Justia Federal District Court Opinions

Michael Cooper was arrested for rape. Pursuant to a preexisting interrogation plan, members of the Tucson Police Department and the Pima County (Arizona) Sheriff's Department ignored Cooper's repeated requests to speak with an attorney, deliberately infringed on his Constitutional right to remain silent, and relentlessly interrogated him in an attempt to extract a confession.

Eventually, the "evidence" against Cooper began to disintegrate. Cooper's interrogators concluded that he was not guilty, and so advised Peter Ronstadt, Chief of the Tucson Police Department. Nonetheless, Ronstadt subsequently told the media that Cooper properly had been identified and arrested. Further investigation fully exonerated Cooper, and he was released. Two months later, the Tucson Police Department publicly cleared him of all charges.

Cooper sued employees of the Pima County Sheriff's Department and the Tucson Police Department, as well as the agencies and municipalities for which they worked. Cooper alleged a violation of 42 U.S.C. § 1983 (1988), and various state laws; he also included a count for defamation. All of the defendants moved for summary judgment based on the doctrine of qualified immunity; the district court denied the motion. On appeal, a panel of this court reversed on all counts except the defamation claim. Cooper v. Dupnik, 924 F.2d 1520 (9th Cir.1991). Cooper successfully petitioned for a rehearing en banc. 933 F.2d 798 (9th Cir.1991).

The district court had jurisdiction under 28 U.S.C. § 1331 (1988). We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 1291 (1988). The district court's denial of qualified immunity is appealable pursuant to Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985).

Our review of the denial of appellants' motion for summary judgment is de novo, and in conducting this review, we contemplate the evidence presented to the district court in the light most favorable to Cooper, the nonmoving party. As to the issue of qualified immunity, we look to see whether the police "acted reasonably under settled law in the circumstances." Hunter v. Bryant, --- U.S. ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam). We note that in the main, the facts on which Cooper's complaint is based are not contested.

We affirm the district court on all counts.

I THE PLAN TO INTERROGATE THE PRIME TIME RAPIST

Beginning in 1984 and extending through September of 1986, residents of Tucson, Arizona were beset by a series of rapes, robberies, and kidnappings. The Tucson Police Department and the Pima County Sheriff's Department believed one person might be responsible for the attacks. That person became known as the "Prime Time Rapist."

To improve their chances of identifying and apprehending the Prime Time Rapist, Tucson Police Chief Peter Ronstadt and Pima County Sheriff Clarence Dupnik joined forces and created the Prime Time Rapist Task Force (the "Task Force"). The Task Force was made up of experienced law-enforcement officers from both agencies: its lead investigators were Detective Karen Wright from the Tucson Police Department, and Sergeant Thomas Taylor and Detective Weaver Barkman, Jr. from the Pima County Sheriff's Department. Barkman and Wright had worked together on the investigation prior to the formation of the Task Force. Sergeant Taylor was their supervisor.

Members of the Task Force planned meticulously for the day they would arrest their first suspect. In July of 1985, Detective Barkman and the other officers developed a strategy for interrogating a Prime Time Rapist suspect. The core of their plan was to ignore the suspect's Constitutional right to remain silent as well as any request he might make to speak with an attorney in connection therewith, to hold the suspect incommunicado, and to pressure and interrogate him until he confessed. Although the officers knew any confession thus generated would not be admissible in evidence in a prosecutor's case in chief, they hoped it would be admissible for purposes of impeachment if the suspect ever went to trial. They expected that the confession would prevent the suspect from testifying he was innocent, and that it would hinder any possible insanity defense.

As a first step, Sergeant Taylor designated Detective Barkman as the Task Force's "primary interrogator," an assignment made known to everyone concerned. Taylor explained his decision as follows:

Q. [to Taylor] Now, why did you decide to designate Weaver Barkman as the interrogator for the task force?

A. My experience with Weaver.

Q. Well, why don't you elaborate on that. Explain what you mean.

A. His ability as an interrogator. I've seen him--I've worked with him. I was confident in his ability to get results.

Q. All right. And are you familiar then with the various techniques that he employs?

A. I don't--yeah. I'd guess I'd say style as opposed to techniques.

....

Q. Okay. And describe his style for me, if you will.

A. I see Weaver's style as being confrontive in terms of offering somebody no hope of denying; that that's not going to work for them, that they've got to come clean, so to speak.

Q. Creating a sense of hopelessness?

A. Yes.

Q. And what you anticipated happening in this situation was that the individual would be cut off from the rest of the world because [he] wouldn't be allowed to contact an attorney and would be interrogated by Deputy Barkman who would be creating this sense of hopelessness; isn't that correct?

A. Correct.

Exhibits--Vol. I, No. 0041.

No doubt exists about the Task Force's intent. In his deposition, Barkman was quite explicit about his scheme to ignore a suspect's substantive right to remain silent while in custody, as well as any request the suspect might make to consult with counsel.

A. [from Barkman] There was--there was an agreement, at least I agreed with myself, that when we identified the Prime Time Rapist, that we would not honor an assertion of counsel or silence.

And, to be perfectly honest, the profile that I had was that he would immediately ask for an attorney. I knew he would, whoever he was.... [W]hen we find the Prime Time Rapist, I am going to continue the interrogation. I was a designated interrogator. And I said, Stoneham, this is my plan. Tom [Taylor], this is my plan. Karen [Wright], you know, whoever wants to listen, this is my plan.

That would--that would occur when there was little, if any, doubt of the guilt of the person we arrested. And this also goes hand in hand with the decision to not honor attorney--the request for an attorney. That is something that should be used only in two situations: Number one, where the--the evidence is overwhelming and the--the--the proof is evident and/or when you think you've got the wrong guy.

