                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                      REVISED APRIL 13, 2005
              IN THE UNITED STATES COURT OF APPEALS            March 31, 2005

                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk


                             No. 03-51379


LACRESHA MURRAY, ET AL
                                                             Plaintiffs

LACRESHA MURRAY

                                                   Plaintiff-Appellee,

versus

RONNIE EARLE, etc.; ET AL

                                                               Defendant

DAYNA BLAZEY, Individually and as an Assistant District Attorney of
Travis County, Texas; STEPHANIE EMMONS, Individually and as an
Assistant District Attorney of Travis County, Texas; ANGELA MCGOWN,
Individually and as Supervisor of the Travis County Child
Protective Services; HECTOR REVELES, Individually and as a
Detective of the Austin Police Department; ERNEST PEDRAZA,
Individually and as a Detective of the Austin Police Department;
ALBERT EELS, Individually and as a Detective of the Austin Police
Department

                                                 Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                        (A-02-CV-552-SS)
                      --------------------

Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District
Judge.

WIENER, Circuit Judge:

     Defendants-appellants Dayna Blazey, Stephanie Emmons, Hector

     *
       District Judge, Northern District of Texas, sitting by
designation.
Reveles, Angela McGown, Ernest Pedraza and Albert Eells appeal the

district court’s denial of their motion for summary judgment on the

grounds of immunity under federal and state law.            They contend on

appeal   that   they   should   not    be   held   liable   for   coercing   a

confession from the minor plaintiff-appellee, LaCresha Murray,

which ultimately led to her later-reversed conviction (and lengthy

incarceration) for injury to a child.1          We reverse.

                        I.   FACTS AND PROCEEDINGS

     This case arises out of the investigation of plaintiff-

appellee LaCresha Murray’s (“LaCresha”) involvement in the death of

Jayla Belton, age two, in 1996.             At the time of these events,

LaCresha was eleven years old.        She and her siblings lived with her

grandparents, R.L. and Shirley Murray, who were her adoptive

parents, as well.      The Murrays also provided daycare in their home

for several other children.

     Late in May of 1996, Jayla, who was routinely cared for by the

Murrays, was dropped off at the Murray home by her mother’s

boyfriend.   During the course of the day, Jayla appeared to be ill.

After she vomited at the lunch table, LaCresha’s older sister,

Shawntay, gave Jayla some medication and put her to bed.              No one

checked on Jayla until later that day. R.L. Murray testified that,

late in the afternoon, LaCresha came in from outside and went to


     1
        In Texas, juvenile criminal adjudications are civil in
nature, therefore, LaCresha’s conviction is for a civil, not
criminal, offense.

                                       2
the back of the house, near the bedroom where Jayla was sleeping.

R.L. then heard “thumping noises,” but he assumed that LaCresha was

playing with a ball and told her to stop.               Shortly after that,

LaCresha told R.L. that Jayla was throwing up and shaking.                   He

asked her to bring Jayla to the front of the house, where he

observed that Jayla appeared ill.          He told Lacresha to take Jayla

outside to warm her up.

       At 5:00 p.m., another parent arrived to collect her children

and noticed that Jayla was sweating profusely.               That parent urged

R.L. to call 911, but he declined to do so.         R.L. took Jayla to the

hospital, however; she was pronounced dead at approximately 5:30

p.m.

       An autopsy conducted the following day revealed that Jayla had

suffered a severe liver injury caused by a blunt blow to the

abdomen.      This trauma had broken four of her ribs and split her

liver into two pieces.        The medical examiner concluded that Jayla

had died within five to fifteen minutes after receiving the injury

and    also   noted   some   thirty   other   bruises   to    her   head,   ear,

forehead, back, shoulder, elbow, chest, and the left side of her

torso.    The examiner ruled Jayla’s death a homicide.

       That same day, law-enforcement authorities removed all the

children from the Murray home.        They placed LaCresha and one of her

sisters in Texas Baptist Children’s Home, a private shelter for

children which contracts with the State to provide foster care. At



                                       3
the time that these children were removed from their adoptive

parents’ home, the authorities believed that they were in danger.

There is some dispute as to exactly when the police first began to

suspect that LaCresha had killed Jayla, but the focus of the

investigation had quickly shifted to LaCresha after law-enforcement

authorities spoke with other members of the household.

     Three days after LaCresha had been removed from her adoptive

parents’ home, Detective Reveles directed Detectives Pedraza and

Eels, along with Angela McGown, the supervisor of the Travis County

Child Protective Services, to interview LaCresha. It is undisputed

that, by this time, the police no longer feared for LaCresha’s

safety but instead considered her a suspect in Jayla’s death.

     Before the interview of LaCresha, Detectives Reveles and

Pedraza consulted with assistant district attorney Emmons on the

proper method of interrogating LaCresha.    Emmons testified that,

even though LaCresha had been at the Texas Baptist Children’s Home

for three days, none of the officials believed that she was in the

custody of the State.   In their minds, this obviated the need for

them to take her before a magistrate, as required by Texas law for

children who are in state custody.   Pedraza and Eels gave LaCresha

a Miranda warning before beginning to interrogate her, but they did

not take her before a magistrate or notify her parents or attorney.

     The detectives questioned LaCresha at the Baptist Children’s

Home for approximately two hours, eventually eliciting a confession



                                 4
that she had dropped Jayla and kicked her.                  The State then charged

her with capital murder and injury to a child; the juvenile court

ruled her confession admissible; and the jury convicted her of

negligent homicide and injury to a child.                     Extensive publicity

followed, presumably influencing the juvenile court to order a new

trial on its own motion.             At the second trial, the State charged

LaCresha with injury to a child; her confession was again admitted;

and the second jury convicted her.               The juvenile court adjudicated

LaCresha delinquent and sentenced her to twenty-five years in the

custody of the Texas Youth Commission.

