963 F.2d 1220 (9th Cir. 1992), 88-15661, Cooper v. Dupnik

Docket Nº:88-15661, 88-15685.
Citation:963 F.2d 1220
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:May 05, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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963 F.2d 1220 (9th Cir. 1992)

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

May 5, 1992

Argued and Submitted Aug. 22, 1991.

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David L. Berkman, Murphy, Clausen & Goering, Tucson, Ariz., for defendant-appellant Barkman.

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

David B. Toone, Kimble, Gothreau & Nelson, Tucson, Ariz., for defendants-appellants Ronstadt and Wright.

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

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

Before: BROWNING, HUG, SCHROEDER, FLETCHER, ALARCON, POOLE, WIGGINS, BRUNETTI, THOMPSON, LEAVY, and TROTT, Circuit Judges.

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TROTT, Circuit Judge:

"It is abiding truth that '[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' "

Oregon v. Hass, 420 U.S. 714, 724-25, 95 S.Ct. 1215, 1222, 43 L.Ed.2d 570 (Brennan, J., dissenting (quoting Harris v. New York, 401 U.S. 222, 232, 91 S.Ct. 643, 649, 28 L.Ed.2d 1 (1971) (Brennan, J., dissenting))).

Michael Cooper was arrested for rape. Pursuant to a preexisting interrogation plan, members of the Tucson Police Department and the Pima County (Arizona) Sheriff's Department ignored Cooper's repeated requests to speak with an attorney, deliberately infringed on his Constitutional right to remain silent, and relentlessly interrogated him in an attempt to extract a confession.

Eventually, the "evidence" against Cooper began to disintegrate. Cooper's interrogators concluded that he was not guilty, and so advised Peter Ronstadt, Chief of the Tucson Police Department. Nonetheless, Ronstadt subsequently told the media that Cooper properly had been identified and arrested. Further investigation fully exonerated Cooper, and he was released. Two months later, the Tucson Police Department publicly cleared him of all charges.

Cooper sued employees of the Pima County Sheriff's Department and the Tucson Police Department, as well as the agencies and municipalities for which they worked. Cooper alleged a violation of 42 U.S.C. § 1983 (1988), and various state laws; he also included a count for defamation. All of the defendants moved for summary judgment based on the doctrine of qualified immunity; the district court denied the motion. On appeal, a panel of this court reversed on all counts except the defamation claim. Cooper v. Dupnik, 924 F.2d 1520 (9th Cir.1991). Cooper successfully petitioned for a rehearing en banc. 933 F.2d 798 (9th Cir.1991).

The district court had jurisdiction under 28 U.S.C. § 1331 (1988). We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 1291 (1988). The district court's denial of qualified immunity is appealable pursuant to Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985).

Our review of the denial of appellants' motion for summary judgment is de novo, and in conducting this review, we contemplate the evidence presented to the district court in the light most favorable to Cooper, the nonmoving party. As to the issue of qualified immunity, we look to see whether the police "acted reasonably under settled law in the circumstances." Hunter v. Bryant, --- U.S. ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam). We note that in the main, the facts on which Cooper's complaint is based are not contested.

We affirm the district court on all counts.

I THE PLAN TO INTERROGATE THE PRIME TIME RAPIST

Beginning in 1984 and extending through September of 1986, residents of Tucson, Arizona were beset by a series of rapes, robberies, and kidnappings. The Tucson Police Department and the Pima County Sheriff's Department believed one person might be responsible for the attacks. That person became known as the "Prime Time Rapist."

To improve their chances of identifying and apprehending the Prime Time Rapist, Tucson Police Chief Peter Ronstadt and Pima County Sheriff Clarence Dupnik joined forces and created the Prime Time Rapist Task Force (the "Task Force"). The Task Force was made up of experienced law-enforcement officers from both agencies: its lead investigators were Detective Karen Wright from the Tucson Police Department, and Sergeant Thomas Taylor and Detective Weaver Barkman, Jr. from the Pima County Sheriff's Department. Barkman and Wright had worked together on the investigation prior to the formation of the Task Force. Sergeant Taylor was their supervisor.

Members of the Task Force planned meticulously for the day they would arrest

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their first suspect. In July of 1985, Detective Barkman and the other officers developed a strategy for interrogating a Prime Time Rapist suspect. The core of their plan was to ignore the suspect's Constitutional right to remain silent as well as any request he might make to speak with an attorney in connection therewith, to hold the suspect incommunicado, and to pressure and interrogate him until he confessed. Although the officers knew any confession thus generated would not be admissible in evidence in a prosecutor's case in chief, they hoped it would be admissible for purposes of impeachment if the suspect ever went to trial. They expected that the confession would prevent the suspect from testifying he was innocent, and that it would hinder any possible insanity defense.

As a first step, Sergeant Taylor designated Detective Barkman as the Task Force's "primary interrogator," an assignment made known to everyone concerned. Taylor explained his decision as follows:

Q. [to Taylor] Now, why did you decide to designate Weaver Barkman as the interrogator for the task force?

A. My experience with Weaver.

Q. Well, why don't you elaborate on that. Explain what you mean.

A. His ability as an interrogator. I've seen him--I've worked with him. I was confident in his ability to get results.

Q. All right. And are you familiar then with the various techniques that he employs?

A. I don't--yeah. I'd guess I'd say style as opposed to techniques.

....

Q. Okay. And describe his style for me, if you will.

A. I see Weaver's style as being confrontive in terms of offering somebody no hope of denying; that that's not going to work for them, that they've got to come clean, so to speak.

Q. Creating a sense of hopelessness?

A. Yes.

Q. And what you anticipated happening in this situation was that the individual would be cut off from the rest of the world because [he] wouldn't be allowed to contact an attorney and would be interrogated by Deputy Barkman who would be creating this sense of hopelessness; isn't that correct?

A. Correct.

Exhibits--Vol. I, No. 0041.

No doubt exists about the Task Force's intent. In his deposition, Barkman was quite explicit about his scheme to ignore a suspect's substantive right to remain silent while in custody, as well as any request the suspect might make to consult with counsel.

A. [from Barkman] There was--there was an agreement, at least I agreed with myself, that when we identified the Prime Time Rapist, that we would not honor an assertion of counsel or silence.

And, to be perfectly honest, the profile that I had was that he would immediately ask for an attorney. I knew he would, whoever he was.... [W]hen we find the Prime Time Rapist, I am going to continue the interrogation. I was a designated interrogator. And I said, Stoneham, this is my plan. Tom [Taylor], this is my plan. Karen [Wright], you know, whoever wants to listen, this is my plan.

That would--that would occur when there was little, if any, doubt of the guilt of the person we arrested. And this also goes hand in hand with the decision to not honor attorney--the request for an attorney. That is something that should be used only in two situations: Number one, where the--the evidence is overwhelming and the--the--the proof is evident and/or when you think you've got the wrong guy.

Exhibits--Vol. I, No. 0012 (emphasis added).

The point of flouting the requirements, announced by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that a suspect in custody be permitted to consult with an attorney prior to any interrogation, was to ensure such a suspect would not rely on his right to remain silent. In her deposition, Detective Wright explained this aspect of the plan:

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Q. [to Wright] Okay. And by contacting an attorney, what effect do you think--if you had allowed Mr. Cooper to contact an attorney, what effect do you think that would have had on your ability to obtain--or ability to speak with him, to speak with Mr. Cooper?

A. I would doubt very seriously if he would speak to us at all after he contacted an attorney.

Q. All right. Is...

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