to act decisively and to show

restraint at the same moment, and their decisions have to be

made `in haste, under pressure, and frequently without the

luxury of a second chance.'"

Ibid

. (quoting

Whitley

v.

Albers

,

475 U.S. 312, 320 (1986)). Accordingly, "when unforeseen

circumstances demand an officer's instant judgment, even

precipitate recklessness fails to inch close enough to harmful

purpose to spark the shock that implicates `the large concerns

of the governors and the governed.'"

Ibid

. (quoting

Daniels

v.

Williams

, 474 U.S. 327, 332 (1986)).

Like the officers involved in a high-speed police chase (or

prison guards attempting to quell a riot (see

Whitley

, 475 U.S.

312)), petitioner here was dealing with a fast-moving situation,

in haste, and under pressure. He was questioning the only non-

police witness to an officer-involved shooting, who he thought

(as did the witness) would die, and would do so soon. C.A.

App. 452-453. Yet there is no allegation that petitioner intend-

ed to harm respondent.

The complaint states only that petitioner "with deliberate

indifference interfered with the medical assistance to [respon-

dent]." Am. Cplt. ¶ 13;

12

see also

id

. ¶ 17 (defendants, "with de-

liberate indifference," subjected respondent to cruel and unusual

punishment). The only motive or intent alleged is petitioner's

"motive to extort a statement from [respondent]" (

id

. ¶ 13) and

petitioner's "motive to conspire with and protect" the officers.

Id

. ¶ 17. Under

County of Sacramento

v.

Lewis

, however, the

requisite intent is the intent

to harm the victim

.

13

There is no

33

"officer's instinct was to do his job as a law enforcement officer,

not

to induce [the suspect's] lawlessness

."

Id

. at 855 (emphasis added).

Here, too, Chavez's instinct was to do his duty as a law enforcement

officer to gather evidence (see C.A. App. 452), not to "induce" any

"lawlessness" on the part of respondent, who was of course

incapacitated.

allegation or evidence of such an intent here. Accordingly, peti-

tioner did not have the mental state required to commit a

violation of the Fourteenth Amendment.

iii. There is still a third infirmity (and this one may be the

gravest) with respondent's Fourteenth Amendment claim. In

every substantive due process case, the infringement of a liberty

interest must be balanced against the governmental interest in

engaging in the infringing conduct. "[D]etermining that a

person has a `liberty interest' under the Due Process Clause

does not end the inquiry; whether [the individual's] constitu-

tional rights have been violated must be determined by

balancing his liberty interests against the relevant state

interests."

Cruzan

v.

Director, Missouri Department of Health

,

497 U.S. 261, 279 (1990) (quoting

Youngberg

v.

Romeo

, 457

US. 307, 321 (1982)); see also

Washington

v.

Glucksberg

, 521

U.S. at 767-770 (Souter, J., concurring in the judgment).

For example, although there is indisputably a liberty

interest in bodily integrity (see

Ingraham

v.

Wright

, 430 U.S.

651, 674 & n.14 (1977)), that right cedes to the State's interest

in collecting evidence in certain situations (see

Schmerber

, 384

U.S. at 770) as well as to the State's interest in protecting a

mentally ill prisoner from himself and others. See

Washington

v.

Harper

, 494 U.S. 210, 223-225 (1990) (medicating prisoner

against his will). Because both the district court and the Ninth

Circuit believed that the precedents addressing the use of a

coerced confession in a criminal proceeding dispositively

resolved the Fourteenth Amendment claim (see Pet. App. 10a-

11a, 23a), however, neither court addressed the governmental

interest involved in Chavez's conduct.

34

But the legitimate and compelling state interests in ques-

tioning respondent are readily apparent. Petitioner was investi-

gating an officer-involved shooting. He was attempting to ob-

tain a statement from the only non-police witness to that shoot-

ing ­ the victim ­ who everybody believed was about to die.

Chavez therefore believed (and quite reasonably so) that, if he

did not take respondent's statement immediately, the statement

would be permanently lost.

Of course, there is an "acknowledged need for police ques-

tioning as a tool for the effective enforcement of criminal laws."

Schneckloth

v.

Bustamonte

, 412 U.S. 218, 225 (1973); see also

Haynes

v.

Washington

, 373 U.S. 503, 515 (1963) (same). And

that need sometimes overrides a suspect's desire not to be inter-

rogated.