      Three      years     later,    the   Texas    Court    of    Appeals   reversed

LaCresha’s conviction.2             The appellate court ruled that LaCresha

had   been      in   the   custody    of   the     State,   that    law-enforcement

authorities had violated Texas law by not taking her before a

magistrate prior to interrogating her, and that her confession was

therefore inadmissible.3

      LaCresha then brought suit in district court for damages

against numerous individuals, some of whom were only tangentially

related to the LaCresha’s judicial proceedings, asserting various

violations of her constitutional and state rights.                   On motions for

summary judgment, the district court dismissed all her claims

except those against the Defendants——Appellants (collectively, “the

      2
       In re L.M., 993 S.W.2d 276, 291 (Tex. App. – Austin 1999,
pet. denied).
      3
          Id.

                                            5
defendants”) for violations of her Fifth Amendment right against

self-incrimination     and   for    state   law   civil   conspiracy.   The

defendants now appeal the denial of their summary judgment motions

for qualified immunity on LaCresha’s Fifth Amendment claims and for

official immunity under state law on her civil conspiracy claims.

     We have jurisdiction over both appeals.               A defendant may

immediately appeal the denial of qualified immunity, even though it

is not a “final decision” under 28 U.S.C. § 1291.4            The Texas law

of official immunity provides the same protection against both

suit and liability as does the federal doctrine, so we also have

jurisdiction to review denial of state law immunity claims on

interlocutory appeal.5

                              II.    ANALYSIS

A.   Standard of Review

     We review denials of grants of summary judgment de novo.6

Summary judgment may be granted if the moving party shows there is

no genuine issue of material fact, and it is entitled to judgment

as a matter of law.7     We construe all facts and inferences in the

light most favorable to the nonmoving party when reviewing grants

     4
         Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985).
     5
       Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299
F.3d 395, 413 (5th Cir. 2002).
     6
       Tex. Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d 153, 156
(5th Cir. 1996).
     7
       Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).

                                      6
of motions for summary judgment.8

B.   Fifth Amendment Violation: Qualified Immunity

     In undertaking a qualified immunity analysis, we must first

determine whether the plaintiff has suffered a violation of his

constitutional rights and, if so, whether a reasonable official

should    have   known   that   he    was     violating     the    plaintiff’s

constitutional rights.9    The district court held that, under these

narrow circumstances —— an eleven-year-old child is removed from

her home, housed at a private shelter by the State for three days,

interrogated there for hours by two seasoned investigators to the

point of    confession   without     an    adult   or   advocate   present   to

represent her interests, and is convicted largely on the strength

of that confession —— the child may, after the conviction is

overturned on the grounds that the confession was inadmissible, sue

under § 1983 for damages she suffered as a result of the violation

of her constitutional rights.10           On appeal, the defendants insist


     8
       Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert
denied, 5525 U.S. 1103 (1999).
     9
       Hope v. Pelzer, 536 U.S. 730, 736, 739 (2002). Defendants
Emmons and Blazey are each prosecuting attorneys in Travis
County, however, they are entitled to claim only qualified
immunity rather than the absolute immunity normally enjoyed by
prosecutors. LaCresha is suing them for the legal advice which
they provided the police investigators, for which they are not
entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478,
496 (1992)(holding that absolute immunity does not protect the
prosecutorial function of giving advice to the police).
     10
       LaCresha spent three years in juvenile detention as a
result of her conviction.

                                      7
that, even if LaCresha’s right against self-incrimination was

violated, § 1983 does not, or at least should not, provide her with

a remedy.     We hold that, because LaCresha cannot demonstrate that

defendants acted unreasonably, in that their actions did not

proximately cause the damages that she suffered, she may not

maintain a Fifth Amendment cause of action against them under §

1983.

     1.     Constitutional Violation

     It is axiomatic that a criminal defendant’s constitutional

rights have been violated “if his conviction is based, in whole or

in part, on an involuntary confession, regardless of its truth or

falsity.”11       The   Fifth   Amendment   privilege   against   self-

incrimination is a fundamental trial right which can be violated

only at trial, even though pre-trial conduct by law enforcement

officials may ultimately impair that right.12      The constitutional

privilege against self-incrimination adheres in juvenile court

proceedings just as it does in ordinary criminal court.13     In fact,


     11
       Miranda v. Arizona, 384 U.S. 436, 465 n.33 (1966). The
Supreme Court has held that § 1983 plaintiffs do not have a Fifth
Amendment claim against law-enforcement officials who have
elicited unlawful confessions if those confessions are not then
introduced against the plaintiffs in criminal proceedings. This
case is distinguishable, as LaCresha’s statement was admitted at
trial and did result in her conviction. See Chavez v. Martinez,
538 U.S. 760 (2003).
     12
       Chavez, 538 U.S. at 767; United States v. Verdugo-
Urquidez, 494 U.S. 259, 264 (1990)(internal citations omitted).
     13
          In re Gault, 387 U.S. 1, 30-31, 55 (1967).

                                    8
states must take greater care to protect juveniles against coerced

confessions during police interrogations, because children are more

likely to be induced to confess, and their confessions are less

likely to be reliable.14

          a.     Custodial Interrogation

     An   individual’s      Fifth     Amendment        right    against   self-

incrimination      is    implicated        only   during        a    “custodial”

interrogation.15         The   Supreme        Court      defines     “custodial

interrogation”     as   “questioning       initiated     by    law   enforcement

officers after a person has been taken into custody.”16                A suspect

is “in custody” for these purposes either (1) when he is formally

arrested or (2) “when a reasonable person in the position of the

suspect would understand the situation to constitute a restraint on

freedom of movement to the degree that the law associates with

formal arrest.”17       We review de novo the question whether an

     14
       Id. at 55. “[A]uthoritative opinion has cast formidable
doubt upon the reliability and trustworthiness of ‘confessions’
by children.” Id. at 52.
     15
       See Illinois v. Perkins, 496 U.S. 292, 296 (1990)(citing
Miranda, 384 U.S. at 444); United States v. Gonzales, 121 F.3d
928, 939 (5th Cir. 1997)(“It is axiomatic that ‘the Fifth
Amendment privilege against self-incrimination prohibits
admitting statements given by a suspect during ‘custodial
interrogation’ without a prior warning.’”)(quoting Perkins, 496
U.S. at 296).
     16
       Gonzales, 121 F.3d at 939 (5th Cir. 1997)(citing Perkins,
496 U.S. at 296)(internal quotations omitted).
     17
       Gonzales, 121 F.3d at 940 n.6 (citing United States v.
Galberth, 846 F.2d 983, 986 n.1 (5th Cir. 1988) and United States
v. Bengivenga, 845 F.2d 593, 596 (5th Cir.)(en banc), cert