Exhibits--Vol. I, No. 0012 (emphasis added).

The point of flouting the requirements, announced by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that a suspect in custody be permitted to consult with an attorney prior to any interrogation, was to ensure such a suspect would not rely on his right to remain silent. In her deposition, Detective Wright explained this aspect of the plan:Q. [to Wright] Okay. And by contacting an attorney, what effect do you think--if you had allowed Mr. Cooper to contact an attorney, what effect do you think that would have had on your ability to obtain--or ability to speak with him, to speak with Mr. Cooper?

A. I would doubt very seriously if he would speak to us at all after he contacted an attorney.

Q. All right. Is it correct, then, that you were concerned that an attorney would tell him to remain silent?

A. Yes.

Q. And thereby preventing you from interrogating Mr. Cooper?

A. Yes.

Exhibits--Vol. I, No. 0028.

With the suspect isolated from the outside world and cut off from his attorney, the plan called for Barkman to overcome the suspect's resistance and extract a confession. Sergeant Taylor had confidence in Barkman's ability to dominate Cooper's will.

Q. [to Taylor] And that's what you expected to happen to [Cooper]; he would be interrogated by Mr. Barkman, his right to an attorney would be denied, and he would be emotionally worn down; isn't that correct?

A. Yes, and that he would confess.

Q. All right. And he would confess.

A. Yes.

Id. (emphasis added).

According to Detective Wright, the Task Force's tactics, which included lying to the suspect about the evidence against him, were designed "to create stress." Exhibits--Vol. I, No. 0008. Barkman was more exact.

Q. [to Barkman] Is the underpinning to this direct positive confrontation, this accusatory interrogation, instilling fear in the interrogated subject?

A. No. It is the first step in creating the illusion of hopelessness, and it might ultimately instill fear. And it's going to cause them stress, but then you start trying to decide what kind of a guy am I interrogating here.

Q. Let me interrupt you a second and ask you whether or not what you're trying to do is to instill hopelessness when you use that technique?

A. Yes.

Q. Okay. And when you decided to go in and interrogate Mr. Cooper following Wright's interrogation, your objective was to use the accusatory technique; is that right?

A. That's correct.

Exhibits--Vol. I, No. 0036.

Members of the Task Force knew their intentional violation of all aspects of Miranda would exclude any confession from the prosecutor's case in chief. However, they hoped the confession would, in Barkman's words, "deprive [the suspect] of the opportunity of forming an insanity defense...." Exhibits--Vol. I, No. 0071. They also hoped the confession would prevent the defendant from testifying at his own trial. Sergeant Taylor stated: "The idea is if they're not going to be able to use the statement, at least it keeps him off the stand." Exhibits--Vol. I, No. 0016. As we discuss later in this opinion, they miscalculated. Because the Task Force's interrogation of Michael Cooper violated his substantive Fifth Amendment right to remain silent, rather than just the Miranda rules designed to safeguard that right, Cooper's statements would not have been admissible for any purpose.

Members of the Task Force knew their plan patently was unconstitutional. Sergeant Taylor was quite candid on the subject. Taylor indicated he "knew that [the plan] violated the law," Exhibits--Vol. I, No. 0028, and he acknowledged that his approach was not condoned by the local prosecuting attorney. Detective Wright also fully appreciated that the Task Force was treading on forbidden ground.

Q. [to Wright] All right. You are aware, are you not, through your training, your experience, the kind of in-service updating that you get from Mr. Kelly and from any other source, that when a suspect requests his counsel or requests to call an attorney, that you are to cease all questions?A. That's correct.

Q. You know that. Okay.

And are you also aware, based upon all the experience and update training you have and so forth, that that request for an attorney must be scrupulously honored; isn't that correct?

A. That's correct.

Q. All right. And are you aware that in denying that request, that you were denying [Cooper] a constitutional right?

A. Was I aware that it was in violation of the U.S. Constitution?

Q. Yes.

A. Is that the question?

I was aware of the fact that, yes, we would be violating his--his rights.

Q. All right. Why were you willing to participate in that violation?

A. As I have stated yesterday, we had had discussions, we referring to Weaver Barkman and myself, in reference to, when the [suspect] was located, that the first thing he would invoke would be the right to an attorney. And we had very, very little evidence in terms of all the cases involved.

Exhibits--Vol. I, No. 0030 (legal objection omitted).

Barkman's thinking was identical.

First of all, traditionally, I have believed and have taught that when an attorney or when someone asserts a right of silence or attorney, cease, scrupulously honor their request, for several different reasons.

But there comes a time when in a major case having major criminal ramifications on public safety you may make a conscious decision to continue the interrogation failing to honor the request.

I have done it. I will in all probability continue to do it. I do not do it lightly.... [M]y feelings are, if you're going to do the interrogation, do it, but report it. Admit it.

Exhibits--Vol. I, No. 0033.

Michael Cooper was the second person interrogated by the Task Force. The first was John David Harrell, who also invoked his rights only to have them ignored. Barkman described in a deposition his legal awareness and his state of mind in implementing the Task Force's plan in connection with Harrell's arrest.

A. [from Barkman] When it came to John David Harrell, he asked for an attorney and we continued--I continued the interrogation that was a given.

Q. During the interrogation he asked for an attorney?

A. I think--you know, before I even got to him he might have asked for an attorney, he may have asked me for an attorney. I don't remember, because I had made a conscious decision prior to the interrogation that I wasn't going to stop, I was going to continue.

....

