Tobias v. Arteaga

996 F.3d 571

Art TOBIAS, Plaintiff-Appellee,

v.Michael ARTEAGA; Jeff Cortina; J. Motto; Julian Pere, Defendants-Appellants.

No. 18-56360

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2019

Memorandum Disposition Filed February 25, 2020

Petition for Rehearing Granted and Submission Vacated August 17, 2020

Resubmitted April 20, 2021 Pasadena, California

Filed April 27, 2021

Kevin E. Gilbert (argued), Orbach Huff Suarez & Henderson, Pleasanton, California; Timothy T. Coates, Greines Martin Stein & Richland LLP, Los Angeles, California; for Defendants-Appellants.

Calvin House (argued), Gutierrez Preciado & House LLP, Pasadena, California, for Defendants.

David B. Owens (argued), Anand Swaminathan, and Megan Pierce, Loevy & Loevy, Chicago, Illinois, for Plaintiff-Appellee.

Steven A. Drizin and Laura H. Nirider, Bluhm Legal Clinic, Northwestern Pritzker School of Law, Chicago, Illinois; Seth P. Waxman and Drew Van Denover, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; for Amicus Curiae Center on Wrongful Convictions of Youth.

Clark M. Neily III and Jay R. Schweikert, Cato Institute, Washington, D.C., for Amicus Curiae The Cato Institute.

Before: Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges, and Benjamin H. Settle,^* District Judge.

Partial Concurrence and Partial Dissent by Judge Collins

WARDLAW, Circuit Judge:

Thirteen year old Art Tobias confessed to the murder of Alex Castaneda—a murder he did not commit—after an interrogation in which Los Angeles Police Department (LAPD) Detectives Michael Arteaga, Julian Pere, and Jeff Cortina ignored his request for an attorney, told him that he would look like a "cold-blooded killer" if he did not confess, and suggested that if he were to exercise his right to remain silent he would receive harsher treatment by the court. Tobias was convicted in juvenile court and sentenced to 25 years’ imprisonment. The California Court of Appeal reversed the conviction, concluding that Tobias's confession should have been suppressed by the juvenile court because the detectives failed to respect his unambiguous request for an attorney. All parties now agree that Tobias did not murder Alex Castaneda.

This appeal arises from Tobias's subsequent 42 U.S.C. § 1983 action against the three LAPD Detectives who conducted the interrogation in which Tobias confessed to killing Castaneda. Tobias asserted violations of his Fifth and Fourteenth Amendment rights. The LAPD detectives now appeal the district court's denial of their motion for summary judgment based on qualified immunity for their interrogation tactics. We affirm the denial of qualified immunity on the Fifth Amendment claims that the officers continued to question Tobias after he invoked his right to silence and that they engaged in unconstitutional coercive questioning tactics. We reverse the denial of qualified immunity on Tobias's Fourteenth Amendment substantive due process claim because it was not clearly established that the abusive interrogation techniques used by the officers rose to the level of "abuse of power that shocks the conscience."¹

I.

A.

Alex Castaneda was shot and killed in Los Angeles in the early morning of August 18, 2012. A security camera on a nearby building captured video of the shooter. LAPD Detectives John Motto and Julian Pere were among the officers who responded to the scene, where they learned from witnesses that one of the assailants had said "Fuck 18th Street" and "Salvatrucha," suggesting that the shooting was related to an ongoing feud between the Mara Salvatrucha (MS-13) and 18th Street gangs.

The detectives identified 13-year-old Art Tobias as a suspect after showing the video of the shooting to LAPD gang enforcement officer Marshall Cooley. Cooley had never met Tobias in person, but earlier that evening he had seen photos of him when Tobias's mother, Helen Contreras, came to the police station to report her son missing. Cooley stated that the shooter in the video "uncannily resembled" the photos of Tobias. This identification was seconded by Officer Dora Born, another gang enforcement officer who had never met Tobias but claimed to be familiar with him from photos.