                                       9
interrogation was custodial.18

     The district court relied heavily on the reasoning of the

Texas Court of Appeals in determining whether LaCresha was in the

custody of the State during her interrogation. The Texas appellate

court’s initial determination whether LaCresha was in custody,

though     addressing   the   federal   constitutional   standard   for

“custodial interrogations,” was undertaken solely for the purposes

of the Texas law requiring that, if so, she should have been taken

before a magistrate before the police questioned her.19             This

inquiry is apposite but not determinative of our de novo federal

constitutional inquiry regarding “in custody,” i.e., whether a

reasonable person in LaCresha’s position would have understood that

his liberty was constrained to the extent associated with formal

arrest.

     On the latter issue, the Texas appellate court held, in

contrast to the Texas trial court, that LaCresha’s interrogation

was custodial, adopting and applying a “reasonable child” standard.

The court asked whether, under these circumstances, a reasonable

child of eleven would have believed that her freedom of movement




denied, 488 U.S. 924 (1988)).
     18
          United States v. Paul, 142 F.3d 836, 843 (5th Cir. 1998).
     19
        Texas law requires that a child be taken before a
magistrate before interrogation if the child is in a detention
facility or other place of confinement. Tex. Fam. Code. §
51.095(d)(1).

                                   10
was constrained to the degree associated with formal arrest.20        The

appellate court emphasized that LaCresha was involuntarily removed

from her home by the State and placed in a children’s shelter

pursuant to emergency provisions of section 262 of the Texas Family

Code.21 The state appellate court agreed with the state trial court

that, for purposes of evaluating whether LaCresha was “in custody”

for purposes of Texas state law, the Texas Baptist Children’s home

was not a jail or detention facility.22              The appellate court

diverged from the trial court, however, in ruling that (1) because

the shelter assumed all duties of care and control over children

residing there, it was a place of confinement; and (2) practically

speaking, LaCresha was not free to leave, as she would have had to

“run away” from the shelter, and she had no means of returning to

her home.23     Although the determination that the shelter was a

“place of confinement” under Texas state law is not directly

relevant to the question whether LaCresha was in custody during the

ensuing interrogation,     the   state   appellate    court’s   underlying

determinations regarding the degree of restriction over LaCresha’s

movement imposed by the state is relevant to whether she would have


     20
       In re L.M., 993 S.W.2d 276, 289 (Tex. App. —— Austin,
1999, pet. denied).
     21
          Id.
     22
          See Tex. Fam. Code. § 51.095(d)(1).
     23
       In re L.M. 993 S.W.2d 276, 289 (Tex. App. —— Austin,
1999, pet. denied).

                                   11
felt her liberty to be constrained.

      The defendants protest that we ought not consider a suspect’s

age in evaluating whether he was “in custody” for purposes of a

Fifth Amendment violation.            Rather, they assert, we must use an

objective test, asking only whether a reasonable person, not a

reasonable      child,    would    have   concluded    that    his   liberty     was

constrained.24        The Supreme Court has endorsed this approach when

confronted with an interrogation of a seventeen-year-old suspect,

but the      Court’s     conclusion   rested     on   the   assertion     that   the

“custody inquiry states an objective rule designed to give clear

guidance     to   the    police,    while      consideration    of   a    suspect’s

individual characteristics —— including his age —— could be viewed

as   creating     a   subjective    inquiry.”25       Justice   O’Connor      wrote

separately to emphasize that “[t]here may be cases in which a

suspect’s age will be relevant to the Miranda ‘custody’ inquiry”

but that in Yarborough, the defendant was almost eighteen years old

and it would be difficult “to expect police to recognize that a

suspect is a juvenile when he is so close to the age of majority.”26

      The case of an eleven-year-old is different.                       The police

should have no difficulty recognizing that their suspect is a

juvenile and adjusting their determination whether the suspect

      24
       See United States v. Gonzales, 121 F.3d 928, 940 n.6 (5th
Cir. 1997)(citations omitted).
      25
           Yarborough v. Alvarado, 124 S. Ct. 2140, 2151-52 (2004).
      26
           Yarborough, 124 S.Ct. at 2152 (O’Connor, J., concurring).

                                          12
would      understand   his   freedom   of   movement      to   be   constrained

accordingly.       In any event, even if we were to ignore LaCresha’s

age at the time of her interrogation, we would still conclude that

a reasonable individual of any age who is removed involuntarily

from his home, housed by the State for three days, not informed

that he is free to leave, and questioned by two police detectives

in a closed interrogation room, would believe that his liberty was

constrained to the degree associated with formal arrest.27               We hold

that LaCresha was “in custody” for purposes of evaluating her

interrogation.

              b.   Involuntary Confession

      Next, we must determine whether the statement that LaCresha

gave while in custody was involuntary, making its introduction at

her   criminal     trial   violative    of   her   Fifth   Amendment    rights.

Although LaCresha’s statement was taken in violation of Texas law,

this alone did not automatically produce a violation of her Fifth

      27
       See United States v. Collins, 972 F.2d 1385, 1405 (5th
Cir. 1992)(“[T]he most obvious and effective means of
demonstrating that a suspect has not been taken into custody ‘is
for the police to inform the suspect that an arrest is not being
made and that the suspect may terminate the interview at
will.’”)(citing United States. v. Griffin, 922 F.2d 1343, 1349
(8th Cir. 1990)); United States v. Harrell, 894 F.2d 120, 124
n.1 (5th Cir. 1990)(“We agree with the defendant that a detention
of approximately an hour raises considerable suspicion,” though
declining to establish a bright-line rule for when a suspect’s
interrogation becomes custodial); United States v. Bengivenga,
845 F.2d 593, 600 (5th Cir. 1988)(holding that 90-second, routine
citizenship check at Mexican border did not constitute custodial
interrogation). Here, the act of the police in administering a
Miranda warning should confirm their own belief that LaCresha was
in custody.