Q. You said that you made a decision before the interrogation to--you started and then we interrupted, what did you make a decision as to?

A. You know, whether he asked for an attorney or for his mommy or whatever he asked for, if he asked to remain silent, I wasn't going to stop. We decided it was going to be very clear-cut, forget his Miranda Rights, the hell with it.

Q. Who is "we" that decided?

A. I did. I told him if he rescinds, if he revokes, I'm going to continue the plan here, there's just too much at stake.

Q. Who did you tell that to?

A. Everybody that was at the meetings, everybody that was at the scene of the arrest and the people involved in the case.

....

Q. When did you tell this to people?

A. From the first time that I was asked to do the interrogation until I did the interrogation.

Q. And when were you first asked to do the interrogation?

A. It seems like to me it was a month or so prior to the actual interrogation. I don't have any dates or written records of it, it was a conversation in a B level of the County building.

....Q. You told us that you felt it was necessary to obtain a confession from Mr. Harrell in order to successfully prosecute Harrell in the V____ case; isn't that your testimony?

A. Yes.

Q. And yet you knew when you were interrogating Harrell that you had violated his constitutional rights, did you not?

A. I did.

Q. Didn't you also know that any statement you obtained would be suppressed from evidence?

A. For the most part, I figured that's probably what would happen.

Q. What, then, was your purpose in persisting in the interrogation even after you knew his constitutional rights have been violated?

A. That's a multifaceted question. First, the first consideration we have as police officers, and in this case is we have a serial rapist and he's bad, man. If it's John David Harrell, let's just find out if it ain't John David Harrell. Well, the rapist is still out there, we've got to find out, is this guy the East Side Rapist or not. And the way you do that is you go out and you find him and you watch him and you listen to him.

Secondly, once the J____ J____ issue came up, I continued the interrogation, hoping that it would be at least held voluntary to keep him off the stand and to deprive him of the opportunity of forming an insanity defense, and some of the questions went directly to the issue of sanity.

And so those were my motives for violating, trampling on his civil rights and Mirandas, and the bottom line being, what are his damages. I mean, I'm going to violate this American citizen's rights, but look at the totality of the circumstances, the big picture, is it worth it, yeah.

Q. That was your judgment?

A. That's my judgment.

Exhibits--Vol. I, Nos. 0068-0071 (emphasis added).

In short, the Task Force's plan was as purposefully unlawful as it was clever. Led by Barkman, this group of law-enforcement officers made a calculated decision to take the law into their own hands, to "trampl[e] on ... civil rights and Mirandas" because in the "big picture," it was "worth it, yeah."

The Task Force's plan was in step with the overall philosophy of the Pima County Sheriff's Department and the Tucson Police Department. According to Barkman, the Task Force's plan was well known to his supervisors, including Sheriff Dupnik, Major Douglas, and Tucson Assistant Chief of Police Leverenz. Barkman testified in his deposition that he told his supervisors about the plan, that no one voiced any reservations, and that Sergeant Taylor explicitly agreed to it.

When questioned generally about his Department's interrogation policies, Sheriff Dupnik gave the following revealing answers:

Q. [to Dupnik] Suppose a detective is interrogating someone and the person very clearly and unambiguously says I do not want to answer any questions until I have a lawyer present.

A. And then they continue to ask questions?

Q. Yes. Is that a violation of any policy of the Pima County Sheriff's Department?

A. No, sir.

Q. So your office condones that?

A. Yes, sir.

Q. Do you encourage it?

A. It depends on the circumstances. You know, I can see a lot of good reasons why people ask questions beyond the point that they know if the person answers it's not going to be admissible in court.

Q. What would those be?

A. Where we have a responsibility to try to ... save somebody else's life.

Exhibits--Vol. I, No. 0026 (emphasis added).

II THE PLAN AS APPLIED TO COOPER

A COOPER BECOMES A SUSPECT

On May 7, 1986, an identification technician for the Tucson Police Department named Timothy O'Sullivan, whose primary responsibility was to produce color photographs for the police laboratory, decided with no input from the Task Force that Michael Cooper might be a suspect of its investigation. The record shows that O'Sullivan had not done any substantial fingerprint work for at least six (and possibly nine) years. He previously had failed the state's fingerprint examination. Nevertheless, he obtained Cooper's known fingerprints and compared them--hastily and without following proper procedure--with latent fingerprints lifted as evidence from the scene of one of the Prime Time Rapist's attacks, known as No. 470.¹

O'Sullivan concluded he had a match, and he asked the supervisor of the lab, Mr. Scott, to verify his conclusions.² Scott, who also was not a certified latent fingerprint examiner, confirmed O'Sullivan's match; O'Sullivan called Detective Wright and reported the finding.

Wright came to the lab and asked O'Sullivan to check Cooper's known prints against latent prints lifted at the scene of another attack, No. 302. O'Sullivan had some difficulty making a match, but Scott looked at the prints and concluded he had a positive comparison. When Sergeant Taylor was informed of this development, he ordered the immediate arrest of Michael Cooper.

O'Sullivan and Scott were mistaken: the latent prints at crime scenes Nos. 470 and 302 did not belong to Michael Cooper. These mistakes, however, were not discovered until it was too late to avoid some of their consequences.

