ALERT Training Bulletin
Potential Civil Liability for Coercive Interrogations
by James P. Manak *
Few interrogators think about the possibility of civil liability when going about their work. The focus of their activity is rightly about the admissibility in a criminal trial or disciplinary proceeding of any confession or incriminating statements they may obtain from a subject. This means adherence to the often-complex rules of Fifth and Sixth Amendment rights of suspects or those subject to administrative discipline.
Understandably overlooked is the possibility of civil litigation over the techniques employed to obtain statements. Two recent cases illustrate this issue in the context of civil rights actions. They point out that while the potential for civil liability exists, the courts have placed the standard for plaintiffs in civil rights cases at a high level. Basically, the courts have held that unless improper interrogation conduct is “shocking to the conscience,” liability will not result under the federal civil rights act, 42 U.S.C. § 1983. This is a fact-driven inquiry in each case.
In Tinker v. Beasley, 429 F.3d 1324 (11th Circuit), decided November 10, 2005, an arrestee brought an action against police officers, alleging that their questioning of her concerning a murder violated her substantive due process rights and constituted the Alabama tort of outrage.
The court held that the interrogating officers’ conduct in falsely informing a suspect about the status of her legal representation in the context of an otherwise already coercive interrogation which did not produce a confession did not shock the conscience so as to violate the suspect’s substantive due process rights. It also held that the officer’s conduct, falsely informing a suspect about the status of her legal representation, though generally reprehensible, was not sufficiently outrageous to meet Alabama’s standards for the tort of outrage.
“This action arises out of Tinker’s arrest, incarceration, and questioning on suspicion of murder. At the time of her arrest, Tinker was a twenty-four year-old mother of three young children. She worked in a hospital kitchen in Greensboro, Alabama. Beasley and Watson were agents of the Alabama Bureau of Investigation (‘ABI’) who questioned Tinker in relation to the shooting of a bank teller in the course of a robbery. Before the bank teller died at the scene, she had identified Tinker as the shooter.
“Tinker was arrested at her home the same afternoon and taken to the ‘old jailhouse’ in Greensboro, where she was kept in a holding area. . . . Later that evening, she was taken to the Hale County jail. Patrick Arrington, an attorney called upon by her family to represent her, came to see her at some point that evening. With Arrington present, Tinker was then interviewed by Beasley. Beasley has alleged that Arrington informed him after this first interview that he was no longer representing Tinker. Beasley told Watson that Tinker was no longer represented. Arrington asserts that he never said he no longer represented Tinker, and that, to the contrary, he had instructed the investigators specifically that Tinker should not be questioned in his absence.
“The next day, Tinker made an initial appearance. After she returned from the courthouse, Tinker was fingerprinted by Watson. Arrington was not present at the courthouse or later at the jail. Watson asserts that Tinker began asking him questions about her case, and appeared to want to make a statement. When Tinker asked for her lawyer, Watson told her that her lawyer no longer represented her. . . . Tinker then signed a waiver-of-rights form and gave a statement in which she described how she knew the victim of the shooting and admitted that she had been at the bank on the day of the shooting.
“Tinker asserts that throughout this and the following days of her incarceration, Beasley and Watson interviewed her repeatedly, telling her that her lawyer had ‘bailed out’ on her, that they were all she had to get her out of trouble, that she would never see her children again unless she confessed, and that she had two options: the electric chair or life in prison. . . . She says that they referred to her ‘sizzling’ and ‘frying’ in the electric chair, and that they further pressured her through references to her recently deceased mother. . . . Tinker also asserts that at some point during one of the interviews, Beasley told her that if her father or any other family members went to a lawyer on her behalf ‘they would fuck it up for [her].’
“Two days after the shooting, Tinker agreed to a polygraph exam in the absence of Arrington. Sometime later that day, Arrington learned about the polygraph and the interviews and complained to Beasley and Watson about both. Tinker was finally released late on the evening of the fourth day because she had been eliminated as a suspect by the authorities’ capture of the actual perpetrator of the crimes. Tinker never confessed to any crime or otherwise incriminated herself. . . .”