                                        13
Amendment rights.28      Once we have concluded that a juvenile’s

interrogation was custodial, we determine whether such a suspect’s

confession is coerced or involuntary by examining the totality of

the circumstances surrounding the child’s interrogation.29           In

addition to the fact that the interrogation was conducted in

violation of state law, our examination includes consideration of

the   juvenile’s    “age,   experience,   education,   background,   and

intelligence, and into whether he has the capacity to understand

the warnings given him, the nature of his Fifth Amendment rights,

and the consequences of waiving those rights.”30       The Supreme Court

has admonished that the police are required to take special care to

ensure the voluntariness of a minor suspect’s confession:

      If counsel was not present for some permissible reason
      when an admission was obtained, the greatest care must
      be taken to assure that the admission was voluntary,
      in the sense not only that it was not coerced or
      suggested, but also that it was not the product of
      ignorance of rights or of adolescent fantasy, fright
      or despair.31

      28
       See Gagne v. City of Galveston, 805 F.2d 558, 560 (5th
Cir. 1986); United States v. Wilderness, 160 F.3d 1173, 1175
(7th Cir. 1998)(“Indiana would not have permitted [the juvenile
plaintiff’s] confession to be used in a state prosecution. . .
But . . .the voluntariness of a confession depends on public
officials’ compliance with constitutional norms, not on any rule
of state law.”).
      29
       Fare v. Michael C., 442 U.S. 707 (1979); Gachot v.
Stadler, 298 F.3d 414, 418 (5th Cir. 2002).
      30
       Fare, 442 U.S. at 725; Gachot, 298 F.3d at 418-19
(quoting Fare, 442 U.S. at 725).
      31
           In re Gault, 387 U.S. 1, 55 (1967).


                                   14
     Every factor weighed in our analysis militates against the

conclusion that LaCresha’s statement was voluntary.                At eleven

years of     age,   she   was   far   younger   than   the   fifteen-year-old

juvenile suspect whom we held to have voluntarily confessed in

Gachot v. Stadler.32        She had no experience with the criminal

justice system, had been held in the custody of the State for three

days, was unaccompanied by any parent, guardian, attorney, or other

friendly adult, and was found to have below-normal intelligence by

the court-appointed psychiatrist prior to her criminal trial, also

in contrast to the Gachot defendant.33

     LaCresha cannot be held to have knowingly and voluntarily

waived her rights to be represented by counsel and to remain

silent.34    Other than having LaCresha sign a Miranda card, and

     32
          298 F.3d at 416, 421.
     33
       Id. (noting that the defendant was accompanied by his
brother during the interrogation, voluntarily went to the police
station for questioning, and was there for approximately four
hours). Compare Fare, 442 U.S. at 726-27 (holding 16 1/2 year-
old juvenile voluntarily and knowingly waived his Fifth Amendment
rights during an interrogation as he had considerable experience
with the police, having a record of several arrests, sufficient
intelligence to understand the rights he was waiving, and was not
worn down by improper interrogation tactics or lengthy
questioning by trickery or deceit) with Haley v. Ohio, 332 U.S.
596 (1948) (holding that a 15-year-old who had been arrested at
midnight, taken to a police station and subjected to continuous
interrogation by a rotation of several police officers, without
counsel or friend, until he confessed to participating in a
robbery and shooting, had not voluntarily confessed).
     34
       See E.A.W. v. State, 547 S.W.2d 63, 64 (Tex. Civ. App. ——
Waco 1977, no writ)(holding that an eleven-year-old child cannot
knowingly, intelligently, and voluntarily waive her

                                       15
briefly     explaining    her    rights    to       her   at    the    outset    of   the

interrogation,      the   police    took       no   precautions        to   ensure    the

voluntariness of her statement, let alone “special care.”                             The

police made no effort to contact LaCresha’s adoptive parents, and

the shelter, which had assumed responsibility for her care, sent no

representative with her to the interrogation.                    LaCresha was never

told that she was free to leave or that she could call her adoptive

parents or any other friendly adult.                      In addition, the police

officers represented to LaCresha that they had already talked to

everyone in her family, that everyone “knew” what happened, and

that she could help her family only by telling the truth.                        We hold

that LaCresha’s statement was involuntary, and that its admission

at   trial    violated    her    Fifth     Amendment           right   against     self-

incrimination.

2.    Clearly Established Law

      To overcome a claim of qualified immunity, a plaintiff must

establish that the right an official is alleged to have violated

was “clearly established,” i.e., sufficiently clearly defined that

“a reasonable official would understand that what he is doing

violates that right.”35         Although there need not be prior case law

directly     on   point   for   a   constitutional          right      to   be   clearly


constitutional privilege against self-incrimination after
spending nine hours, from midnight to nine a.m., in a detention
facility, and without the guidance of a parent, guardian or
attorney).
      35
           Anderson v. Creighton, 483 U.S. 635, 640 (1987).

                                          16
established, the state of the law must be such that a reasonable

officer would be on notice that his actions could violate a

constitutional    right.36   Defendants   argue   that,   even   assuming

arguendo that clearly established law should have put them on

notice that their interrogation of LaCresha was custodial and that

her statement was not made voluntarily, no clearly established law

put them on notice that their actions could violate her Fifth

Amendment rights.

     Defendants assert that a reasonable officer would not have

understood that his actions could have violated LaCresha’s Fifth

Amendment rights because, as we discussed above, such a violation

requires that (1) officials coerce an involuntary statement from a

suspect and (2) this statement later be introduced against her at

trial.37     Therefore, because an officer cannot contemporaneously

interrogate a suspect unlawfully and violate a suspect’s Fifth

Amendment rights, we must determine whether clearly established law

should have alerted a reasonable official that his pre-trial

conduct, although perhaps a but-for cause of the violation of the

plaintiff’s trial rights, could proximately cause a violation of

her Fifth Amendment rights.

