CA. Attorneys for Criminal Justice v. Butts, 97-56499

• Citation: 195 F.3d 1039
• Decision Date: 07 December 1998
• Docket Number: No. 97-56510,No. 97-56499,97-56499,97-56510
• Parties: (9th Cir. 1999) CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE; CRIMINAL COURTS BAR ASSOCIATION; JAMES McNALLY; JAMES JOHNSON BEY, Plaintiffs-Appellees, v. JAMES T. BUTTS, City of Santa Monica Chief of Police; THE CITY OF SANTA MONICA; RAY H. COOPER; SHANE TALBOT, Defendants-Appellants, and WILLIE L. WILLIAMS, Chief of Police; CITY OF LOS ANGELES; RAYMOND BENNETT; MICHAEL CROSBY, Defendants. CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, Plaintiff, JAMES McNALLY; JAMES JOHNSON BEY, Plaintiffs-Appellees, v. JAMES T. BUTTS, City of Santa Monica Chief of Police; THE CITY OF SANTA MONICA; RAY H. COOPER; SHANE TALBOT; CITY OF LOS ANGELES, Defendants-Appellees, v. RAYMOND BENNETT; MICHAEL CROSBY, Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1039

195 F.3d 1039 (9th Cir. 1999)

CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE; CRIMINAL COURTS BAR ASSOCIATION; JAMES McNALLY; JAMES JOHNSON BEY, Plaintiffs-Appellees, v. JAMES T. BUTTS, City of Santa Monica Chief of Police; THE CITY OF SANTA MONICA; RAY H. COOPER; SHANE TALBOT, Defendants-Appellants, and WILLIE L. WILLIAMS, Chief of Police; CITY OF LOS ANGELES; RAYMOND BENNETT; MICHAEL CROSBY, Defendants.

CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, Plaintiff, JAMES McNALLY; JAMES JOHNSON BEY, Plaintiffs-Appellees, v. JAMES T. BUTTS, City of Santa Monica Chief of Police; THE CITY OF SANTA MONICA; RAY H. COOPER; SHANE TALBOT; CITY OF LOS ANGELES, Defendants-Appellees, v. RAYMOND BENNETT; MICHAEL CROSBY, Defendants-Appellants.

No. 97-56499 No. 97-56510

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 7, 1998--Pasadena, California

Filed November 8, 1999

As Amended on Denial of Rehearing and Rehearing En Banc Jan 8, 2000^*.

Marsha Jones Moutrie, City Attorney, Barbara Greenstein, Deputy City Attorney, Santa Monica, California; Debra L. Gonzales, Deputy City Attorney, Los Angeles, California, for the defendants-appellants.

Charles D. Weisselberg, Supervising Attorney, Victoria Wong, Law Student, Center for Clinical Education University of California, Boalt Hall, Berkeley, California; Mark Rosenbaum, Taylor Flynn, Sophia-Anne Fanelli (Law Student), ACLU Foundation of Southern California, Los Angeles, California; Michael J. Brennan, Carrie L. Hempel, Denise Meyer, Jack R. Scharringhausen (Law Student), Post Conviction Justice Project, University of Southern California Law School, Los Angeles, California, for the plaintiffs-appellees.

Joel E. Carey, Deputy Attorney General, Sacramento, California, for amicus State of California; Charles L. Hobson, Criminal Justice Legal Foundation, Sacramento, California, for amicus Criminal Justice Legal Foundation; Devallis Rutledge, Office of the District Attorney, Santa Ana, California, for amicus California Coalition of Law Enforcement Associations; William J. Hadden, Silver, Hadden & Silver, Santa Monica, California, for amici Peace Officers' Legal Research Association, Peace Officers' Legal Research Association Legal Defense Fund, Santa Monica Police Officers' Association, Los Angeles Police Protective League; Dilan A. Esper, West Hollywood, California, National Legal Aid and Defender Association; Mark A. Borenstein, Tuttle & Taylor, Los Angeles, California, for amicus National Association of Criminal Defense Lawyers.

Appeals from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. No. CV-95-08634-ER D.C. No. CV-95-08634-ER

Before: William C. Canby, Jr. and Sidney R. Thomas, Circuit Judges, and William W Schwarzer,¹ District Judge.

CANBY, Circuit Judge:

James McNally and James Bey, California state prisoners, joined in bringing this civil rights action against the cities of Los Angeles and Santa Monica, California, individual police officers and their respective Chiefs of Police. See 42 U.S.C. S 1983. McNally and Bey complain that they were the victims of a policy of the defendant police to defy the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). The alleged policy, set forth in certain training programs and materials, was to continue to interrogate suspects "outside Miranda" despite the suspects' invocation of their right to remain silent and their requests for an attorney.

