Metropolitan News-Enterprise


Wednesday, February 26, 2020


Page 1


Ninth Circuit:

Officers Entitled to Qualified Immunity in Forced-Confession Case

Majority Declares There Was No Showing 90-Minute Questioning Contravened Clearly Established Law; Wardlaw Dissents, Saying That Oppressive Grilling of 13-Year-Old Was Unconstitutionally Coercive


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday held, in a split opinion, that three Los Angeles police detectives were erroneously denied qualified immunity in a case in which the plaintiff claims they exacted a coerced confession from him to a murder he did not commit, resulting in his incarceration in a juvenile facility for more than three years before he obtained a reversal.

Members of the panel—comprised of Circuit Judges Daniel P. Collins and Kim Wardlaw, along with District Court Judge Benjamin H. Settle, of the Western District of Washington, sitting by designation—did agree that qualified immunity was properly denied to the detectives on Art Tobias’s claim that his Fifth Amendment right to counsel was denied. Questioning of Tobias, then 13, continued even after he invoked his right to counsel.

There was a division on the question of whether the detectives—Michael Arteaga, Jeff Cortina, and Julian Pere—exacted an involuntary confession, in violation of Tobias’s right against self-incrimination and whether they breached due process by utilizing interrogation techniques that shock the conscience.

Close Question

Writing for the majority, Collins said:

“Although Tobias was only 13 years old and his unequivocal request for counsel was improperly brushed aside, his early-evening interrogation lasted only 90 minutes, involved no physical threats or abuse, and otherwise relied on interrogation techniques that cannot be said, either singly or in the combination presented here, to have violated clearly established law (e.g., bluffing about the strength of the evidence the officers had, arguing that the courts would go easier on the suspect if he confessed to what he had done, and shaming the suspect for the effect a prosecution would have on his family). Although the question is a close one in light of the patent violation of Tobias’s right to counsel, in our view Tobias has failed to show that the officers’ conduct in the interrogation constituted impermissible coercion under clearly established law.”

Wardlaw protested:

“The detectives in this case cursed at Art Tobias…, ignored his request for counsel, repeatedly told him that he looked like a ‘cold-blooded killer,’ falsely said that somebody had ‘given him up,’ shamed him for ‘dragging [his] family into this,’ promised him likely leniency if he confessed, and threatened him with a harsh sentence if he stayed silent. After more than an hour of this treatment, Tobias broke down and confessed to a murder he did not commit.”

2010 Decision

The judge cited the Ninth Circuit’s 2010 opinion in Crowe v. City of San Diego, saying:

“In Crowe, we held that officers committed a Fourteenth Amendment substantive due process violation when they ‘cajoled, threatened, lied to, and relentlessly pressured’ two young teenagers into falsely confessing….That is precisely what Detectives Arteaga, Cortina, and Pere did here.”

Wardlaw added:

“[I]in light of Crowe, every reasonable officer would also have understood that the interrogation tactics here were unconstitutionally coercive, in violation of the Fifth Amendment.”

Case Distinguishable

Collins responded:

Crowe is distinguishable because there, one of the boys interviewed was ‘in shock over his sister’s brutal murder,’ and the boys were subjected to ‘hours and hours of interrogation’ featuring ‘the most psychologically brutal interrogation and tortured confession’ that one expert witness had ever observed.”

(Judge Sidney Thomas—now chief judge—noted in Crowe that questioning of each boy lasted “over 10 hours.”)

Tobias also alleged there had been a fabrication of evidence, a claim made against Detective John Motto, as well as Arteaga, Cortina, and Pere. The three judges were in agreement that such a claim cannot be founded on fabrication of evidence in the form of a coerced confession.

A fifth defendant—Officer Daniel East—was denied immunity by the District Court judge, Dale S. Fischer of the Central District of California. Members of the panel agreed that it could not be determined from the ruling why there had been a denial, and that determination was reversed with a remand.

Allegations of Complaint

According to allegations of the complaint, signed by Tobias (who was also represented by a Chicago lawyer):

“As a consequence of the shocking misconduct of officers in Los Angeles Police Department…, Plaintiff Art Tobias was convicted of a homicide that he did not commit. Just a child at the time of the shooting—a short, skinny 13 year-old with no criminal history—Plaintiff was sentenced to 25-years to life, and spent nearly three and-a-half years incarcerated before his conviction was overturned.

“The homicide for which Plaintiff was wrongfully convicted was a shooting and captured on video surveillance footage. On account of that footage, LAPD officers knew that there was absolutely no way Plaintiff had committed the crime; the perpetrator was a heavy-set adult, not a small teen. Nonetheless, and despite the clear footage, LAPD officers—the Defendants to this suit—decided to frame Plaintiff for a crime he did not commit….”

The pleading goes on to say:

“…Defendants took their misconduct a step further by subjecting a 13-year old to a grueling, unlawful interrogation. The interrogation, which is also captured on video, reveals the unconscionable misconduct of the Defendant Officers who—with guns on their hips and Plaintiff handcuffed to a chair—used blatantly unconstitutional and coercive tactics to produce a false, forced, and fabricated confession. Defendants made false promises, screamed and yelled, lied, refused Plaintiffs repeated pleas to see his mother, refused Plaintiffs request for an attorney, swore at Plaintiff, and one officer even put his hands on Plaintiff. Without that misconduct, which succeeded in unlawfully-creating false evidence, Plaintiff would have never been convicted.”

The case is Tobias v. East, 18-56245.

The Juvenile Court’s jurisdictional finding that Tobias had committed a murder and its dispositional order were reversed on Feb. 11, 2015, in In re Art T. Then-Los Angeles Superior Court Judge Gail Ruderman Feuer, on assignment to Div. Seven of this district’s Court of Appeal (of which she is now a member), wrote:

“…Art’s statement after viewing the video of the shooting, ‘Could I have an attorney? Because that’s not me,’ was an unequivocal request for an attorney.

“We do not find the People’s argument credible that a reasonable detective would have believed that 13–year–old Art, in stating, ‘Could I have an attorney? Because that’s not me’ was merely inquiring whether he could have a lawyer in court to prove his innocence. The People’s further argument that Art waived his right to an attorney by continuing to answer questions must also be rejected as contrary to the law….

“Accordingly, once Art made a request for an attorney, all questioning should have ceased.”


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