In

In re Groban

, 352 U.S. 330 (1957), the appellants raised

a due process challenge to an Ohio statute governing the

investigation of fires. The statute was designed to allow "the

expeditious and expert ascertainment" of the cause of a fire by

"the chief guardian of a community against the hazards of

fires."

Id

. at 336 (Frankfurter, J., concurring). One aspect of

the statute was to permit the Fire Marshal to conduct private

hearings excluding any person, including lawyers for the

witnesses.

Id

. at 331.

The Court rejected the appellants' claim that the statute

violated the Due Process Clause by depriving them of the

assistance of their counsel. Analogizing the case before it to

grand jury proceedings, where a witness has no right to counsel,

the Court held that "[t]here is no more reason to allow the

presence of counsel before a Fire Marshal trying in the public

interest to determine the cause of a fire." 352 U.S. at 333.

Groban

, then, teaches that the government's interest in inves-

tigating a crime or threat to public safety may override an

individual's interest in not cooperating with that investigation.

So too does

New York

v.

Quarles

,

supra

. There, a police

officer followed a rape suspect into a supermarket and, upon

apprehending the suspect, frisked him and discovered that his

gun holster was empty. The officer asked the suspect where the

35

gun was. The suspect told him, and, at the subsequent criminal

trial, the suspect's statement was excluded because the officer

failed to give

Miranda

warnings before asking for the location

of the gun. This Court held that the evidence was admissible:

[I]f the police are required to recite the familiar

Miranda

warnings before asking the whereabouts of the gun, sus-

pects in Quarles' position might well be deterred from re-

sponding. * * * Officer Kraft needed an answer to his

question not simply to make his case against Quarles but to

insure that further danger to the public did not result from

the concealment of the gun in a public area.

467 U.S. at 657. The Court therefore concluded that "the need

for answers" in that situation "outweigh[ed]" the need for

Miranda

warnings.

Ibid

.

Chavez had every legitimate interest in investigating

whether there had been police misconduct in the shooting of

Martinez. See,

e.g.

,

Driebel

v.

City of Milwaukee

, 298 F.3d

622, 644 (7th Cir. 2002) ("A police officer may be guilty of

committing a battery by using unreasonable force in the

apprehension of a suspect. * * * [W]e are convinced that the

[Police] Department conducted a legally adequate inquiry by

interviewing the victim, Joshua Schmidt, as well as numerous

witnesses * * *.");

Moran

v.

Clarke

, 296 F.3d 638, 647-648

(8th Cir. 2002) (en banc) ("the serious business of weeding out

police abuses" and the officers' interest in accurate factual

determinations are both of constitutional significance). See

generally

Rizzo

v.

Goode

, 423 U.S. 362, 379 (1976)

(recognizing importance of, and lack of warrant for federal

interference with, "the internal procedures of the Philadelphia

police department" to investigate possible police misconduct).

Indeed, Martinez asserts ­ in the claims that remain pending in

the district court ­ that there

was

police misconduct. There is

no reason why the constitutional analysis should entirely

disregard the legitimate interest in gathering evidence that could

support or refute that assertion.

This interest in investigating crime and possible police mis-

conduct is particularly compelling when ­ as was the case here

36

­ there is a serious risk that evidence will be lost. In the Fourth

Amendment context, an otherwise unconstitutional search may

be permissible when there is a risk that evidence will be

destroyed. A blood test may be taken ­ even against the

suspect's will ­ if the "officer * * * might have reasonably

believed that he was confronted with an emergency, in which

the delay necessary to obtain a warrant, under the

circumstances, threatened the destruction of evidence."

Schmerber

, 384 U.S. at 770 (internal quotation omitted). And

the police may conduct a search without a warrant when there

is a risk that the suspect will destroy the evidence of illegality.

See

Ker

v.

California

, 374 U.S. 23, 41-42 (1963); see also

Mincey

, 437 U.S. at 394 (recognizing that risk that evidence

might be lost or destroyed constitutes "exigent circumstances").

Just like the substantive due process component of the

Fourteenth Amendment, the Fourth Amendment requires "a

careful balancing of the nature and quality of the intrusion on

the individual's * * * interests against the countervailing gov-

ernmental interests at stake."

Graham

v.