B COOPER'S INTERROGATION

At approximately 3:00 P.M. of the same day, Barkman and Wright located Cooper in the office of the Pima County Probation Department,³ where Cooper was initially interviewed for twenty to thirty minutes. Barkman's plan to undermine Cooper's right to remain silent was in effect from the moment he and Detective Wright walked through the door. At the outset of the interview, which was tape-recorded, Barkman fully advised Cooper of his Miranda rights, but deliberately turned the advisement into what he hoped Cooper would perceive as a joke. Barkman's psychological ploy was designed to make Cooper ignore the warnings, and begin to talk. Barkman intended to undercut Cooper's Constitutional right not to talk to the Task Force by complying with Miranda 's safeguards in form only, not in spirit or in substance. For example, after he first jokingly asked Cooper if Cooper had a rights card, Barkman said, "I could read you my driver's license if you like."

In his deposition, Barkman was candid about his charade.

Q. [to Barkman] My question is: At one point in time did you joke with [Cooper] about reading, instead of from a rights card, reading him your driver's license?

A. That's correct.

Q. You were kind of joking around with him about that?

A. I wanted him to perceive what I did as a joke, but I wasn't joking. There was a reason for that.

Q. That was a technique?

A. Yes.

Q. That's exactly the point I am trying to make, that you sort of joked around with him about reading him his rights?

A. Sure. He would think I was joking around.Q. Fair enough. You weren't joking, but you adopted this interview technique or approach?

A. That's correct.

Q. All right. And, in fact, you told him that--not to get excited by the fact that you were reading him his rights; isn't that correct?

A. That's correct.

Q. That was part of your technique, as well?

A. Sure.

Q. And in fact you said to him, in terms of reading him his rights, just because you are reading the rights doesn't mean he can't get up and just walk away?

A. That's correct.

Q. You wanted to create this very loose relaxed atmosphere?

A. Yes.

Q. The purpose was so he would talk with you?

A. That's correct.

Q. You didn't want him to think that when you told him he had the right to remain silent, you didn't want him to actually say "I am gonna remain silent"?

A. No, I didn't.

Q. When you told him he had the right to have an attorney appointed for him, you didn't want him to request an attorney?

A. No, I didn't.

Exhibits--Vol. I, No. 0004 (emphasis added). At the end of this interview, during which Cooper denied he was the Prime Time Rapist, he formally was arrested. Cooper then made the first of two unequivocal requests for an attorney, a request which Barkman and Wright expected, and which they deliberately ignored, in conformity with their plan.

Cooper was then transported to the Pima County Sheriff's Department. Detective Wright told Sergeant Taylor of Cooper's request for an attorney, and Taylor ordered the interrogation to begin.

Wright and Barkman both participated in Cooper's interrogation. Wright went first, and Barkman acknowledged that when he took over, he intended to "go in there and hammer him." In accord with the plan, the record amply demonstrates that Cooper was subjected to Barkman's interrogation techniques designed to instill stress, hopelessness, and fear, and to break his resistance.

The following are brief excerpts from the transcript of Cooper's interrogation, which illustrate the intense nature of the proceedings during which Cooper, although innocent, states he is starting to break.

[Detective Weaver Barkman:] Do you know why I became a police officer? I like people, I want to help people. I want to help you, but the evidence speaks for itself. There's alot of reasons, push[ed] far enough Mike, push[ed] far enough all people are capable of any act imaginable, these women were not,

[Michael Cooper:] I want to talk to my lawyer, Nancy Pastero (ph), as soon as possible sir, and I will not give you any more of my honesty because you are not buying it. And you say you got evidence to hold me,

[Barkman:] What do you mean hold, hold, hold, we're not holding, you're arresting, arrest. The handcuffs, the jail ____ or not,--Let's go.

....

[Barkman:] Listen, why don't you look at it realistically,

[Cooper:] Alright.

[Barkman:] from a legal point of view. What you're saying is that you leave your home,

[Cooper:] Right.

[Barkman:] at night,

[Cooper:] Sometimes

[Barkman:] for extended periods of time, hours at a time,

[Cooper:] Okay.

[Barkman:] and no one on God's green earth knows where you are except you.

[Cooper:] That's right. Most people that I've encountered who are strangers that, and people that know me at some of the lakes, that are fishing their also,

[Barkman:] Pull out your hands,

[Cooper:] but when you're[Barkman:] Your hands.

[Cooper:] what,

[Barkman:] Let's see. Do you work with your hands,

[Cooper:] Yes. I have been since last November more so than ever.

[Barkman:] ____ are you good with your hands?

[Cooper:] No ____ a bitch, ... cause I bump into things, and I can't put a screw in right, cut electrical cables,.... Please let me go.

[Barkman:] Mike,

[Cooper:] I'm not your man.

[Barkman:] Mike.

[Cooper:] It just happened Monday again, it's gonna happen again if you don't catch this guy,

[Barkman:] Mike, listen to me.

[Cooper:] You're so convinced, I wish you weren't so convinced.

....

[Barkman:] Okay. You know what it's like to be in jail don't you?

[Cooper:] I can imagine, sir, yes I can imagine. I can imagine what it's like to be away from the people that you feel secure with, that you feel good with, and you didn't do what they're accusing you of, especially

[Barkman:] ... Mike,

....

[Cooper:] can I say something, on why my attitude with you is very defensive. I do apologize ____, but I, I, I am trying to understand the severity--I mean I understand how severe this is and it seems like you folks here at Pima County and the City of Tucson with this, with this fucking guy,

[Barkman:] Yeah.

[Cooper:] have now come into Michael Cooper's life.

[Barkman:] Mike

[Cooper:] And Michael Cooper did not,

[Barkman:] .... it seems ____

[Cooper:] Well, I'm trying to make this clear to me, it, it can't happen.

[Barkman:] It did happen. And you're going to be indicted and you're going to be given a--perhaps a public defender, maybe ____,

[Cooper:] What, you, you're charging me on this.