     In a perfect world, trial courts protect defendants’ Fifth

Amendment rights by excluding improperly obtained confessions or


     36
          Hope v. Pelzer, 536 U.S. 730, 741 (2002).
     37
          See Chavez v. Martinez, 538 U.S. 760, 770 (2003).

                                  17
statements.38     In this real-world case, however, the trial court

failed to protect LaCresha’s rights.              It is true that the officers

wrongfully elicited LaCresha’s confession during her interrogation

and that this confession was later wrongfully admitted at trial and

used against her, and ultimately resulted in her conviction; yet a

trial     judge   twice    heard   all      the     evidence   concerning    the

circumstances surrounding LaCresha’s confession and twice admitted

it into evidence. The defendants thus insist that, inasmuch as the

decision whether to admit a criminal defendant’s statement lies

within the discretion of the presiding judge at trial, that judge’s

decision    to    admit   LaCresha’s     confession     was    an   independent,

superseding cause of the violation of her Fifth Amendment rights.39

     38
       See Oregon v. Elstad, 470 U.S. 298, 307 (1985)(ruling
that failure to Mirandize a witness before his confession
automatically results in exclusion of the statement’s use in the
prosecution’s case in chief); United States v. Blue, 384 U.S.
251, 255 (1966) (“Even if we assume that the Government did
acquire incriminating evidence in violation of the Fifth
Amendment, Blue would at most be entitled to suppress the
evidence and its fruits if they were sought to be used against
him at trial”).
     39
       See Crowe v. County of San Diego, 303 F. Supp. 2d 1050,
1091-92 (S.D. Cal. 2004). The Crowe court also observed that it
would be unfair to subject to civil liability under § 1983 only
those police officers whose improper questioning produced
statements admitted at trial but exonerate those officers whose
questioning violated defendants’ civil rights more egregiously,
resulting in statements excluded by the trial court. 303 F.
Supp. 2d at 1092. We find this logic unpersuasive, as defendants
abused by the police during their interrogations may bring suit
for violation of their Fourteenth Amendment rights. See Chavez,
538 U.S. at 773-74; Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.
1985)(“Extracting an involuntary confession by coercion is a due
process violation.”)(citing Haynes v. Washington, 373 U.S. 503,
513-15) (1963) and Spano v. New York, 360 U.S. 315, 320-23

                                       18
Therefore,     contend    the    defendants,     because    their    improper

questioning could not have caused the violation of LaCresha’s Fifth

Amendment    rights,     they   should    not   be   held   liable   for   the

violation.40

     Section 1983 does require a showing of proximate causation,

which is evaluated under the common law standard.41            In cases like

this one, we read § 1983 against the background of tort liability

that makes a person liable for the natural consequences of his

actions.42     A corollary of these background tenets of tort law


(1959)); Duncan v. Nelson, 466 F.2d 939, 944-45 (7th Cir.), cert.
denied, 409 U.S. 894 (1972).
     40
       The defendants argue that the presiding judge or
prosecutor is responsible and therefore liable for the
constitutional violation; but, of course, judges and prosecutors
enjoy absolute immunity for their judicial decisions and
prosecutorial functions, respectively. Stump v. Sparkman, 435
U.S. 349, 356-57 (1978); Imbler v. Pachtman, 424 U.S. 409, 420
(1976). Whether an objectively reasonable officer could be
aware, as he was improperly obtaining a suspect’s statement, that
he could be violating that individual’s Fourteenth Amendment
substantive due process rights is a separate question that we do
not address, as LaCresha did not allege a violation of her
Fourteenth Amendment rights. See Chavez, 538 U.S. at 773
(2003)(“Our views on the proper scope of the Fifth Amendment’s
Self-Incrimination Clause do not mean that police torture or
other abuse that results in a confession is constitutionally
permissible so long as the statements are not used at trial; it
simply means that the Fourteenth Amendment’s Due Process Clause,
rather than the Fifth Amendment’s Self-Incrimination Clause,
would govern the inquiry in those cases and provide relief in
appropriate circumstances.”)(emphasis in original).
     41
          Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976).
     42
       Monroe v. Pape, 365 U.S. 167, 187 (1961), over-ruled on
other grounds, Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978)(holding that plaintiffs may sue
municipalities for civil rights violations using § 1983).

                                     19
relieves tortfeasors from liability if there exists a superseding

cause, or “an act of a third person or other force which by its

intervention prevents the actor from being liable for harm to

another which his antecedent wrongful act was a substantial factor

in bringing about.”43       Defendants advance that the trial judge’s

decision to admit LaCresha’s statement into evidence constitutes

such a superseding cause, and that, absent any allegation or proof

that they     endeavored    to    mislead   the   judge   into   admitting   an

involuntary     statement        at   trial,   they   cannot      have   acted

“unreasonably” according to clearly established law for purposes of

§ 1983 liability.

     Albeit in dicta, the Supreme Court has intimated that this

argument should not hold sway, at least with respect to false

arrest claims.     Although the Court in Malley v. Briggs conceded

that the appellant police officer’s argument that he could not have

proximately caused a defendant’s unlawful arrest by filing an

affidavit unsupported by probable cause was not before it on

appeal, the Court stated that it would not have been receptive to

this contention.44 Malley states that § 1983 should be read against

background tort law, which recognizes the liability of individuals

for the consequences of their acts:

          Petitioner has not pressed the argument that in
     a case like this the officer should not be liable

     43
          Restatement 2d of Torts § 440-41 (1965).
     44
          475 U.S. 335, 345 n.7 (1986).

                                       20
     because the judge’s decision to issue the warrant
     breaks the causal chain between the application for
     the warrant and the improvident arrest. It should be
     clear, however, that the District Court’s “no
     causation” rationale in this case is inconsistent with
     our interpretation of § 1983. As we stated in Monroe
     v. Pape, 365 U.S. 167, 187 (1961), § 1983 “should be
     read against the background of tort liability that
     makes a man responsible for the natural consequences
     of his actions.45