Connor

, 490 U.S. 386,

396 (1989) (internal quotation marks omitted). If the risk of

destruction of evidence is a sufficient justification to render an

otherwise unreasonable search permissible under the Fourth

Amendment, it logically follows that is a sufficiently compel-

ling reason to outweigh any interest respondent may have had

in resisting police questioning for purposes of the Fourteenth

Amendment. There can be no doubt that petitioner "reasonably

believed" (

Schmerber

, 384 U.S. at 770) that evidence might be

lost: all indications were that respondent would die, and, unless

Chavez took his statement in the emergency room, respondent's

account of what happened would die with him. Accordingly,

respondent's challenge to petitioner's conduct does not allege

a violation of the Fourteenth Amendment.

37

B. If Respondent Sustained A Constitutional Depriva-

tion At All, The Constitutional Rights At Stake

Were Not "Clearly Established" At The Time Of

The Interrogation

If, despite the foregoing analysis, respondent has made out

a Fifth or Fourteenth Amendment violation in this case, "the

next, sequential step is to ask whether the right was clearly es-

tablished."

Saucier

v.

Katz

, 533 U.S. 194, 201 (2001). "This

inquiry, it is vital to note, must be undertaken in light of the

specific context of the case, not as a broad general proposition."

Ibid

. It is simple enough to say, for example, that police be-

havior that "shocks the conscience" violates the Due Process

Clause, but "that is not enough."

Saucier

, 533 U.S. at 202.

Rather, as the Court emphasized in

Anderson

v.

Creighton

, 483

U.S. 635, 640 (1987) (emphasis added), "the right the official

is alleged to have violated must have been `clearly established'

in a more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a reasonable

official would understand that

what he is doing

violates that

right."

"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

, 533 U.S. at 202 (emphasis added);

accord

Wilson

v.

Layne

, 526 U.S. 603, 615 (1999) ("the right

allegedly violated must be defined at the appropriate level of

specificity before a court can determine if it was clearly estab-

lished"). Even if, as a "general proposition," it was clear that

the Fifth or Fourteenth Amendment could

sometimes

be violat-

ed without actual use of a compelled statement or extreme po-

lice brutality, respondent would still have to show that, "in light

of the specific context of the case," petitioner violated a "clearly

established" right.

Saucier

, 533 U.S. at 202.

In the absence of a precedent precisely on point, that hurdle

is especially difficult for a plaintiff to surmount in this context

because no police officer can be expected to predict with perfect

accuracy the after-the-fact judgments of courts. "The line

38

between proper and permissible police conduct and techniques

and methods offensive to due process is, at best, a difficult one

to draw, especially in cases such as this where it is necessary to

make fine judgments as to the effect of psychologically

coercive pressures and inducements on the mind and will of an

accused."

Haynes

v.

Washington

, 373 U.S. 503, 515 (1963).

See also

Dickerson

, 530 U.S. at 444 (quoting

Haynes

).

As we show below, respondent has utterly failed to show

that petitioner's interrogation violated "clearly established"

rights under either the Fifth or Fourteenth Amendments.

1. There Is No "Clearly Established" Fifth Amend-

ment Right to Be Free From Coercive Questioning

For the reasons stated in Section A.1, it was "clearly estab-

lished" at the time of Chavez's interrogation that ­ unless a

compelled statement is actually used against the witness in a

criminal case ­ coercive questioning is

not

a violation of the

Fifth Amendment. But if we are wrong about that, surely the

opposite

proposition was not clearly established at the time. To

the contrary, fully seven years before the interrogation in this

case, this Court had said quite plainly that

"[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."

Verdugo-Urquidez

, 494 U.S. at 264.

True, this may arguably have been "dicta" in

Verdugo-

Urquidez

, as the panel pointed out. But see pages 14-15,

supra

.

That legal nicety, however, is apt to elude police officers who,

like petitioner, are charged with taking quick action in high-

pressure environments. Such officers "are supposed to act deci-

sively and to show restraint at the same moment, and their deci-

sions have to be made `in haste, under pressure, and frequently

without the luxury of a second chance.'"

County of Sacramento

v.

Lewis

, 523 U.S. at 853. "Police officers are ill-equipped to

pinch-hit for counsel" (

Oregon

v.

Elstad

, 470 U.S. at 316) and

cannot be expected to discern whether a statement by this Court

was essential to its holding, much less determine that Supreme

39

14

In this case, petitioner's task would have been all the more

daunting because, had he somehow thought to consult the en banc

decision in

Cooper

, he would have found that only in connection with

the substantive due process claim ­ but not in regard to the Fifth

Amendment ­ did the majority consider whether the constitutional

right "matur[es]" before any use is made of the compelled statement.