[Barkman:] Yes. Absolutely.

[Cooper:] You can't do that, it's not me.

....

[Barkman:] and when you start having sex with people,....

[Cooper:] ... you're making me sick, sir.

....

[Barkman:] and.... when you use rubbers ____,

[Cooper:] I don't need to hear this,

[Barkman:] when you use rubbers semen escapes,

[Cooper:] Alright then, let's talk to my wife about rubbers because I can't use rubbers sir.

[Barkman:] Well, you're gonna put your wife on the stand,

[Cooper:] Why not, if it means my family and my ____,

[Barkman:] Good point, why don't you use rubbers?

[Cooper:] Because I can't get an erection with the damn things, never could. That's why she's been pregnant so quickly between the two babies. And every month we worry because she can't take birth controls cause she has a reaction, so that's why I abstain from sex a whole lot, because we don't want her to get pregnant so much, do you understand.

[Barkman:] Well, I sure would like to, I'm sure that __

[Cooper:] ... how many times ____ sit and tell somebody that, you know,

[Barkman:] ....

[Cooper:] Well, I mean, I'm willing to cooperate in any way possible,

[Barkman:] Sure ... at some point and time your gonna have your opportunity to tell that to a jury.

[Cooper:] What time,

[Barkman:] At the trial,

[Cooper:] Are you telling me that there's no other suspects in this case sir?

[Barkman:] I'm telling you, you did it.

[Cooper:] You, you're gonna eat your words someday. You're gonna say, Michael Cooper, ____ I was doing my job, here's exactly what I feel is going to happen between you and I, someday, and I hope it's tonight, you're gonna, I do, I hope it's tonight, you're gonna say, Mike try to understand, you had some problems doing other things, you were, you were a suspect, and I was only doing my job. And I hope we shake hands and that will be it. But sir, your words are upsetting me, and I'm not this person that you're looking for--believe me, believe me. Please believe me, please, it's not me, it's not me.

[Barkman:] Mike, the evidence speaks for itself.

[Cooper:] The evidence somehow it's,

[Barkman:] ....

[Cooper:] ... I have respect for law enforcement, I have respect for your tests, and I'm sitting here knowing that I didn't do these things, and you're telling me you have evidence that it was me,

....

[Barkman:] To the best of my knowledge you have never in your life physically hurt a human being.

[Cooper:] That's not true.

[Barkman:] Perhaps in self-defense.

[Cooper:] No, that's not true.

[Barkman:] Alright, let's talk about that.

[Cooper:] There was times when I've lashed out at my wife verbally. I've slapped my wife several times. But I haven't done that in some years.

[Barkman:] I think you're doing much better, Mike.

[Cooper:] Yeah, I'm breaking down.

[Barkman:] No, no, no. I mean ...

[Cooper:] Cause you want me to admit that I did this and I didn't do these things.

[Barkman:] Mike, do you remember when you were a kid?

[Cooper:] Yeah.

[Barkman:] Your judaica background?

[Cooper:] Right.

[Barkman:] You know, some of my friends are Jewish and they tell me that guilt is built in, to be Jewish is to be guilty. And Mike, I've sat in thousands of rooms on thousands of nights in the last seventeen years and I've seen people talk and tell me things that they would tell to no one else in the world. You know how many criminals I've talked to? Two, maybe three.

....

[Barkman:] You start talking about slapping your wife and lashing out at her verbally. And you come to the point of tears. You know why?

[Cooper:] Cause I'm not proud of that.

[Barkman:] You're scared and you're upset and you feel guilty about it and I ...

[Cooper:] Because you're putting it all together.

Excerpt of Record at Appendices G, E, B (errors in original).

Cooper was reduced to a state of agitation and anxiety marked by tears and sobbing as he persistently maintained his innocence in the face of Barkman's onslaught. He repeated his request for an attorney, stating, "I want to talk to my lawyer, Nancy Pastero (ph), as soon as possible, sir, and I will not give you any more of my honesty because you're not buying it." This request, which contains a statement of unwillingness to talk, as well as a desire to consult an attorney, was disregarded. The record contains evidence indicating he was traumatized by this encounter and later suffered post-traumatic stress syndrome. In the middle of the interrogation, even the hardened veteran Weaver Barkman was, in his own words, "upset," "angry," displaying "a lot of emotion," and "leak[ing] emotionally." Exhibits--Vol. I, Nos. 0049, 0050.

There came a time well into the interrogation, however, when Barkman concluded that Cooper was innocent. Barkman exited the interrogation room and reported his conclusion to Sergeant Taylor. When he did so, the scene (which we piece together from different parts of Barkman's deposition) was dramatic.

A. [from Barkman] That they saw me come out of the interrogation room, and I was upset, and I was angry. A lot of emotion on my part. And I think what the task force people saw was one of the senior partners who was supposed to get the confession from the Prime Time Rapist, who had profiled him, who had done this and done that, suddenly was getting feet of clay. Something was wrong. And they--I think it was their way of trying to build me back up to get me back into this fight. You can only do so much, Weaver, things like that.

And there were other conversations about trying to get--get me put back together so I could get it together enough to go back in there.

....

A. My impression is Karen [Wright] was there, Milne was there, and I told him what--what I felt. And Tom [Taylor] may very well have been present when I gave him my don't--didn't fucking do it speech.

Q. Well, then what did Tom Taylor do?

A. He said something very close to fingerprints do not lie. Get your ass back in there, Weaver.

Q. All right. So he ordered you to go back in and continue the interrogation?

A. Yes.

Q. And did you do that?

A. No.

Q. Why not?

A. I balked.

Q. What did you tell him?

A. I--I don't remember the exact words, but I started saying, look, Tom, this, that, this, that. I've got problems, real problems, man.