The district court denied the motions of individual defendants James Butts, Jr., Shane Talbot, Ray Cooper, Raymond Bennett and Michael Crosby, for summary judgment on the ground of qualified immunity.² Those officers have now brought this interlocutory appeal challenging the denial of immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We affirm the order of the district court denying qualified immunity.³

BACKGROUND

Miranda requires that, once "the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id. at 474. These commands are clear on their face. Statements of an accused taken in violation of Miranda, however, have been held admissible for purposes of impeachment of a defendant who takes the stand and testifies inconsistently with his prior statement. See Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971). The policy of questioning "outside Miranda" appears to be based on the proposition, which we reject, that Harris and Hass negate the quoted imperatives of Miranda.⁴ How the policy of questioning "outside Miranda" worked in practice in these two cases is best demonstrated by the transcripts of the taped interview sessions with McNally and Bey.

James McNally Interrogation

Santa Monica detectives interrogated McNally about his role in a brutal murder. The interview took place in a jail in Arizona and lasted for several hours. McNally was advised of his Miranda rights and freely answered questions for a considerable period of time. He did not deny having stabbed the victim, but claimed that he had acted in self-defense. Eventually, the discussion focused on the degree of crime that might be charged, and whether McNally would waive extradition. At this point, the questioning took the following turn:

McNally: How `bout we do this? How `bout I'll waive extradition. I'll go with "you's." Let me talk to a California lawyer and we'll get back together.

D1:⁵ You'll what?

McNally: Okay. I'm saying, "I'll waive extradition. I'll go with "you's"-no hassle, no problem .. . .

D: Okay. Under, understand . . . .

McNally: So . . .

D: . . . understand what happens when you get to California -when you get your attorney. No attorney in his right mind is gonna' tell you talk with the police.

McNally: Oh, I know . . .

D: Justice works the same way as it does on the East Coast.

McNally: No, I, I understand. I, I just wanna' clarify a couple things in my mind. I, I know that. I know a lawyer's not gonna' tell me to talk to "you's."

D: Right.

McNally: I know that. Let me just talk to him about a couple -you know, I know Pennsylvania Law just `cuz I've been through it. I don't know California Law. I don't . . . let me talk to him a little bit and we'll get back -I promise I'll get back together with "you's."

D: So, you don't wanna' . . . .

D1: You're not gonna tell us . . .

D: . . . you don't wanna' tell us what happened . . .

McNally: No . . .

D: . . . now?

McNally: . . . not at this time. It's, it's too scary for me right now. I'd, I'd rather talk to a lawyer.

D: Alright.

McNally: I'm not trying to impede your investigation.

D: No, I understand.

McNally: I'll with "you's" . . . [sic]

D: I understand.

McNally: . . . no hassle . . . .

D: Okay, now, let me, let me explain to you what's happened. You've basically invoked your Right to have an attorney . . .

McNally: Right.

D: . . . okay? At this point, nothing that you say can be used against you in Court . . . in California because you have invoked your Right to have an attorney.

McNally: Right.

D: I still would like to know what happened now because -well, I'll tell you where I come from. I don't trust anything that anybody tells me after they've talked to an attorney and the D.A. that will be working with us on this case doesn't either.

So, basically, what they'll do is they'll play a game of "what's this case worth?" And they'll do "make, let's make a deal type thing."

McNally: I know.

D: What I wanna' know from you now is what you might tell me later so I know what you tell me later is the same as what you're gonna' tell me now because what you tell me later is gonna' be on the record.

D1: This is all on tape. This -what we're tellin' you. You've invoked your Rights. Everything from this point on . . .

D: Cannot . . .

D1: . . . regarding this case cannot be used against you. We're, we're making you the guarantee. It won't . . . you know, even though its on tape . . . .

McNally: Shut that thing off then.

D: Well, this is the record of what you're telling us. You, we . . .

D1: Yeah. It's also the record of you invoking your Rights. You want an attorney . . . . which is fine .. .

D: And it's -let me explain to you something else. Basically, what this does is validate for you and for the District Attorney that what you tell me now is what you're gonna' tell -hopefully, tell us later. `Cuz the evidence will bear out, I think, what I, I already know.

So, once we start a tape, we don't turn it off. If you wanna' turn off the tape then we stop the conversation and, and we'll go ahead . . . .

D1: See . . .

D: . . . and do the process. I just wanted to explain to you and I'm not trying to be "hard ass" about this. It's just the way I work. I know it's the way the District Attorney that I'm working with, uh, Richard Stone, works. We just -and if you were in our place, would you trust something that somebody told you after they talked to an attorney?

D1: It's like "black mail" with attorneys, Man. We know that.

D: I mean, I mean, first of all, if you could trust the attorney that you're working with he's gonna', and if you can work and if you tell him the truth, he gonna' work with you somehow to make a better deal, okay?

McNally: (no audible response).

D: They're, the deal is here. It's up to them . . .

D1: It's . . .

D: . . . it's up to them to talk about it. The only thing is, everything that falls after this -we'll go in one direction based on the physical evidence and the statements that we have. If we don't have anything to the contrary, that's the direction we're gonna' go and we're gonna' push it.

McNally: Right.

D: Okay, and fuck your attorney. It's just -I don't care about him anymore.

McNally: Yeah.

D: Okay. As far as I'm concerned,...