Compare 963 F.2d at 1238-1244 (Fifth Amendment discussion) with

id

. at 1244-1250 (Fourteenth Amendment discussion).

15

See,

e.g.

,

Gaylor

v.

United States

, 74 F.3d 214, 217 (10th Cir.

1996) ("this court considers itself bound by Supreme Court dicta al-

most as firmly as by the Court's outright holding, particularly when

the dicta [are] recent and not enfeebled by later statements");

McCoy

v.

MIT

, 950 F.2d 13, 19 (1st Cir. 1991) (same);

Nichol

v.

Pullman

Standard, Inc.

, 889 F.2d 115, 120 n.8 (7th Cir. 1989) ("[t]his Court

should respect considered Supreme Court dicta"). See also

Stone

Container Corp.

v.

United States

, 229 F.3d 1345, 1349-1350 (Fed.

Cir. 2000) ("[a]s a subordinate federal court, we do not share the Su-

preme Court's latitude in disregarding the language in its own prior

opinions"), cert. denied, 532 U.S. 971 (2001);

Natural Resources Def.

Council

v.

Nuclear Regulatory Comm'n

, 216 F.3d 1180, 1189 (D.C.

Cir. 2000) ("carefully considered language of the Supreme Court,

even if technically dictum, generally must be treated as authorita-

tive");

In re McDonald

, 205 F.3d 606, 612 (3d Cir.) ("we should not

idly ignore considered statements the Supreme Court makes as dicta"

since the Court "uses dicta to help control and influence the many

issues it cannot decide because of its limited docket"), cert. denied,

531 U.S. 822 (2000). Indeed, petitioner might have discovered that

the Ninth Circuit itself ­ at least in the absence of "binding" circuit

precedent ­ accords "due deference" (

United States

v.

Baird

, 85 F.3d

450, 453 (9th Cir. 1996)) to Supreme Court dicta and does not "lightly

ignore" such portions of this Court's decisions (

Staacke

v.

United

States Secretary of Labor

, 841 F.2d 278, 281 (9th Cir. 1988)).

Court dicta should be ignored in favor of "binding precedent"

of the court of appeals. Pet. App. 10a n.3.

14

What is more, if petitioner had had an entire law library at

his disposal, he might also have discovered that some circuits

accord significant weight to this Court's dicta.

15

Indeed, Judge

Calabresi has opined that "lucid and unambiguous dicta

40

concerning the existence of a constitutional right can without

more make that right `clearly established.'"

Wilkinson

v.

Russell

, 182 F.3d 89, 112 (2d Cir. 1999) (concurring opinion).

Whether or not that is so, surely lucid and unambiguous dicta

concerning the

non

existence of a constitutional right must

without more

preclude

a holding that the right is "clearly

established."

What is more, had petitioner taken time to Shepardize or

KeyCite the

Cooper

case, he would have discovered that the

Ninth Circuit's ruling had been uniformly rejected by other cir-

cuits. See,

e.g.

,

Wiley

v.

Doory

, 14 F.3d 993, 996 (4th Cir.

1994) (Powell, J., sitting by designation) (sustaining a defense

of qualified immunity in a Section 1983 case founded on a Fifth

Amendment claim and noting that the dissenters in

Cooper

made "persuasive arguments that the privilege against self-

incrimination is not violated until the evidence is admitted in a

criminal case");

Riley

v.

Dorton

, 115 F.3d 1159, 1164 (4th Cir.

1997) (en banc) (rejecting Fifth Amendment claim, noting that,

"[w]hile Fifth Amendment concerns can certainly be implicated

prior to trial, the Supreme Court has declared that a Fifth

Amendment violation occurs only when self-incriminating

statements are introduced at trial, thereby compelling the defen-

dant to `become a witness against himself'");

Giuffre

v.

Bissell

,

31 F.3d 1241, 1256 (3d Cir. 1994) (sustaining a defense of

qualified immunity in Section 1983 case founded on a Fifth

Amendment claim, noting that "[t]he dissenting judges in

Cooper

presented a persuasive argument that the Fifth Amend-

ment privilege against self-incrimination is not violated until

evidence is admitted in a criminal case");

Wilkins

v.

May

, 872

F.2d at 194 ("The Fifth Amendment does not forbid the forcible

extraction of information but only the use of information so ex-

tracted in a criminal case ­ otherwise, immunity statutes would

be unconstitutional.");

Mahoney

v.