....

Q. Well, how come you didn't go back in there at that point in time?

A. For several different reasons. It was becoming--and, true, this is hindsight. But it was becoming clear to me that I could no longer deny my feelings that we got the wrong guy.

Q. Okay.

A. And the further--I mean, the more we do to this guy, there--you know, there could be potential liability.

But the main problem I had was I am a high reactor, I leak emotionally.

Id. (emphasis added).

Despite Barkman's misgivings, Taylor had his mind made up about Cooper's guilt, and was not going to let anything interfere with his goal of securing a confession. At one point during the interrogation, Mary Kay McCall, a fingerprint examiner with the Tucson Police Department, was summoned by Taylor to the Task Force's headquarters. McCall described what happened next. "I walked in the door, was met by a man I thought to be Sergeant Taylor. He said, come with me, I want to try to force a confession out of this man." Appendix for Motion for Summary Judgment of Facts filed in Behalf of Pima Co. Etc., Section H, at 32 (emphasis added). Taylor did confront Cooper with McCall and the fingerprint evidence, but the confrontation did not produce the intended result.

At about 9:00 P.M. that evening, with Cooper still maintaining his innocence, the interrogation ceased. He was then booked in the Pima County Jail where he may have had access to a telephone. The plan, although implemented with great intensity, had failed to yield a confession.

C THE "EVIDENCE" AGAINST COOPER UNRAVELS

After Mary Kay McCall had been used by Sergeant Taylor in an attempt to break Cooper by confronting him with the "positive" fingerprint match, she returned to the Tucson Police Department to double-check her comparison of Cooper's known prints and the latent fingerprints from crime scenes Nos. 470 and 302. After considerable work, removed (as she describes it) from the "pressure" generated by the Task Force, she concluded that a mistake might have been made. She called O'Sullivan and Scott to inform them of her revelation, but they ignored her and declined to reexamine the exemplars. At approximately 11:30 P.M., she called the Task Force, and talked to Sergeant Taylor. She advised him that the matches were inconclusive. He ordered her to come to a conclusion.

After more examination of the fingerprint evidence generated by McCall's concern, the persons working on the fingerprint comparisons concluded that they did not have a match after all. They found sufficient discrepancies to cancel the points of comparison, and they reported their findings to Sergeant Taylor. On May 8, 1986, at about 10:00 A.M., Scott, Taylor, Barkman, and Wright met to discuss the fingerprint evidence. The following is Sergeant Taylor's description of the meeting.

Q. [to Taylor] And who's leading the charge there? I assume you were. You're the sergeant.

A. Yeah. I don't suppose it was a charge more than it was a, hey, tell me what's going on here.

Q. Okay. Did you seek out somebody specifically?

A. Gene Scott.

....

Q. So what's Scott tell you?

A. That they're withdrawing the positive identification, that there's--these eleven or twelve points are still there, but there's these dissimilarities. And he explains those things in terms of maybe being shadow prints, prints over prints, stretch marks. I couldn't understand what it was that the problem was.

Q. Why didn't you ask him what the problem was?

A. I did.

Q. Okay.

A. And it was that business about the discrepancies overrules the twelve points. And my question was, if you've got twelve points, then shouldn't you be able to say that it's him. And his response was, no, because the discrepancies are there.

Q. So he told you that they were withdrawing the positive identification and he's not saying that it's him?

A. Correct.

Id. at 236.

Although (1) the fingerprint match now had been withdrawn, (2) Cooper vigorously was proclaiming his innocence, and (3) the Task Force's crack interrogator thought they had the wrong man, Sergeant Taylor still believed that Cooper was the Prime Time Rapist. He explained his opinion as follows:

Q. [to Taylor] Okay. And that was based upon what now?

A. Their insisting that the points were there, but the discrepancies overrode the points; that they couldn't say there was positive identification, so they were going to send them off to the FBI to clarify that issue.

Q. Okay. So if you put aside that information, what basis did you have to believe Mr. Cooper was responsible for [the] G___ and F___ [rapes] [Nos. 470 and 302]?

A. If you put that aside, surely none.

Q. You had none.

Okay. But I thought you said you still wanted to go ahead with the prosecution.

A. Yeah. Yeah, I was--I was betting on the come.

Q. Okay. Based on what?

A. That the FBI was still going to come through and say [that the latent fingerprints were Cooper's].

Id. at 240.

D COOPER'S RELEASE

Next, the Task Force met with the local prosecuting attorney. Sergeant Taylor argued to keep Cooper in jail, but Barkman at this point insisted Cooper was innocent. The prosecuting attorney was not persuaded by Sergeant Taylor, and Cooper finally was released during the afternoon of that day, May 8, 1986, nearly twenty-four hours after his arrest. During his incarceration, and despite two attempts to contact an attorney, Cooper apparently had no contact with the outside world--including his family.⁴E POLICE STATEMENTS TO THE MEDIA

During the evening of May 7, 1986, the day Cooper was arrested, Sergeant Taylor told the media "what we have caught is a man who has committed two rapes of twenty we are looking at." Taylor made this statement knowing that (1) Cooper did not fit the physical description of the rapist given by the victims of the two rapes in question, and (2) Barkman believed Cooper was not responsible for these incidents.

The next day, after it became apparent to Chief Ronstadt that Cooper had been misidentified by his crime lab, Ronstadt met with representatives of the media to explain Cooper's release. Prior to this appearance, Chief Ronstadt had been briefed about irregularities in the print-comparison procedures resulting in the misidentification of Cooper. During the briefing, when Chief Ronstadt asked for an explanation of the mistake, Scott told him, "I just screwed up." Nevertheless, Chief Ronstadt told the media he had no reason to believe negligence was involved in Cooper's misidentification.