     One year after Malley, we implicitly endorsed this approach in

United States v. Burzynski Cancer Research Institute, holding that

Malley required us to reject a police officer’s “superseding cause”

arguments    and   examine     only   whether       a    reasonably       well-trained

officer    would   have   known       that    his       warrant    application     was

unsupported by probable cause.46             The following year, however, we

decided Gary v. Hand, a false arrest case in which we held that,

when a neutral intermediary, such as a justice of the peace,

reviews the facts and allows a case to go forward, such an act

“breaks the chain of causation.”47              We qualified our holding by

stating that “the chain of causation is broken only where all the

facts are     presented   to    the    grand    jury,      or     other    independent

intermediary where the malicious motive of the law enforcement

officials does not lead them to withhold any relevant information

from the independent intermediary.”48                   This holding in Gary was

     45
          Malley, 475 U.S. at 345 n.7.
     46
          819 F.2d 1301, 1309 (5th Cir. 1987).
     47
          Gary v. Hand, 838 F.2d 1420, 1428 (5th Cir. 1988).
     48
          Id. at 1427-28.

                                        21
consistent with other circuit precedent,49 yet we made no mention

of Burzynski or of the Supreme Court’s “proximate cause” footnote

in Malley.

       The rule of Gary v. Hand has since prevailed in this circuit

for   almost   two   decades.50   Even   though   Burzynski   appears   to

contradict Hand’s holding on the issue of superseding cause, the

earlier decision did not address the issue in depth, and we are

unwilling to disregard firmly ensconced circuit precedent in favor

of such a cursory analysis of Malley’s dicta.         A review of other

circuits’ case law addressing proximate cause when a plaintiff’s


      49
        See Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984)
(holding a mayor who had falsely sworn an arrest warrant, then
submitted the warrant to himself, as a magistrate, for issuance,
did not break the chain of causation because he did not submit
the warrant to a neutral party); Smith v. Gonzales, 670 F.2d 522,
526 (5th Cir. 1982) (holding that an officer who acted with
malice in procuring a warrant or a indictment will not be liable
if the facts supporting the warrant or indictment are put before
an impartial intermediary such as a magistrate or a grand jury,
for that intermediary’s ‘independent’ decision ‘breaks the causal
chain’ and insulates the initiating party); Rodriguez v. Ritchey,
556 F.2d 1185, 1193 (5th Cir. 1977)(en banc), cert. denied, 434
U.S. 1047 (1978).
      50
       See Shields v. Twiss, 389 F.3d 142, 150 (5th Cir.
2004)(“[O]nce facts supporting an arrest are placed before an
independent intermediary such as a . . . grand jury, the
intermediary’s decision breaks the chain of causation”. . .unless
“the deliberations of that intermediary were in some way tainted
by the actions of the defendants”)(internal citations omitted);
Gordy v. Burns, 294 F.3d 722, 728 (5th Cir. 2002)(reaffirming
Hand); Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994)(“It is
well settled that if facts supporting an arrest are placed before
an independent intermediary such as a magistrate or grand jury,
the intermediary’s decision breaks the chain of causation for
false arrest, insulating the initiating party.”)(citations
omitted).

                                   22
injury results from an independent decision-maker’s ruling also

reveals a fundamental tension between these primary tenets of tort

law: (1) An individual is liable for the reasonably foreseeable

consequences of his actions, and (2) an intervening decision of an

informed, neutral decision-maker “breaks” the chain of causation.51

     51
        Compare Kerman v. City of New York, 374 F.3d 93, 126 (2d
Cir. 2004)(holding that police officer could be held liable for
plaintiff’s loss of liberty after police officer wrongly sent
plaintiff to a mental hospital, even though the plaintiff’s
subsequent detention in the hospital resulted from the
independent judgment of the physicians. “Tort defendants,
including those sued under § 1983, are responsible for the
natural consequences of their actions.”)(citing, inter alia,
Malley v. Briggs, 475 U.S. 335 (1986)); Herzog v. Village of
Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002)(“[T]he ordinary
rules of tort causation apply to constitutional tort suits” after
a suspect was illegally forced to give blood and urinate as a
result of an illegal arrest)(internal citation omitted); Zahrey
v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000)(“[I]t is not readily
apparent why the chain of causation should be considered broken
where the initial wrongdoer can reasonably foresee that his
misconduct will contribute to an ‘independent’ decision that
results in a deprivation of liberty.”); Warner v. Orange County
Dep’t of Probation, 115 F.3d 1068, 1072-73 (2d Cir.
1996)(concluding that, as a sentencing judge’s adoption of
probation officers’ recommendation was entirely foreseeable, the
judge’s decision did not break the chain of causation with
respect to the probation officers’ liability under § 1983); and
Buenrostro v. Collazo, 973 F.2d 39, 45 (1st Cir. 1992)(holding
that, as “the Supreme Court has made it crystal clear that
principles of causation borrowed from tort law” apply to
constitutional torts, a jury “could conceivably find a causal
nexus between [an] unlawful arrest and [a] consequent
imprisonment,” even after an independent magistrate determined
that there was probable cause to detain the plaintiff)(citing
Malley, 475 U.S. at 345 n.7) with Egervary v. Young, 366 F.3d
238, 248 (3d Cir. 2004)(“To the extent that the common law
recognized the causal link between a complaint and the ensuing
arrest, it was in the situation where “misdirection” by omission
or commission perpetuated the original wrongful
behavior.”)(citing Hand, 838 F.2d at 1428); Townes v. City of New
York, 176 F.3d 138, 147 (2d Cir. 1999)(holding chain of causation
broken between police officers’ illegal search and seizure and