Kesery

, 976 F.2d 1054,

1061-1062 (7th Cir. 1992) (characterizing the rule embraced by

the

Cooper

majority as "more capacious" than the Seventh Cir-

cuit had previously articulated);

United States

v.

Palomo

, 80

F.3d 138, 142 (5th Cir. 1996) (where defendant "has not

41

demonstrated that the Government has used any statements

against him in these proceedings," he could not "demonstrate[]

an actionable violation of his right against self-incrimination").

"If judges thus disagree on a constitutional question, it is unfair

to subject police to money damages for picking the losing side

of the controversy."

Wilson

v.

Layne

, 526 U.S. at 603.

2. There Is No "Clearly Established" Fourteenth

Amendment Right To Be Free From Coercive

Questioning, In General Or In The Circumstances

Of This Case

As we showed above, if this Court were to conclude that it

is a violation of the Fourteenth Amendment for a police officer

to conduct an interrogation it would "break new ground"

(

Flores

, 507 U.S. at 302), something this Court is "reluctant" to

do when asked to recognize a new substantive due process

right.

Collins

, 503 U.S. at 125. This Court has never held that

a coerced confession, in and of itself, violates due process; to

the contrary, it has found coerced confessions problematic

only

in the context of their admission into evidence. Against this

backdrop ­ and especially in light of this Court's repeated

statements emphasizing a citizen's duty to cooperate with a

police investigation (see

Miranda

, 384 U.S. at 477-478) ­ it

could not possibly be "clearly established" that the interrogation

of respondent violated the Fourteenth Amendment.

Equally unthinkable is that it was "clearly established" that

Chavez would shock the judicial conscience, and thereby

violate the Fourteenth Amendment, by questioning respondent

in the exigent circumstances of this case. Extreme police

brutality ­ specifically, forcible stomach pumping to extract

evidence ­ has been held to be so arbitrary and egregious that

it "shocks the conscience."

Rochin

v.

California

, 342 U.S. at

172. But even the

Rochin

decision has not been extended to

incidents of bodily injury, including blood tests on an

unconscious suspect (

Breithaupt

, 352 U.S. at 436-437

(distinguishing

Rochin

)) and on a suspect who refused to

consent (

Schmerber

, 384 U.S. at 760 (same)).

42

16

There are other marked differences between

Cooper

and this

case. The interrogation in

Cooper

lasted four hours (963 F.2d at

1243), during which at least one of the interrogating officers

determined that the suspect was in fact innocent.

Id

. at 1231-1232.

And, perhaps particularly relevant for the inquiry into the existence of

a due process right, Cooper

did

allege that he was deprived of a

recognized property interest under the Fourteenth Amendment: he lost

his job and was evicted from his residence. Cooper also established

that he was traumatized by the encounter and later suffered post-

traumatic stress syndrome.

Id

. at 1231.

The Ninth Circuit also has limited the application of

Rochin

, holding that inserting a tube through a suspect's nose

and forcing liquid through the tube into the suspect's stomach,

so as to induce vomiting of narcotics, does not violate the Four-

teenth Amendment.

Blefare

v.

United States

, 362 F.2d 870,

875-876 (9th Cir. 1966). Thus, what

was

"clearly established"

at the time Chavez questioned respondent was that the battery

of a suspect (unless extremely egregious) did not violate the

Fourteenth Amendment. How then could a reasonable official

know that conduct that does not even involve touching a suspect

violates the Fourteenth Amendment under a "shocks the

conscience" test?

The only precedent of which we are aware that could have

alerted petitioner to particular circumstances in which interroga-

tion alone

would

be held to violate the Fourteenth Amendment

is

Cooper

,

supra

. But the coercive behavior referred to in that

case was dramatically different from petitioner's conduct here

in at least two material respects. First, the officers in

Cooper

were acting pursuant to a preconceived plan designed to keep

the suspect off the witness stand at trial (rather than run the risk

that his stationhouse statements would be used against him):

"The primary aggravating circumstance is the Task Force's

purpose of making it difficult, if not impossible, for a charged

suspect to take the stand in his own defense * * *." 963 F.2d at

1249; see also

id

. at 1224. Second, it was conceded that the

officers were not facing exigent circumstances.

Id

. at 1236.

