924 F.2d 1520 (9th Cir. 1989), 88-15661, Cooper v. Dupnik

Docket Nº:88-15661, 88-15685.
Citation:924 F.2d 1520
Party Name:Michael COOPER, Husband, in his Own Capacity and as Parent of Abram and Adam Cooper, minors; Lidia Cooper, Wife, in her Own Capacity and as Parent of Abram Cooper and Adam Cooper, Minors, Plaintiffs-Appellees, v. Clarence DUPNIK, Sheriff, Pima County; Tom Taylor, an Employee of Pima County Sheriff's Department; Weaver Barkman, an Employee of Pima C
Case Date:December 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1520

924 F.2d 1520 (9th Cir. 1989)

Michael COOPER, Husband, in his Own Capacity and as Parent

of Abram and Adam Cooper, minors; Lidia Cooper, Wife, in

her Own Capacity and as Parent of Abram Cooper and Adam

Cooper, Minors, Plaintiffs-Appellees,

v.

Clarence DUPNIK, Sheriff, Pima County; Tom Taylor, an

Employee of Pima County Sheriff's Department;

Weaver Barkman, an Employee of Pima

County Sheriff's Department,

Defendants-Appellants.

Michael COOPER, Husband, in his Own Capacity and as Parent

of Abram and Adam Cooper, Minors; Lidia Cooper, Wife, in

her Own Capacity and as Parent of Abram Cooper and Adam

Cooper, Minors, Plaintiffs-Appellees,

v.

Clarence DUPNIK, Sheriff, Pima County, Defendant,

and

City of Tucson; Tucson Police Department; Peter Ronstadt;

Karen Wright; Gene Scott; Timothy O'Sullivan;

Kay McCall, Defendants-Appellants.

Nos. 88-15661, 88-15685.

United States Court of Appeals, Ninth Circuit

December 11, 1989

Argued and Submitted Dec. 11, 1989.

Feb. 6, 1991.

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[Copyrighted Material Omitted]

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Michael P. Callahan, Deputy County Atty., Tucson, Ariz., for defendants-appellants Clarence Dupnik and Tom Taylor.

David L. Berkman, Murphy, Goering, Roberts & Holt, Tucson, Ariz., for defendant-appellant Weaver Barkman.

David F. Toone, Kimble, Gothreau & Nelson, Tucson, Ariz., for defendant-appellant Peter Ronstadt.

Stephen M. Weiss, Karp, Stoklin & Weiss, Winton D. Woods, Michael J. Bloom, Tucson, Ariz., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona.

Before HALL, BRUNETTI and NOONAN, Circuit Judges.

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CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellants Dupnik, Taylor and Barkman, from the Pima County Sheriff's Department, and appellants Ronstadt and Wright, from the Tucson Police Department, join in this consolidated appeal of the district court's denial of their motions for summary judgment based upon the affirmative defense of qualified immunity. The district judge had denied summary judgment on this ground after appellee Cooper brought suit under 42 U.S.C. Sec. 1983 and pendent state claims for police misconduct surrounding his arrest.

The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. The district court's denial of qualified immunity is an appealable final decision within the meaning of section 1291, notwithstanding the absence of a final judgment, based upon the "collateral order" doctrine. Mitchell v. Forsyth, 472 U.S. 511, 524-29, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985). We affirm in part and reverse in part.

I

In this consolidated appeal, there are two groups of appellants: Pima County, the Pima County Sheriff's Department and its employees, Sheriff Clarence Dupnik ("Dupnik"), Detective Weaver Barkman ("Barkman") and Sergeant Tom Taylor ("Taylor"); and the City of Tucson, the City of Tucson Police Department and its employees, Detective Karen Wright ("Wright"), Chief of Police Peter Ronstadt ("Ronstadt") and the identification technicians. The appellees, Mr. Michael Cooper ("Cooper") and his wife Lidia Cooper, sued on behalf of themselves and for their minor children, Abram and Adam Cooper.

There are two major issues before us, the "interrogation issue" and the "defamation issue." The former affects both appellant groups and the defamation issue applies only to the Tucson Police Department appellants.