On May 9, 1986, the fingerprints in question were given for comparison to qualified experts of the Arizona DPS. Later that day, the DPS advised Sergeant Taylor that the latent prints did not belong to Cooper, verifying the belated conclusion of Taylor's own officers. Sergeant Taylor accepted this result as accurate even though the same prints were later sent to the FBI for examination.

In July of 1986, two months after Cooper's release, and after the FBI had confirmed the mismatch of Cooper's prints, the Tucson Police Department publicly announced Cooper had been cleared. In the interim between his arrest and the announcement clearing him, Cooper alleges that he and his family were evicted from their residence, that he was fired from his job, and that he suffered serious injury to his business and personal reputation.

III COOPER'S LAWSUIT

A THE COMPLAINT

On January 8, 1987, Cooper and his wife filed a civil action in the United States District Court for the District of Arizona. The lawsuit named the following defendants: Pima County, the Pima County Sheriff's Department, Pima County Sheriff Clarence Dupnik, Detective Weaver Barkman, Jr., Sergeant Tom Taylor, the City of Tucson, the City of Tucson Police Department, Detective Karen Wright, Chief Peter Ronstadt, and the fingerprint identification technicians, including Gene Scott, Timothy O'Sullivan, and Mary Kay McCall. In his Second Amended Complaint, filed on November 25, 1987, Cooper alleged nine counts under 42 U.S.C. § 1983, and nine counts under state tort law, including false arrest, malicious prosecution, defamation, false-light invasion of privacy, intentional infliction of emotional distress, trespass, conversion, negligence, and conspiracy. These state claims are not at issue in this appeal.

The federal civil rights claims in Cooper's Second Amended Complaint are as follows:

Count One: Denial of Right to Counsel and Right to Remain Silent.

Count Two: False Arrest.

Count Three: False Imprisonment.

Count Four: Improper Training and Procedures.

Count Five: Injury to Reputation and Property Interests.

Count Six: Invasion of Privacy.

Count Seven: Illegal Search and Seizure (Residence).

Count Eight: Illegal Search and Seizure (Automobile).

Count Nine: Conspiracy.

We note that Cooper sues in connection with the interrogation for the alleged violation of his substantive Constitutional rights, not merely for violations of the procedural safeguards provided by Miranda. He now concedes, however, that the Sixth Amendment right to counsel is inapposite because he never formally was charged in court with a crime. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964).B THE DISTRICT COURT DENIES SUMMARY JUDGMENT

On October 24, 1988, the district court held a hearing on motions for summary judgment filed by the appellants. Appellants Dupnik, Taylor, and Barkman (the "Pima County appellants") were successful on all § 1983 counts except Count One (Denial of Right to Counsel and Right to Remain Silent), and Count Nine (Conspiracy). The Pima County Appellants specifically appeal the rejection of their asserted defense of qualified immunity with respect to Count One.⁵

Appellants City of Tucson, Ronstadt, Wright, Scott, O'Sullivan, and McCall (the "City of Tucson appellants") were unsuccessful on Count One (Denial of Right to Counsel and Right to Remain Silent), Count Two (False Arrest), Count Three (False Imprisonment), Count Four (Improper Training and Procedures), Count Five (Injury to Reputation and Property Interests), and Count Nine (Conspiracy). They filed a notice of appeal based on the rejection of their defense of qualified immunity, but they did not address Counts Two, Three, Four, or Nine in their briefs, asking instead only that judgment be reversed as to Counts One and Five.

We consider only those counts addressed by appellants in their respective briefs--Counts One, Five,⁶ and Nine.⁷ The heart of our opinion concerns Count One: the Denial of Right to Counsel and Right to Remain Silent. We leave intact the rulings of the district court as to the other counts.

IV OVERVIEW OF ANALYSIS

With respect to their handling of Cooper's interrogation, all appellants argue that the record in this case clearly presents a situation in which they are entitled as a matter of law to a complete defense of qualified immunity as defined by the Supreme Court in Mitchell. They point to the holding in Mitchell that clarifies both the standard of review we apply as well as the test for determining whether they are entitled to their claimed defense.

An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.

Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816 (footnote omitted).

The appellants characterize their conduct as simply "continuing with custodial interrogation after a request for counsel." At most, they concede a violation of Miranda safeguards, not the underlying Fifth Amendment substantive right to remain silent that Miranda was designed to protect. They argue with respect to Count One that because Miranda safeguards are not themselves mandated by the Constitution, citing New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), failure to abide thereby does not offend the Constitution. Thus, they conclude 42 U.S.C. § 1983, which requires a violation of a "right[ ] ... secured by the Constitution," is manifestly inapplicable. The only clearly established consequence of "disregarding Miranda," they argue, is "the risk" that any evidence obtained thereby may be ruled inadmissible against the questioned suspect in a criminal trial, not that they would be subjected to civil liability. To paraphrase their position at oral argument, the Fifth Amendment is satisfied if any statement at issue is not used in court. In support of this position, they point to the rule that permits the use of a statement obtained in violation of Miranda to impeach a defendant who takes the stand and presents a different story. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Counsel for Sheriff Dupnik even asserts that "extensive case law permits this conduct" in arguing that this case did not merit rehearing en banc. None of the appellants seek to justify the Task Force's conduct on the ground that they were confronted with exigent circumstances.

