                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 25 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ART TOBIAS,                                     No.    18-56245

                Plaintiff-Appellee,             D.C. No.

 v.                                             2:17-cv-01076-DSF-AS

DANIEL EAST,
                                                MEMORANDUM*
                Defendant-Appellant,

and
CITY OF LOS ANGELES; et al.,

                Defendants.


ART TOBIAS,                                     No.    18-56360

                Plaintiff-Appellee,             D.C. No.

 v.                                             2:17-cv-01076-DSF-AS

MICHAEL ARTEAGA; et al.,

                Defendants-Appellants,

and
CITY OF LOS ANGELES; et al.,

                Defendants.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted October 15, 2019
                                Pasadena, California

Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District
Judge.

      In these consolidated interlocutory appeals,1 Los Angeles School Police

Officer Daniel East and Los Angeles Police Department Detectives Michael

Arteaga, Jeff Cortina, John Motto, and Julian Pere challenge the district court’s

order denying them qualified immunity on Art Tobias’s claims under 42 U.S.C.

§ 1983. We vacate in part, affirm in part, and reverse in part.

      1.      “[O]fficers are entitled to qualified immunity under § 1983 unless (1)

they violated a federal . . . constitutional right, and (2) the unlawfulness of their

conduct was clearly established at the time.” District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018) (internal quotation marks omitted). Our jurisdiction over

these interlocutory appeals turns on the collateral order doctrine, which permits

interlocutory review of whether the district court committed an error of law in

denying qualified immunity but not of whether it erred in finding a genuine dispute



      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
      1
          We consolidate these appeals for purposes of decision.

                                            2
of material fact. Mitchell v. Forsyth, 472 U.S. 511, 527–30 (1985); Isayeva v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th Cir. 2017). We cannot

adequately assess our jurisdiction without a clear understanding of the district

court’s basis for denying qualified immunity. Maropulos v. Cty. of Los Angeles,

560 F.3d 974, 975 (9th Cir. 2009) (per curiam).

      Here, we cannot determine from the district court’s order why it denied

qualified immunity to Officer East on each of the causes of action asserted against

him. The district court did not specifically mention East in its discussion of several

of the causes of action or in its brief qualified immunity analysis. In fact, it is not

clear whether the district court even analyzed some of the claims asserted against

East. For example, the district court granted summary judgment in favor of

Detective Motto on the claims arising from the interrogation because of his

“limited involvement” in it. But while East was not even present at the

interrogation, it appears that the district court’s order left the interrogation-related

claims against him intact.

      We therefore vacate the denial of qualified immunity as to East and remand

for the district court to reconsider, on a claim-by-claim basis, whether East is

entitled to qualified immunity. We emphasize that the presence of disputed facts

does not preclude a finding of qualified immunity. Instead, the district court

should determine on remand whether the facts taken in the light most favorable to


                                            3
Tobias show that East violated a clearly established constitutional right. See Tolan

v. Cotton, 572 U.S. 650, 655–57 (2014) (per curiam).

         2.   On the claims against Detectives Arteaga, Cortina, Motto, and Pere

(Defendants),2 we have jurisdiction to determine whether the facts viewed in the

light most favorable to Tobias show that Defendants violated Tobias’s clearly

established constitutional rights. Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir.

2016).

      3.      Defendants appeal the district court’s denial of qualified immunity

solely with respect to Tobias’s claims arising from his interrogation. The relevant

causes of action in the operative complaint are (1) a Fifth Amendment claim

arising from the use at Tobias’s trial of inculpatory statements that allegedly

(a) were taken in violation of Tobias’s Miranda rights, and (b) were involuntary

(Count I); (2) a Fourteenth Amendment substantive due process claim alleging that

Defendants used interrogation techniques that “shocked the conscience” (Count II);

and (3) a Fourteenth Amendment due process claim alleging, in part, that

Defendants “fabricated evidence”—including, among other things, “the substance




      2
        Detective Motto is an appellant only with respect to Tobias’s fabrication-
of-evidence claim. We use the generic term “Defendants” to refer to the appellants
relevant to each claim—all four detectives for the fabrication-of-evidence claim
and only Detectives Arteaga, Cortina, and Pere for the other claims.

                                          4
of Plaintiff’s oral confession” (Count III).3 We conclude that the district court

properly denied qualified immunity on the Miranda claim, but that it erred in

denying qualified immunity on all other interrogation-related claims.4

          a.   The district court correctly denied qualified immunity on Tobias’s

claim that Defendants violated his Fifth Amendment right to counsel by continuing

his custodial interrogation after he requested an attorney and then using the

resulting confession against him in his criminal case. See Davis v. United States,

512 U.S. 452, 458–59 (1994); Edwards v. Arizona, 451 U.S. 477, 484–85 (1981).

Tobias’s statement—“Could I have an attorney? Because that’s not me”—was an

unequivocal invocation of his right to counsel under clearly established law. See

Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (“Can I get an attorney right

now, man?” was unequivocal); United States v. De la Jara, 973 F.2d 746, 750 (9th

Cir. 1992) (“Can I call my attorney?” was unequivocal); Smith v. Endell, 860 F.2d

1528, 1529 (9th Cir. 1988) (“Can I talk to a lawyer?” was unequivocal). The

immaterial fact that Tobias used “could” rather than “can” in requesting an

attorney does not make that request any less unequivocal, and no reasonable officer



      3
        Count III also alleged a variety of additional misconduct other than the
fabricated confession, but Defendants challenge the district court’s denial of
qualified immunity solely with respect to those issues relating to the interrogation.
      4
        Judge Wardlaw dissents, infra, from the conclusion that the district court
erred in denying qualified immunity on any of the interrogation-related claims.