A

From 1984 through September of 1986, a serial rapist had been suspected in a chain of rapes, robberies, and kidnappings in the metropolitan Tucson area. In response to this, in April of 1986, the Tucson Police Department and the Pima County Sheriff's Department, the two police agencies with enforcement responsibilities in that area, formed a joint task force whose objective was to apprehend the person or persons responsible. These attacks had received considerable attention in the media and the suspect became known as the Prime Time Rapist. Prior to the arrest of Cooper, the task force determined that, when they arrested the Prime Time Rapist suspect, they would continue to ask him questions despite his request for silence or for an attorney. 1

Cooper also contends that it is the accepted procedure of the Tucson Police Department and the Pima County Sheriff's Department to ignore a defendant's invocation of his Miranda rights in certain cases. This contention is the subject of much dispute, though the district judge found enough evidence of this to allow the question to reach the jury. The attorney for Pima County admitted that there is some evidence in the record that the Pima County Sheriff's Department and the Tucson Police Department have been disregarding defendants' requests for counsel, at their discretion, since 1981.

Defendants Taylor, Barkman, and Wright concede that they intended to implement a plan to continue questioning the suspect during a custodial arrest in this particular case, despite his request for counsel. 2 The investigators understood

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that the statements thus obtained would not be admissible in a criminal trial. However, they believed such statements might be held to be voluntary and thus could be used for impeachment purposes, to keep the defendant off the stand, or to deprive him of the opportunity of forming an insanity defense. There is conflicting evidence as to whether appellant Dupnik was aware of or approved of this plan. Appellants concede, however, that for purposes of this appeal, the conflict in evidence must be resolved in favor of the plaintiff.

On May 7, 1986, following an oral report from Tucson Police Department identification technicians that two sets of latent prints found at the scene of two of the crimes attributable to the Prime Time Rapist had been identified as being those of Cooper, Taylor ordered the arrest of Cooper. Barkman and Wright met with Cooper for about thirty minutes at the probation office at 3:00 p.m. Miranda warnings were read, and a prearrest interview of Cooper took place. Following this, Cooper was placed under arrest, whereupon he made his first unequivocal request to contact his attorney. That request was never honored, nor were any of the several following requests.

During the probation interview, Cooper had been told that his prints matched those found at the scene of two of the Prime Time Rapist's crimes. He was also told that his prints matched crime scene prints from another attributed serial incidence when the officers actually possessed no such information. During the time between Cooper being placed under arrest and the time he was transported to the Pima County Sheriff's Department, the interrogation ceased. Upon their arrival at the Pima County Sheriff's Department, Wright advised Taylor that Cooper had requested an attorney, and Taylor told her to commence interrogating him anyway. Cooper was interrogated by appellants Wright, Barkman, and Detective Hust 3 in an interrogation room at the Pima County Sheriff's Department for approximately four hours. Participating officers were aware that Cooper's request for an attorney should have been honored and that they were violating Miranda in refusing to supply him with one.

During the interrogation, Cooper was visibly upset, sometimes angry and sometimes crying. During one stage of the interrogation, Barkman made reference to Cooper's Judaic background, stating that "some of my friends are Jewish and they tell me that guilt is built in, to be Jewish is to be guilty." At about 9 p.m., after more than four hours of interrogation, Cooper was booked into the Pima County Jail. At that time, another request for counsel was made and ignored. Cooper had no contact with the outside world, including his family or an attorney, until the afternoon of the next day when he was released nearly twenty-four hours after his arrest.

It was later determined that the latent fingerprints found at the scene of the crime were definitely not Cooper's. A mistake had been made by the identification technicians, which is the subject of 42 U.S.C. Sec. 1983 and state tort charges not at issue in this appeal. Court charges were never filed against Cooper as to any of these crimes. Cooper's psychologist, Dr. Todd Flynn, Ph.D. in clinical psychology, testified that Mr. Cooper was traumatized and suffered from post-traumatic stress syndrome as a result of this interrogation.

B

There was tremendous media attention concerning the Prime Time Rapist in general and the arrest of Cooper in particular. This media coverage included a statement made the evening of May 7, 1986, by Taylor,

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head of the task force, declaring, "what we have caught is a man who has committed two rapes of a series of twenty that we are looking at."

By the morning of May 8, 1986, Gene Scott ("Scott"), the head of the Tucson Police Department Identification Laboratory, realized the latent prints in issue did not belong to Cooper. In the late morning or early afternoon of that day, Ronstadt was told by Captain Leveranz that he did not think Cooper was "good" for the case. Ronstadt was further told that the people who had allegedly seen the Prime Time Rapist did not identify Cooper, and that the police department did not have grounds to charge Cooper with any crime. Ronstadt then met with Scott regarding the fingerprints. During that meeting, Scott explained to Ronstadt that there were "dissimilarities" between the latent prints attributed to the Prime Time Rapist and the known prints of plaintiff Cooper, meaning that the prints did not match. Ronstadt asked Scott why he did not notice the dissimilarities before the arrest. Scott told Ronstadt...

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