Section 1983 imposes civil liability on any person who, acting under color of state law, deprives a United States citizen of his federal Constitutional or statutory rights.⁸ See Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980); Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990). Cooper is a United States citizen, and the appellants in this case are police officers and employees of police departments, who were at all relevant times acting under color of state law.

Cooper's suit in connection with this appeal hinges on whether the appellants deprived him of a Constitutional right. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (section 1983 " 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " (citation omitted)). The original panel in this case concluded Cooper did not state a cause of action under § 1983 because, although his request for counsel was not honored,

[t]he Miranda warnings and rights are not themselves constitutionally mandated, but are rather procedural safeguards, or prophylactic measures, to ensure that the Fifth Amendment right against compulsory incrimination is not violated.

....

Although there is no case on point from our circuit, all out-of-circuit cases hold that a plaintiff may not, as a matter of law, maintain a section 1983 action based upon the failure by the police to issue Miranda warnings.... [Because] Miranda requirements are not a constitutional prerequisite, their violation cannot form the basis of a section 1983 suit.

Cooper, 924 F.2d at 1527 (citations and footnote omitted); see id. at 1528 n. 13.

The panel rejected Cooper's claim on four additional grounds. First, it concluded Cooper's Fourteenth Amendment rights were not violated because Cooper did not confess to any crime. Id. at 1529. Second, it overlooked Miranda 's primary holding that the Constitutional right against compulsory self-incrimination, known as the right to remain silent, is applicable to suspects in police custody; as a result, it rejected Cooper's Fifth Amendment claim. See id. at n. 17. Third, the panel determined Cooper's substantive due process rights were not violated because the Task Force's conduct did not " 'shock[ ] the conscious' [sic]," id. at 1530 n. 20 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)). Fourth, the panel decided that all appellants were protected from suit by the doctrine of qualified immunity, because "[t]here are simply no section 1983 substantive due process cases with similar facts." Id. at 1531.

We respectfully disagree with the majority of the original panel on each of these issues. First, the record reveals Cooper made statements which could and probably would have been used against him had he gone to trial. Detective Wright was asked if she believed the interrogation produced information that substantiated Cooper's involvement in two of the cases. Her answer was: "There was information from my interview with him that, yes, I thought it could." Exhibits--Vol. I, No. 0064. Cooper's statements were the product of impermissible conduct by the Task Force; the fact that they did not technically qualify as a "confession" is irrelevant. See Part V, infra.

Second, to characterize the Task Force's conduct as a mere violation of Miranda 's prophylactic advisement requirements is to see a hurricane as but a movement of air. The appellants in this case engaged in the premeditated elimination of Mr. Cooper's substantive Fifth Amendment rights, not merely the disposal of the procedural safeguards designed to protect those rights. Thus, Cooper's statements were "compelled" and "coerced." See Part VI, infra.

By the same reasoning, Cooper's Fourteenth Amendment rights also were violated. It is irrelevant that Cooper's coerced statements were never introduced against him at trial. The Task Force's wrongdoing was complete at the moment it forced Cooper to speak. This case does not involve an inchoate Constitutional violation. See Part VII, infra.

Third, the Task Force's conduct unquestionably shocks the conscience, and thus violates substantive due process. The original panel conceded that "the question is a close one," Cooper, 924 F.2d at 1530, but then concluded there was no violation. With all respect, we do not think the question is close: the Task Force's conduct was iniquitous, and surely does "more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically." Rochin, 342 U.S. at 172, 72 S.Ct. at 209. See Part VIII, infra.

Fourth and finally, the appellants are not protected by the doctrine of qualified (good-faith) immunity. Qualified immunity protects officials from suits under § 1983 for violations of rights which are not "clearly established at the time of the challenged actions...." Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. But this case does not involve any borderline Constitutional rights. There is no question that the Constitutional holding in Miranda is "clearly established" law; similarly, there is no question that the appellants' conduct violates both the Fifth Amendment itself (as opposed to just the Miranda rules designed to protect it), and the Fourteenth Amendment. Appellants knew they were violating the Constitution. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity is not available to officials who "knowingly violate the law"). See Part IX, infra.

For these reasons, we believe that Cooper, relying on multiple theories, has made out a prima facie case under § 1983 against the appellants. Accordingly, we affirm the district court on all counts and remand the case for trial. Our analysis follows.

V COOPER'S STATEMENTS

The original panel in this case concluded Cooper's suit faced "an insurmountable problem ... because Cooper, an innocent man, was never coerced into a confession." Cooper, 924 F.2d at 1529. The dissent responded to that point:

The position of the court is that if unlawful police interrogation overcomes the will of a guilty suspect who then confesses, the suspect has been denied [his Constitutional rights] and has a civil rights action against his interrogators; but if the suspect is innocent rather than guilty and so has nothing to confess, the same kind of interrogation is no violation ... and the innocent man has no redress for violation of his ... rights. Our law has many subtleties and turnings, but such a counter-intuitive result cannot be, and is not, the law.

Id. at 1538 (Noonan, J., concurring and dissenting). We agree.

Indeed, four hours of interrogation produced statements from Cooper which the prosecution might have used at trial. Cooper admitted that he had slapped his wife, and that he often left his home, unaccompanied, at night, sometimes for hours at a time. Although far less than a complete confession, these statements might have been useful to the prosecution. As we have pointed out, Detective Wright stated in her deposition that she felt Cooper's statements would have been useful as evidence. Cooper's statements would have hindered any insanity defense. Accordingly, they support a Constitutional violation. As the Court stated in Miranda,

[n]o distinction can be drawn between statements which are direct confessions and statements which amount to "admissions" of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for