A civil rights action with an additional state tort claim was then filed.
The court said: “In the context of involuntary confessions, the Supreme Court has observed that ‘certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.’ Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985).
The Court more explicitly identified the liberty interest here at issue in Chavez v. Martinez, confirming that, under some circumstances, coercive interrogation alone may violate a suspect’s right to substantive due process, even when no self-incriminating statement is used against the person interrogated. See 538 U.S. 760, 780, 123 S.Ct. 1994, 2008, 155 L.Ed.2d 984 (2003). Such a violation will be recognized, however, only where the specific conduct alleged rises to a level of coercive interrogation that ‘shocks the conscience.’ County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 1717, 140 L.Ed.2d 1043 (1998).
“The Supreme Court and our circuit have offered scant guidance as to what conduct shocks the conscience. The Supreme Court found a conscience-shocking violation of substantive due process where police directed an emergency room doctor to extract against a suspect’s will his stomach contents, which included heroin-filled, capsules. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 188 (1952).
On the other hand, in Moran v. Burbine, the Court found that failure of police to inform a murder suspect of telephone calls from an attorney, who had been contacted by his sister, before continuing an interrogation, did not undermine the validity of the suspect’s waiver of his Miranda rights or shock the conscience when that suspect had never asked for an attorney, was unaware that his sister had called one, and had not been formally charged. 475 U.S. 412, 415, 428, 432-33, 106 S.Ct. 1135, 1138, 1145, 1147, 89 L.Ed.2d 410 (1986).
The Court in Moran concluded:
“We do not question that on facts more egregious than those presented here police deception might rise to a level of a due process violation.’ Id. at 432, 106 S.Ct. at 1147. . . .
“Tinker argues that, because the conduct of which she complains would be a constitutional violation in a criminal procedure context, it is also necessarily a conscience-shocking constitutional violation in the context of substantive due process. Beasley and Watson correctly respond that the two inquiries focus on different questions. The coerced-confession inquiry looks at the state of mind of the suspect —’whether [a suspect’s] will was overborne’ by the totality of the circumstances surrounding the giving of a confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The shocks-the-conscience inquiry, in contrast, looks at the objective unreasonableness of the officers’ conduct. Because we are making the second of the two inquiries, we must focus on Beasley and Watson’s conduct asking only whether this particular conduct—falsely informing a suspect about the status of her legal representation in the context of an otherwise already coercive interrogation—shocks the conscience.
“Although this is arguably a close case in that it implicates Tinker’s right to counsel, Beasley and Watson were trying to solve a murder and bank robbery case in which Tinker had been named by a deceased victim as a shooter. When Tinker asked for her attorney, the officers falsely told her that he had abandoned her, convinced her to sign a waiver-of-rights form, and proceeded to interrogate her multiple times over the course of three days. Although the bank teller’s identification of Tinker later proved to have been made in error, the officers were justified in believing they had the right person in custody at the time of the interrogation. Accordingly, although this situation presents slightly ‘more egregious’ circumstances than those described in Moran, we are not prepared to find the officers’ conduct ‘sufficiently arbitrary for constitutional recognition as a potentially viable substantive due process claim.’ See Moran, 475 U.S. at 432, 106 S.Ct. at 1147’ Carr, 338 F.3d at 1271.
“This case falls more in line with those cases in which police misconduct is untoward and upsetting, and yet does not rise to a level that shocks the conscience. See Lewis, 523 U.S. at 855, 118 S.Ct. at 1721 (concluding that ‘[r]egardless whether [initiating a high-speed automobile chase in heavy traffic] offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practice, it does not shock the conscience, and [defendants] are not called upon to answer for it under § 1983’); . . . Accordingly, we reverse the order of the district court and find officers Beasley and Watson are entitled to qualified immunity as to Tinker’s § 1983 substantive due process claim.