                                           5
could conclude otherwise. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per

curiam).

      b.     The district court erred in denying qualified immunity with respect to

Tobias’s claims that Defendants obtained and used an involuntary confession in

violation of his Fifth Amendment right against self-incrimination and that

Defendants violated Tobias’s due process rights by using interrogation techniques

that shock the conscience.

      (i).   “A coercive interrogation exists when the totality of the circumstances

shows that the officer’s tactics undermined the suspect’s ability to exercise his free

will,” Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003)

(citation omitted), and a Fifth Amendment violation occurs when an officer

coerces a suspect to provide a confession that is subsequently used in criminal

proceedings against that suspect, Crowe v. County of San Diego, 608 F.3d 406,

430–31 (9th Cir. 2010). In determining whether a statement was involuntary,

“[c]ourts . . . often consider the following factors: the youth of the accused, his

intelligence, the lack of any advice to the accused of his constitutional rights, the

length of detention, the repeated and prolonged nature of the questioning, and the

use of physical punishment such as the deprivation of food or sleep.” United

States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). Even if Tobias’s

confession were to be deemed involuntary under these standards—a question we


                                           6
do not reach—qualified immunity would still apply unless the facts available to the

Defendants at the time they acted would have made clear to any reasonable police

officer that Tobias’s statement was involuntary. See Hernandez v. Mesa, 137

S. Ct. 2003, 2007 (2017) (“qualified immunity analysis thus is limited to ‘the facts

that were knowable to the defendant officers’ at the time they engaged in the

conduct in question”) (quoting White v. Pauly, 137 S. Ct. 548, 550 (2017)); see

also City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (“An officer cannot

be said to have violated a clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the defendant’s shoes would

have understood that he was violating it.”) (emphasis added) (citations and internal

quotation marks omitted); Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir.

2009) (although Fifth Amendment claim requires subsequent use of statement in

criminal proceedings, focus of § 1983 suit against officer is on the circumstances

of the interrogation that preceded “turn[ing] over the allegedly coerced statements

to prosecutors”).

      Tobias failed to meet this demanding standard. See Romero v. Kitsap Cty.,

931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the

right allegedly violated was clearly established at the time of the alleged

misconduct.”). Although the interrogating officers committed a clear-cut

Miranda/Edwards violation, that fact alone is not sufficient to establish that the


                                          7
resulting confession was involuntary. Bradford v. Davis, 923 F.3d 599, 616 (9th

Cir. 2019) (“statements taken in violation of Edwards … are not presumed to be

involuntary by virtue of the Edwards violation alone”). Considered against the

controlling precedent that has found coercion in custodial interrogation, the

objective circumstances of Tobias’s interrogation, viewed in the light most

favorable to him, were not such that any reasonable police officer would have

realized that the Fifth Amendment right against compelled self-incrimination was

being violated.

      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.

      Like the Fourth Amendment prohibition of excessive force, the Fifth


                                          8
Amendment protection against the use of involuntary statements at a criminal trial

is one that involves “an area of the law ‘in which the result depends very much on

the facts of each case.’” Kisela, 138 S. Ct. at 1153 (citation omitted); see

Haswood, 350 F.3d at 1027 (courts employ “no ‘talismanic definition’ of

voluntariness,” but instead consider the “totality of the circumstances” of the

interrogation); see also supra at 6 (listing factors considered). Consequently, just

as in excessive force cases, “[s]pecificity” is important here, because “‘it is

sometimes difficult for an officer to determine how the relevant legal doctrine’”—

here, the law against coerced confession—“‘will apply to the factual situation the

officer confronts.’” Kisela, 138 S. Ct. at 1152 (citation omitted). As a result, a

plaintiff seeking to defeat qualified immunity must establish that “any reasonable

official in the defendant[s’] shoes would have understood” that the particular

circumstances of the specific interrogation were impermissibly coercive under the

then-existing case law. Id. at 1153 (citation and internal quotation marks omitted)

(emphasis added); see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The

qualified immunity standard gives ample room for mistaken judgments by

protecting all but the plainly incompetent or those who knowingly violate the

law.”) (citation and internal quotation marks omitted).

      Here, the particular circumstances of the interrogation do not present the

same sort of confluence of features that we have previously held to be coercive.