                                23
   In this circuit, it was not well-established at the time of

LaCresha’s interrogation that an official’s pre-trial interrogation

of a suspect could subsequently expose that official to liability

for violation of a suspect’s Fifth Amendment rights at trial.              We

hold    that,   as   in   the   analogous   context   of   Fourth   Amendment

violations, an official who provides accurate information to a

neutral intermediary, such as a trial judge, cannot “cause” a

subsequent Fifth Amendment violation arising out of the neutral

intermediary’s decision, even if a defendant can later demonstrate

that his or her statement was made involuntarily while in custody.52

       LaCresha has not identified, and we have not found, any

evidence in the record to indicate that the state judge who


plaintiff’s subsequent conviction and imprisonment); Smiddy v.
Varney, 665 F.2d 261, 266-68 (9th Cir. 1981)(holding police
officers not liable for damages once prosecutor made independent
decision to charge plaintiff); Duncan v. Nelson, 466 F.2d 939,
943 (7th Cir. 1972)(holding that no § 1983 cause of action exists
for violation of Fifth Amendment rights resulting from admission
into evidence of a coerced confession as officers did not
proximately cause the violation); Crowe v. County of San Diego,
303 F. Supp.2d 1050, 1092 (S.D. Cal. 2004) (“Given the roles and
obligations of prosecutors and judges and the independent nature
of these positions, a police officer could not reasonably know
that by obtaining a coerced confession he will cause a prosecutor
and/or a trial judge to violate a defendant’s Fifth Amendment
privilege against self-incrimination.”). See also Hector v.
Watt, 235 F.3d 154, 161 (3d Cir. 2000)(declining to reach the
question of whether proximate cause prevented a § 1983 plaintiff
from suing police officers for fabricating evidence as “there is
a great deal of tension in the caselaw about when official
conduct counts as an intervening cause.”).
       52
       We emphasize again that our analysis does not apply to
Fourteenth Amendment claims brought by plaintiffs against
officials that attack the lawfulness of the interrogation itself.
See Chavez v. Martinez, 538 U.S. 760, 773-74 (2003).

                                      24
presided over her juvenile trial failed to hear (or was prevented

from        hearing)      all   of   the        relevant   facts       surrounding     her

interrogation          before    deciding        to    admit     her     confession    into

evidence.          Armed with all those facts, that judge nevertheless

concluded that LaCresha was not “in custody” for purposes of

Miranda or Texas law governing the interrogation of minors, and

ruled       that    her    statement       to    the    police     was     voluntary   and

admissible.53 Like the state appellate court, we disagree with the

trial court’s ruling, yet we are constrained to hold that it

constituted a superseding cause of LaCresha’s injury, relieving the

defendants of liability under § 1983.                   This holding pretermits our

consideration whether she suffered a violation of a constitutional

right that was clearly established at the time, and whether a

reasonable official should have known that he was violating that

right.        Accordingly, we reverse the district court’s denial of

qualified immunity for the defendants on LaCresha’s Fifth Amendment

claim.

C.     State Law Civil Conspiracy Claim

       LaCresha has also asserted a claim under state law, contending

that the defendants conspired to deprive her of her Fifth Amendment

rights.        The elements of a civil conspiracy claim in Texas are:

“(1) two or more persons; (2) an object to be accomplished; (3) a

meeting of minds on the object or course of action; (4) one or more

       53
       In re L.M., 993 S.W.2d 276, (Tex. App.– Austin,
1999)(pet. denied).

                                                25
unlawful, overt acts; and (5) damages as the proximate result.”54

A plaintiff asserting such a claim must prove that the defendants

conspired to accomplish an unlawful purpose or used unlawful means

to accomplish a lawful purpose.55

       The    defendants    counter    that,    under   Texas    law,     they   are

officially immune from suit for civil conspiracy.56                        In this

interlocutory appeal, we have jurisdiction to hear the defendants’

claim of official immunity because Texas law, like the federal

doctrine, “provides a true immunity from suit and not a simple

defense      to   liability.”57       As    official    immunity    is    thus    an

affirmative defense, a state official seeking summary judgment on

such    grounds     “must   conclusively        prove   each    element    of    the

defense.”58

       54
            Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983).
       55
            Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996).
       56
       As the Texas Tort Claims Act does not waive the State’s
immunity for civil conspiracy suits or other intentional torts
committed by officials in their official capacity, the district
court correctly dismissed claims brought against the defendants
in their official capacities. TRST Corpus, Inc. v. Financial
Ctr., Inc., 9 S.W.3d 316, 322 (Tex. App. – Houston [14th Dist.]
1999, writ denied)(citing Tex. Civ. Prac & Rem. Code § 101.021
(2004), which enumerates the causes of action for which the state
has waived immunity, but not including civil conspiracy).
Accordingly, we address only state conspiracy claims brought
against the defendants in their individual capacities.
       57
       Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299
F.3d 395, 413 (5th Cir. 2002).
       58
            Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.
2000).

                                           26
      Government officials in Texas are officially immune from

liability for the performance of their (1) discretionary duties (2)

in good faith (3) as long as they are acting within the scope of

their authority.59        A discretionary function —— as distinguished

from a ministerial duty, which requires rote obedience to orders or

performance of a function to which the actor has no choice ——

involves personal deliberation, decision and judgment.60 An officer

acts in good faith if a reasonably prudent officer, under the same

circumstances, could have believed that his actions were correct.61

An   officer     acts    within   the   scope   of   his   authority   when   he

discharges the duties generally assigned to him.62

      The district court ruled, and LaCresha does not dispute, that

the remaining defendants were performing discretionary functions

and acting within the scope of their authority vis-à-vis her

interrogation. That leaves only the question whether they acted in

good faith.

      To obtain official immunity on summary judgment, an official

must prove that a reasonably prudent official might have believed

that his action was appropriate under the circumstances.63             Even if

      59
           City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994).
      60
           Id. at 654 (citation omitted).
      61
           Id. at 656.
      62
           Id. at 658.
      63
           Id.