“[We next examine] whether Tinker established outrage under Alabama law . . .
“To establish outrage, Tinker must show that (1) Beasley and Watson ‘either intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from their conduct;’ (2) the conduct in question ‘was extreme and outrageous.’ and (3) the ‘conduct caused emotional distress so severe that no reasonable person could be expected to endure it.’ Stabler v. City of Mobile, 844 So.2d 555, 560 (Ala. 2002). ‘By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’ American Road Service Co. v. Inmon, 394 So.2d 361, 365 z9Ala. 1980). Thus ‘outrage is a very limited cause of action that is available only in the most egregious circumstances.’ Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041, 1044 (Ala. 1993).
“We find the officers’ conduct, though generally reprehensible, not outrageous enough to meet Alabama’s standards for this tort. Having found no tort sufficiently alleged, there is no need to consider the applicability of state-agent immunity.”
In the second recent decision on this same issue, McConkie v. Nichols, 392 F.Supp.2d 1 (D.Me. 2005), after a reversal of his conviction for unlawful sexual contact with a minor and acquittal upon retrial, the former defendant brought a civil rights action against a police detective, alleging that the detective’s lie during interrogation had induced the inmate’s false confession.
The court held that evidence that the detective may have misled the suspect, during an allegedly coercive interrogation, by telling him that his statements would remain confidential, that the charges were not serious, and that they would lead to little or no consequences, did not “shock the conscience,” as a basis for a substantive due process claim under the federal civil rights act, relating to the elicitation of a false confession.
The United States Supreme Court has in the past permitted a degree of trickery and deceit in interrogation cases so long as such techniques do not overbear the will of the suspect and result in an involuntary confession.
To avoid the result of suppression and the possibility of subsequent civil litigation (which itself is costly even if the plaintiff does not prevail), a few common-sense rules should be followed:
• Misrepresentations to a suspect may be permissible but should not involve untrue statements relating to the constitutional right to counsel and the privilege against self-incrimination.
• The use of manufactured (false) physical evidence, such as a purported but fabricated written statement of a witness incriminating the defendant, or a fabricated DNA lab report, should be avoided, in part because it may find its way into the judicial process and thus involve the court in a falsehood (judicial integrity doctrine requires suppression of confession).
• Physically abusive or coercive actions by the police (as opposed to psychological ploys) will come close to, or establish, the “shocks the conscience” test in civil litigation as well as lead to a finding of involuntariness in criminal proceedings.
It would be desirable if a single rule could be devised to govern the admissibility of evidence in the criminal context and a defense to all civil litigation. Unfortunately these cases are always fact-bound. Seasoned and well-trained interrogators know where the line between acceptable and unacceptable conduct lies. A review of decided cases is the best approach to training in this area, but as to the officer actively involved in the heat of an actual interrogation, who is trying to avoid potential problems, one is reminded of the words of Supreme Court Justice Potter Stewart on the definition of obscenity under the First Amendment, “. . . I know it when I see it.”
This issue of Alert was written for John E. Reid & Associates, Inc., providers of training – including the “Reid Technique of Interviewing and Interrogation” ®
* Mr. Manak is the publisher of Law Enforcement Legal Review. You can visit the LELR web site at: http://www.lelp.com He is also Amicus Advocate for Americans for Effective Law Enforcement; Adjunct Counsel at the Center for Public Safety, Northwestern University, Evanston, Illinois; Adjunct Professor of Law at John Marshall Law School, Chicago, Illinois; and has served as consultant to the National District Attorneys Association since 1967. Mr. Manak is the present and former author/editor of several law enforcement publications, including Criminal Law and Its Administration (6th Ed. 1997), coauthored with professor Fred E. Inbau; the Illinois Law of Criminal Investigation; the Law Enforcement Legal Defense Manual; and Case Commentaries and Briefs formerly published by the National District Attorneys Association.
© 2006 by AELE and James P. Manak. This bulletin may be freely reproduced, but not for commercial purposes.