16

43

Petitioner was operating in a fundamentally different en-

vironment than the officers in

Cooper

. Without a doubt, there

were exigent circumstances here; respondent stated that he was

dying and in fact appeared to be mortally wounded, so Chavez

had no choice but to take the statement at the hospital or risk

losing any chance for petitioner's version of events ever to be

recorded. And Chavez could not possibly have been acting

with a motive to keep respondent from testifying, as neither

Chavez nor respondent believed that respondent would survive

his injuries such that he would be able to testify in court.

Cooper

therefore did not give a reasonable officer acting "in

haste [and] under pressure" (

Whitley

v.

Albers

, 475 U.S. at

320), attempting to obtain a dying declaration from a seemingly

moribund witness with no preconceived plan to keep the

witness from testifying, fair notice that his conduct could

violate substantive due process.

Instead, a reasonable officer would have understood that

"

Cooper

was decided under a highly-unusual set of facts."

Giuffre

, 31 F.3d at 1256. Ample precedent at the time of the

events at issue here rejected ­ on facts involving far less justifi-

cation for police questioning than Chavez had, and often far

more aggressive questioning ­ the idea that police statements

to, questions of, or even threats to an individual violated the

Fourteenth Amendment.

Just 15 days before the Ninth Circuit en banc decided

Cooper

, for example, the Eighth Circuit rejected a Section 1983

claim based on a police officer's threat to knock the plaintiff's

teeth out if the plaintiff refused to answer the officer's questions

while he was placed alone in the back seat of a police car. "Al-

though such conduct is not to be condoned, [the officer's]

alleged conduct failed to rise to the level of a brutal and wanton

act of cruelty."

Hopson

v.

Fredericksen

, 961 F.2d 1374, 1379

(8th Cir. 1992) (internal quotations omitted).

A reasonable officer reading

Cooper

and

Hopson

together

would conclude either that

Cooper

turned on its unusual facts,

or that the law in this area was so unsettled that

no

substantive

due process right to be free of coercive police questioning could

44

predictably be applied to any particular factual setting. Either

way, the officer who chose to go ahead with questioning, with

justifications of exigency not present in

Cooper

(or

Hopson

)

and without the aggravating factors of

Cooper

(or

Hopson

),

could hardly be said to be on notice that he was violating

"clearly established" substantive due process rights. See

Wilson

v.

Layne

, 526 U.S. at 603.

In

Yanez

v.

Romero

, 619 F.2d 851, 854-855 (10th Cir.

1980), the Tenth Circuit held that a threat to use a catheter if the

defendant did not "voluntarily" produce a urine sample did not

violate substantive due process. See

id

. at 854 ("[T]he

Rochin

decision pretty much stands by itself and is limited to its

particular facts."). In

Robertson

v.

Plano City

, 70 F.3d 21 (5th

Cir. 1995), two police officers went to a 16-year-old suspect's

home, obtained his confession to a car burglary without giving

him

Miranda

warnings, and admonished him ­ despite the

alleged knowledge that the admonition was inaccurate ­ that he

would face adult felony penalties even though he was a

juvenile.

Id

. at 22. The 16-year-old committed suicide the next

morning.

Ibid

.

Nevertheless, the court held that the complaint did not even

state a claim for violation of substantive due process because

the officers' alleged conduct "did not rise to the level of a

`brutal' and `wanton act of cruelty.'" 70 F.3d at 25 (quoting

Hopson

v.

Fredericksen

, 961 F.2d at 1379). Again, no officer

who studied the case law would conclude that a "clearly estab-

lished" substantive due process right precluded questioning

respondent to obtain what might be his dying declaration.

The Seventh Circuit reassured police officers in 1989 that

in substantive due process analysis it would "

not

* * * suggest

that the federal courts should or will undertake to monitor the

details of police interrogations, and to award damages whenever

the police cross the line that separates coercive from non-

coercive interrogation."

Wilkins

v.

May

, 872 F.2d at 195

(emphasis added). Rather, "calculated" efforts to inflict "severe

mental suffering" would be required before that court would

recognize a substantive due process claim for police questioning

45

17

If

the decision in

Cooper

v.

Dupnik

was at all reconcilable with

the larger body of federal case law, it is only because of the "shock

the conscience" strand of analysis (963 F.2d at 1248-1250) and only

because it

did

involve a calculated effort to inflict severe mental suf-

fering. The present case does not share those characteristics.

not involving the infliction of bodily harm.

Ibid

.

17

Thus, this

Court's admonition in

Wilson

v.