Detectives Motto and Michael Arteaga then went to Berendo Middle School, where Tobias was a student. They asked Daniel East, a Los Angeles Unified School District (LAUSD) police officer assigned to the school, and Roger Negroe, a dean of the school, if they were able to identify the shooter in the video. At first, Officer East remarked that the person in the video looked "large ... to be a middle school student" and said he had "a hard time IDing that person." After the detectives continued to press him, East eventually stated he thought that the person on the video was Art Tobias, but he noted Tobias was "so much smaller in real life" and had a different hairstyle. Dean Negroe could not identify the shooter from the video. However, after leaving the meeting with the detectives, Dean Negroe ran into Tobias, concluded he resembled the shooter in the video, and informed the detectives of his revised opinion. The detectives then arrested Tobias and brought him to the police station.

B.

At the station, Tobias was brought into an interview room with Detectives Pere and Jeff Cortina.² After several background questions, the detectives began asking Tobias whether he was affiliated with a gang. Tobias admitted that his previous school "had [him] on gang file" for MS-13, but explained that he was not actually in the gang. The detectives then asked Tobias a series of questions to determine whether he was sufficiently mature to differentiate right from wrong, pursuant to In re Gladys R. , 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127 (1970). It was not until after these questions, roughly 20 minutes into the interrogation, that Detective Cortina read Tobias his Miranda rights. Tobias stated that he understood his rights.

The detectives then showed Tobias the security camera video of the shooter. Tobias asked, "Who is that?" and Detective Pere responded, "That, my friend, would be you." Tobias immediately and repeatedly denied that he was the person in the video. When the officers told him that the shooting had taken place near downtown Los Angeles around midnight, Tobias explained that he had been miles away in Arcadia with a friend that night and that his friend's mother had dropped him off at home before midnight. The detectives persisted in accusing Tobias of the shooting, falsely telling him, "somebody gave you up."

Then the following exchange took place:

Det. Pere: Okay. Well, I—you know what? We're here to speak to you to get your statement. Now, if your statement is that that's not you, don't worry. We're going to write it down just the way you said. That's not—

Tobias: Could I have an attorney? Because that's not me.

Det. Pere: But—okay. No, don't worry. You'll have the opportunity.

Detective Cortina quickly jumped in with another question and the interrogation continued with no further acknowledgement of Tobias's request for an attorney, even though the detectives had previously told him that he "ha[d] the right to the presence of an attorney before and during any questioning." Tobias adamantly continued to deny he was the shooter.

About 35 minutes into the interview, Detective Pere told Tobias: "[R]ight now, man, you're looking at murder. Looks like you're going to get booked today for murder." Detectives Pere and Cortina then left the room, assuring Tobias that his mother would be in to talk to him shortly.³

But instead of Tobias's mother, Detective Arteaga entered the room two minutes later. Arteaga immediately pulled his chair close to Tobias and began questioning him in an aggressive tone. In an interrogation that lasted roughly 40 minutes, Arteaga lied to Tobias that somebody had given him up as the murderer, cursed at Tobias, told Tobias that by failing to confess he looked like a "cold-blooded killer," and brought up Tobias's "mom" multiple times. Arteaga opened the interview by telling the 13-year-old, "I just talked to your mom right now, okay? She's in there crying her eyes off. She's crying like a baby, bro," and later informed him, "Your mom's gone. She—she left crying." He also told Tobias that his mother had identified him from the video,⁴ calling it "fucked up" and "fucking pitiful" that Tobias was going to "drag [his] mom into this" by forcing her to take the stand to testify against him.

Over the course of this extended interrogation, Arteaga repeatedly told Tobias that the court would "take into consideration" his young age, but that he would lose that goodwill and likely receive a harsher punishment if he continued to "lie" about not being the person on the video. As Arteaga framed it, "[y]ou're 13 years of age. Do you think they're going to throw away the key on you? No. They're going to try to get you some help. ... But we can't help you if you're going to sit here and lie and—and just be a cold-blooded killer." As the interview went on, Arteaga pressed this point harder, insisting, "You're full of shit. And when this case is presented to a district attorney's office, they're going to see you're a cold blooded killer," and, "Okay, but I'm telling you man, we have a lot more evidence than you think, and right now when we take the case to court they're going to think you're a big time gang killer who didn't want to tell the truth, who is down for the hood. It's going to look like you're down—you're so down for the hood that you didn't want to speak. So they might throw the book at you." After Arteaga repeated that Tobias's lack of confession made him look like a "cold blooded killer" nine separate times, Tobias finally confessed.

After securing his confession, the detectives put Tobias in a room alone with his mother. Tobias immediately told her, "I'll be straight with you. I wasn't there. I was with Joshua...