                                        27
an official’s actions were taken negligently, that would not be

sufficient to defeat a showing of good faith.64             The test for good

faith is objective and is substantially derived from the test for

good faith in a qualified immunity claim for federal constitutional

violations.65

     In light of our holding that the defendants are immune from

prosecution for LaCresha’s Fifth Amendment constitutional claim

because    they   did   not     act   unreasonably     according    to   clearly

established law, we also determine, by conducting the analogous

state law inquiry under Texas state law,66 that immunity bars

LaCresha’s civil conspiracy claim.            As we have now determined, for

purposes of the Fifth Amendment inquiry, that the officers did not

conceal from      the   Texas    trial   court   any   of   the   circumstances

surrounding LaCresha’s interrogation and, therefore, that they did

not cause the violation of her rights, we are constrained to hold

that they acted “in good faith” for purposes of Texas official

immunity.     A reasonable officer, under the circumstances, could

have believed that what he was doing would not violate a suspect’s

Fifth Amendment rights —— certainly, if none of the officials could

cause a violation of those rights, none could conspire to cause

such a violation, particularly in view of our determination that

     64
          Id. at 655.
     65
       Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299
F.3d 395, 413 (5th Cir. 2002).
     66
          See Chambers, 883 S.W.2d at 656.

                                         28
the officials properly presented evidence of their interrogation of

LaCresha to the Texas trial court.          Therefore, the defendants are

entitled to immunity from LaCresha’s state law conspiracy claim.

       Further, our determination that the defendants did not commit

an actionable violation with respect to LaCresha’s Fifth Amendment

violation bars a claim of civil conspiracy based on that violation,

as “[g]enerally, if an act by one person cannot give rise to a

cause of action, then the same act cannot give rise to a cause of

action if done pursuant to an agreement between several persons.”67

Although LaCresha did suffer a violation of her constitutional

rights, our determination that none of the state officials could

have    proximately    caused   this   violation   means   that   none   have

committed a tortious act.        As we conclude that LaCresha’s claims

against these defendants are unavailing, we reverse the district

court, and remand for entry of summary judgment in favor of the

defendants.

       The    importance   of   deterring    the   improper   obtaining    of

confessions, however, cannot be gainsaid. “A deliberate, voluntary

confession of guilt is among the most effectual proofs in the law,

and constitutes the strongest evidence against the party making it

that can be given of the facts stated in such confession.”68

Justice White called a voluntary confession the most damaging form

       67
       Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 95
(Tex. App. —— Corpus Christi 1992, writ dism’d w.o.j.).
       68
            Hopt v. Utah, 110 U.S. 574, 584-85 (1884).

                                       29
of evidence and noted that “[e]ven the testimony of an eyewitness

may   be     less   reliable   than   the   defendant’s    own   confession.”69

“Confession evidence (regardless of how it was obtained) is so

biasing that juries will convict on the basis of confession alone,

even when no significant or credible evidence confirms the disputed

confession      and   considerable    significant    and   credible   evidence

disconfirms it.”70

       A voluntary confession merits credence “because it is presumed

to    flow from the      strongest    sense   of   guilt.”71     In   diametric

opposition, an involuntary confession constitutes evidence entitled

to little weight, as it is likely to be unreliable.72

       69
       Bruton v. United States, 391 U.S. 123, 140 (1968) (White,
J., dissenting).
       70
       Stephen A. Drizin & Richard A. Leo, The Problem of False
Confessions in the Post-D.N.A. World, 82 N.C.L. Rev. 891, 923
(2004). “Regardless of how often police elicit confessions from
the innocent, the social science literature strongly suggests
that interrogation-induced false confessions are highly likely to
lead to the wrongful conviction of the innocent, perhaps more so
than any other type of erroneous evidence. This is due to the
strong effect that confession evidence exerts on the perceptions
and decision-making of criminal justice officials and lay jurors.
With the exception of being captured during the commission of a
crime (whether by physical apprehension or electronically on
videotape), a confession is the most incriminating and persuasive
evidence of guilt that the State can bring against a defendant.
It therefore stands to reason that with the exception of being
falsely captured during the commission of a crime, a false
confession is the most incriminating and persuasive false
evidence of guilt that the State can bring against a defendant.”
Id. at 921.
       71
            Hopt, 110 U.S. at 584.
       72
       Jackson v. Denno, 378 U.S. 368, 385-86 (1964); In re
Gault, 387 U.S. 1, 45 (“The principle, then, upon which a

                                       30
                 The privilege against self-incrimination is,
            of course, related to the question of the
            safeguards necessary to assure that admissions or
            confessions are reasonably trustworthy, that they
            are not the mere fruits of fear or coercion, but
            are reliable expressions of the truth. . .coercion
            is thought to carry with it the danger of
            unreliability.73

Involuntary confessions also affront society’s “deep-rooted feeling

that    . . in the end, life and liberty can be as much endangered

from illegal methods used to convict those thought to be criminals

as from the actual criminals themselves.”74             These principles are

doubly true in cases such as this one, in which the suspect is a

young child whose statements are more likely to be the product of

“fear, ignorance, fantasy, or despair.”75

       Nonetheless,     the   independent    roles      of   police    officers,

prosecutors,      and   judges   operate    in   this    context      to   prevent

individuals who have suffered violations of their Fifth Amendment

rights from recovering for their damages, absent a showing that a

neutral intermediary, such as a judge, did not have all pertinent

information surrounding an interrogation before him when deciding

a confession’s admissibility.       Therefore summary judgment in favor

of the defendants is appropriate.


confession may be excluded is that it is, under certain
conditions, testimonially untrustworthy. . .”)(emphasis in
original)(quoting 3 Wigmore, Evidence § 822 (3d ed. 1940)).
       73
            In re Gault, 387 U.S. at 47.
       74
            Spano v. New York, 360 U.S. 315, 320-21 (1959).
       75
            In re Gault, 387 U.S. at 55.

                                     31
                         III.   CONCLUSION

     As LaCresha cannot demonstrate that the acts of the defendants

in obtaining her confession proximately caused the violation of her

Fifth Amendment rights, we hold that she may not maintain against

the defendants either a claim under § 1983 for a constitutional

violation or civil conspiracy claim under Texas law.

REVERSED and REMANDED.




                                 32