Layne

is as relevant to

respondent's claim under the Fourteenth Amendment as it is to

his claim under the Fifth: when judges cannot agree on the

constitutionality of a police practice, an officer cannot be held

liable for misconstruing the law.

3.

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 Constitut-

ed A Violation

The panel recognized that it was required to assess "the

specific facts of this case" (Pet. App. 12a). In its view, how-

ever, petitioner should have known that he was violating re-

spondent's constitutional rights since his interrogation of

Martinez was, if anything, "more egregious" than the "virtually

indistinguishable" interrogation that led this Court to exclude

the confession in

Mincey

v.

Arizona

, 437 U.S. 385 (1978). But

even if Chavez had had the time to engage in a "color-matching

of cases" (

Reck

v.

Pate

, 367 U.S. 433, 442 (1961)) it is by no

means "clear" that he should have determined that his

interrogation landed on the wrong side of the line.

First and foremost, the holding of

Mincey

was that "state-

ments obtained as these were cannot be

used

in any way against

a defendant

at his trial

." 437 U.S. at 402 (emphasis added). As

we have shown, it is not correct ­ and certainly not "clearly

established" ­ that every precedent requiring exclusion of a

statement from evidence on Fifth or Fourteenth Amendment

grounds

ipso facto

requires the conclusion that the police violat-

ed the Constitution by obtaining such a statement. It is not to

the exclusion cases, but to the civil actions asserting civil rights

46

claims, that a reasonable officer or the Ninth Circuit should

have turned for guidance, and those cases as discussed above do

not support the Ninth Circuit's conclusion. For that reason

alone,

Mincey

should not have been deemed to place Chavez on

notice that his interrogation violated the Constitution.

In any event, even if it were appropriate to read

Mincey

and

other exclusion-of-statement cases as stating absolute standards

for police conduct rather than prerequisites to admissibility, the

Ninth Circuit's conclusion that this case is indistinguishable

from

Mincey

would be wrong. Not only are there distinctions,

but also those very distinctions have played a major role in the

development of post-

Mincey

case law in the lower courts. And

that is as it should be, considering that the relevant branch of

analysis is the "open-ended" doctrine of substantive due process

(

Collins

, 503 U.S. at 125) and the necessarily fact-specific

"shocks the conscience" test.

Martinez was severely injured, just as Mincey was. But

Mincey was subjected to "virtually continuous questioning"

over a four-hour period. 437 U.S. at 396, 401. Here, respon-

dent was questioned intermittently over a 45-minute time frame.

Mincey was only occasionally coherent in his answers to ques-

tions, all of which he had to write down because tubes had been

inserted in his throat and nose, making him unable to speak.

Id

.

at 398-399. To make matters worse, Mincey's "responses"

were especially unreliable because the officer "reconstructed"

the interrogation by filling in the questions after the interview,

with the answers already in front of him.

Id

. at 396 n.11.

Martinez, though horribly injured, was responsive in his

answers, showed no evident signs of coma, and was fully able

to speak, albeit with great pain. In

Mincey

, even medical per-

sonnel had been impressed into urging Mincey to talk to the

police.

Id

at 399. Respondent was questioned only by peti-

tioner, without the involvement of medical attendants, who

were present and treating him throughout the interrogation.

Thus, it cannot truly be said that, compared to

Mincey

, it was

"clearly established" that this interrogation violated substantive

due process or the Fifth Amendment.

47

Court of appeals decisions rendered after

Mincey

(but

before Chavez's investigation) would have given a reasonable

officer even more reason to doubt that questioning respondent

ran afoul of clear law. In at least four cases ­ three of which

expressly distinguish

Mincey

­ courts had held that statements

made by suspects hospitalized for injuries were voluntary (and

therefore admissible in court proceedings).

The Ninth Circuit held that the statements made by a

defendant while he was in an emergency room, in critical

condition, suffering from a drug overdose, and having recently

recovered consciousness were admissible.

United States

v.

George

, 987 F.2d 1428, 1431 (9th Cir. 1993). The court distin-

guished

Mincey

because, among other things, Mincey was un-

able to speak and his answers were sometimes incoherent.

Ibid

.

The Second Circuit concluded that statements made by a hos-

pitalized defendant in significant pain, with "tubes running in

and out of his body" and a "poor command of the English

language," who was dizzy and subject to relentless questioning,

were not the product of coercion.

Campaneria

v.