                                           9
Cf., e.g., Taylor v. Maddox, 366 F.3d 992, 1015–16 (9th Cir. 2004) (confession

was clearly involuntary where 16-year-old suspect was arrested late at night,

questioned until 3:00 AM, threatened with a jab to the face, and had his repeated

requests for counsel denied), overruled on other grounds by Murray v. Schriro,

745 F.3d 984, 999–1000 (9th Cir. 2014); Gladden v. Holland, 366 F.2d 580, 582

(9th Cir. 1966) (finding coercion where officers ignored a request for counsel but

also conducted the interrogation “throughout the night” and called in alleged rape

victims to view the suspect). On the contrary, they appear to be less coercive than

other cases in which we have found that coercion had not been established. See,

e.g., Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (noting that coercion is

not established where police merely indicate that a cooperative attitude would

benefit a minor suspect); Cunningham, 345 F.3d at 810 (finding no coercion where

interrogation went for eight hours without a break, officers continued to question

the suspect after claims of innocence, and officers played on the suspect’s fear of

prison). Because it would not have been apparent to any reasonable officer that the

circumstances of this specific interrogation were unconstitutional, the officers were

entitled to qualified immunity on Tobias’s claim that the officers violated his Fifth

Amendment right against compelled self-incrimination.5


      5
         Whether Tobias’s remaining Fifth Amendment interrogation claim—that
his statement was taken in violation of Edwards and used at a criminal trial—is


                                         10
      (ii).   The district court also erred in denying qualified immunity to the

detectives on the claim that the interrogation violated Tobias’s Fourteenth

Amendment right to substantive due process. See Stoot, 582 F.3d at 928.

Although this claim (unlike the Fifth Amendment claim) does not require a

showing that the confession was used against Tobias, “[t]he standard . . . is quite

demanding,” requiring something akin to “police torture or other abuse” or

comparable conduct that “shocks the conscience.” Id. (citations and internal

quotation marks omitted). For reasons similar to those discussed above with

respect to Tobias’s coerced confession claim, we conclude that, even construing

the facts in the light most favorable to Tobias, he failed to show that any

reasonable officer would have understood that the objective circumstances of the

interrogation here met the demanding “shocks the conscience” standard.

      The facts of this case are materially different from previous cases in which

we have found a substantive due process violation for police conduct during an

interrogation. See, e.g., Cooper v. Dupnik, 963 F.2d 1220, 1248–50 (9th Cir. 1992)

(en banc) (finding a substantive due process violation when officers subjected a

suspect to “hours of mistreatment and what can fairly be described as sophisticated

psychological torture” and intentionally ignored the suspect’s repeated invocations



cognizable under § 1983 is not at issue in this interlocutory appeal, and we express
no view on it.

                                          11
of his right to counsel and right to silence and for the express “purpose of making

it difficult, if not impossible, for [the defendant] to take the stand in his own

defense”), overruled on other grounds, Chavez v. Martinez, 538 U.S. 760, 773

(2003). Tobias’s reliance on Crowe, 608 F.3d 406, is misplaced. 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. Id. at 431–32. Because

controlling precedent does not establish “beyond debate” that the officers’ conduct

here shocks the conscience, the officers are entitled to qualified immunity.

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

      4.     Defendants also challenge the district court’s denial of qualified

immunity as to Tobias’s fabrication-of-evidence claim (asserted under Devereaux

v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc)), but only to the extent that the

claim is based on the contention that Tobias’s confession is the asserted fabricated

evidence. Defendants are entitled to qualified immunity on this issue because we

have held that coerced confession claims are not cognizable under a Devereaux

fabrication-of-evidence theory. See Hall v. City of Los Angeles, 697 F.3d 1059,

1069–70 (9th Cir. 2012).




                                           12
Each party shall bear its own costs.

VACATED IN PART, AFFIRMED IN PART, REVERSED IN PART.




                                  13
                                                                            FILED
Tobias v. East, Nos. 18-56245+                                               FEB 25 2020
                                                                        MOLLY C. DWYER, CLERK
WARDLAW, Circuit Judge, dissenting in part:                               U.S. COURT OF APPEALS


      I respectfully dissent from the majority’s conclusion that the interrogation

tactics used by Detectives Michael Arteaga, Jeff Cortina, and Julian Pere did not

violate clearly established Fifth and Fourteenth Amendment law. 1 The detectives

in this case cursed at Art Tobias (then 13 years old), 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.

      “It has . . . long been established that the constitutionality of interrogation

techniques is judged by a higher standard when police interrogate a minor.”

Crowe v. Cty. of San Diego, 608 F.3d 406, 431 (9th Cir. 2010). 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. Id. at 432. That is precisely what Detectives

Arteaga, Cortina, and Pere did here.




      1
          I concur in Sections 1, 2, 3(a), and 4 of the memorandum disposition.
                                             1
      Crowe clearly established that the detectives’ conduct violated the

Fourteenth Amendment. And 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. For these reasons, I would affirm

the district court’s conclusion that Detectives Arteaga, Cortina, and Pere are not

entitled to qualified immunity on the coercive interrogation and substantive due

process claims.




                                          2