Reid

, 891

F.2d 1014, 1020 (2d Cir. 1989). That court found

Mincey

inapplicable because, among other things, Mincey was unable

to speak. The Ninth Circuit also concluded that statements made

by a hospitalized patient in pain and under the influence of a

pain-killing drug were admissible.

United States

v.

Martin

, 781

F.2d 671 (9th Cir. 1985). The

Martin

court distinguished

Mincey

, noting that Mincey could not talk, had received various

drugs, and was questioned continuously for four hours. And in

United States

v.

Lewis

, 833 F.2d 1380, 1384-1385 (1987), the

Ninth Circuit held that statements made by a suspect who had

recently returned from surgery, and had just come out of a

general anaesthetic, were voluntary.

On top of those distinctions, no one thought Mincey was

dying and would therefore be unavailable for later questioning.

On the contrary, after an afternoon shooting, and after Mincey's

treatment, Detective Hust of the Tucson Police Department

went to the intensive care unit "[a]t about eight o'clock that

evening" and "continued to question him until almost mid-

48

night." 437 U.S. at 396. Mincey protested "that he could

answer more accurately the next day."

Id

. at 400-401. "Let's

rap tomarrow [

sic

]," Mincey wrote.

Id

. at 401 n.17. That is

hardly a record suggesting exigency, in marked contrast to this

case, in which respondent "told [Chavez] he believed he was

dying eight times." Pet. App. 4a.

Persistent questioning of a seemingly dying witness may

make judges (and many other people) squeamish, but that is not

a constitutional violation, and unquestionably the possibility of

the witness's imminent death creates a legitimate law

enforcement interest in the preservation of evidence that was

not present in

Mince

y. If petitioner indeed violated the

Constitution, it can only be because that legitimate

governmental interest does not outweigh respondent's liberty

interest under a substantive due process analysis ­

not

because

the distinction is unworthy of

any

consideration in the analysis.

Nor should a reasonable officer be expected to forecast that the

courts would completely disregard this major distinction

between Martinez's situation and Mincey's.

How, then, could Chavez have known in late 1997 that his

questioning of respondent in an emergency room in an effort to

preserve evidence was unconstitutionally "coercive," let alone

brutal enough to "shock the conscience"? True, respondent was

in pain. So were the defendants in

George

,

Campaneria

, and

Martin

­ yet

none

of their statements was held to be

involuntary. According to the

Martin

,

Campaneria

, and

George

courts, it was important that Mincey could not speak;

respondent could. Respondent, like the defendant in

George

,

was coherent; the

George

court distinguished

Mincey

on the

ground that Mincey was not. Indeed, respondent was not under

the influence of any medication that could affect his judgment

or render his responses to questions particularly unreliable. The

defendant in

Martin

was under the influence of a pain-killing

drug, and the defendant in

Lewis

had just emerged from

anaesthesia. But the Ninth Circuit ruled that both of their

statements were voluntary. And respondent was questioned in

his native language, Spanish; the defendant in

Campaneria

, on

49

the other hand, had little command of the English language, yet

his statements, too, were held not to be the product of coercion.

In other words, even a "color-matching" of cases, and even

one conducted under the Ninth Circuit's mistaken belief that

admissibility precedents fully determine the constitutional

issues in this case, would not have provided Chavez with clear

guidance as to what constitutes permissible questioning in a

hospital setting in exigent circumstances. It does not matter, for

these purposes, whether a case could be made that respondent's

statements were, in fact, involuntary. The relevant issue is

whether petitioner, in his effort to obtain a dying declaration

from a witness to a police shooting, violated a clearly

established constitutional right. We submit that he did not.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

A

LAN

E.

W

ISOTSKY

L

AWRENCE

S.

R

OBBINS

*

J

EFFREY

H

ELD

R

OY

T.

E

NGLERT

,

J

R

.

Law Offices of Alan E. Wisotsky

K

ATHRYN

S.

Z

ECCA

300 Esplanade Drive

Robbins, Russell, Englert,

Suite 1500

Orseck & Untereiner LLP

Oxnard, CA 93036

1801 K Street, N.W.

(805) 278-0920

Suite 411

Washington, D.C. 20006

G

ARY

L.

G

ILLIG

(202) 775-4500

City Attorney

City of Oxnard

300 West Third Street

*

Counsel of Record

Oxnard, CA 93030

(805) 385-7483

S

EPTEMBER

2002