Burns v. Reed

• Decision Date: 06 February 1995
• Docket Number: No. 93-1711,93-1711
• Citation: 44 F.3d 524
• Parties: Cathy BURNS, Plaintiff-Appellant, v. Rick REED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 524

44 F.3d 524

Cathy BURNS, Plaintiff-Appellant, v. Rick REED, Defendant-Appellee.

No. 93-1711.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1994.

Decided Jan. 5, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 6, 1995.

William L. Wilson, Hahn, Walz, Knepp, Dvorak, & Higgins, South Bend, IN, Michael K. Sutherlin (argued), Ida Coleman Lamberti, Indianapolis, IN, for plaintiff-appellant Cathy Burns.

David A. Nowak, Columbus, IN, Wayne E. Uhl (argued) Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, IN, for defendant-appellee Rick Reed.

Before CUMMINGS, ESCHBACH and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

This case presents the narrow question of whether the defendant, a Muncie, Indiana, deputy prosecuting attorney, is entitled to qualified immunity from suit under 42 U.S.C. Sec. 1983 for his actions concerning the 1982 interrogation and subsequent arrest of plaintiff Cathy Burns for allegedly shooting her two sons. Defendant authorized interrogation of plaintiff while she was under hypnosis and later advised Muncie police officers, based primarily on the results of the hypnosis session, that they had probable cause to arrest plaintiff. As it turned out, both of these decisions may have been ill-advised; all charges were later dropped against plaintiff, and the hypnosis session was roundly discredited as inept. Nevertheless, because qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law," Burns v. Reed, 500 U.S. 478, 495, 111 S.Ct. 1934, 1944, 114 L.Ed.2d 547 (citation omitted), it provides defendant with shelter from suit in the instant case.

FACTS

The factual background of this case has been set forth in detail in its previous journey On September 2, 1982, an intruder entered plaintiff's Muncie, Indiana, home, shot and wounded her two sons, and scrawled a threatening message on her mirror. Muncie law enforcement personnel soon turned their attention to plaintiff as their primary suspect, although she repeatedly denied any involvement in the crime. Plaintiff took and passed a polygraph examination and a voice stress test, and provided handwriting exemplars which were exculpatory, but investigating officers continued to view her as the prime suspect.

                through this Circuit. 1  A brief summary of the facts is necessary, however, to understand the nature of plaintiff's claim
                

On September 21, 1982, following a daylong interrogation, two police officers convinced plaintiff to submit to questioning under hypnosis. Before proceeding, one officer contacted defendant--a deputy prosecuting attorney for the county--at home to inquire whether the proposed course of action of hypnotizing their chief (although as-yet unarrested) suspect was proper; defendant gave the go-ahead. The officers proceeded with the hypnosis, and in the course of their questions elicited statements which led them to believe that plaintiff might suffer from a multiple personality disorder and might have committed the shootings. After learning of the results of the hypnosis session and consulting with a psychiatrist, defendant informed the officers that they likely had probable cause to arrest plaintiff. The officers subsequently arrested plaintiff and detained her in a psychiatric ward, where she remained for four months until experts concluded that she did not suffer from a multiple personality disorder. The prosecutor's office dismissed all charges against plaintiff after the trial court granted her motion to quash the statements made under hypnosis.

ANALYSIS

Plaintiff now appeals the district court's finding, on remand from the United States Supreme Court, that defendant was entitled to qualified immunity for his actions in authorizing the hypnosis and later the decision to arrest her. She faces a heavy burden. Qualified immunity protects public officials from civil suit based on their discretionary functions except where such conduct violated "clearly established" law. Sherman v. Four County Counseling Center, 987 F.2d 397, 407 (7th Cir.1993). The Supreme Court's test for qualified immunity has been summarized by this Court as follows:

In determining whether the right alleged to have been violated was "clearly established," the constitutional right must be identified in a particularized sense with respect to the circumstances of the alleged violation. In other words, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The plaintiff bears the burden of showing that the constitutional right allegedly violated was clearly established before the defendant acted or failed to act. This requires the plaintiff to offer either a closely analogous case or evidence that the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts.

Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir.1993) (quotation marks and citations omitted), quoted in Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 737 (7th Cir.1994). The analysis requires two findings: that the alleged conduct violated a constitutional right; and that the right was clearly established at the time that the violation occurred. Sherman, 987 F.2d at 407. Failure on either prong will defeat the attempt to overcome immunity, which we review de novo. Maltby v. Winston, 36 F.3d 548, 555 & n. 7 (7th Cir.1994); Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.1988) (en banc), certiorari denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534.

I.

In seeking to demonstrate that hypnosis violated her constitutional rights, plaintiff offers a range of case law that proscribes in no uncertain terms the extraction of coerced confessions as a constitutional violation. See, e.g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (use of physical torture to extract confession violates due process); Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 739-40, 5 L.Ed.2d 760 (coerced confessions "offend an underlying principle in the enforcement of our criminal law" and violate due process); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (any confession which is "not the product of a free intellect" is inadmissible because coerced). Plaintiff points out, correctly, that psychological as well as physical pressure can overbear a suspect's will such that a resulting statement violates due process. "[N]either the body nor mind of an accused may be twisted until he breaks." Culombe v. Connecticut, 367 U.S. 568, 582, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037; see Arizona v. Fulminante, 499 U.S. 279, 286-87 n. 2, 111 S.Ct. 1246, 1252 n. 2, 113 L.Ed.2d 302; Smith v. Duckworth, 856 F.2d 909, 912 (7th Cir.1988) (setting forth numerous relevant factors to be used in determining whether defendant's will was overborne, including age, educational level, intelligence, length of detention, duration of questioning, as well as existence of physical punishment or deprivation).

It is no small leap from this well-established, albeit heavily fact-dependent, body of due process case law, which generally proscribes the physical or psychological coercion of confessions, to the conclusion that statements elicited from a suspect under hypnosis are per se coerced or that the use of hypnosis on a suspect is per se coercive. Criminal interrogations often rely on tactics that are at least arguably manipulative and by definition designed to extract information from recalcitrant suspects, while still falling within the boundaries of what is constitutionally permissible. Hypnosis admittedly suffers from some unique defects--its known effects include increased suggestibility, a tendency to "confabulate" or fill in gaps with fictitious details, an inability to sift fantasy from fact and an unwarranted boost in the subject's confidence in what he is relating. See Rock v. Arkansas, 483 U.S. 44, 58-60, 107 S.Ct. 2704, 2712-14, 97 L.Ed.2d 37; People v. Boudin, 118 Misc.2d 230, 460 N.Y.S.2d 879, 881 (Sup.Ct.1983); Note, The Admissibility of Hypnotically Induced Testimony, 55 Tenn.L.Rev. 785, 791-794 (1988). Furthermore, subjects of hypnosis report an "experience of responding involuntarily." Rock, 484 U.S. at 59, 107 S.Ct. at 382 (citation omitted). ²

The plaintiff in this case was allegedly subjected while in a vulnerable and highly suggestible hypnotic state to bullying and intimidation from the investigative officers, approved (and later concealed) by the defendant. This is a disturbing scenario that conceivably could skirt the edges of constitutional propriety. However, our inquiry directs us not only to the existence of a constitutional violation, but to its clarity in light of legal precedent in determining whether qualified immunity exists. Unlike the first question, this issue presents no difficulty.

II.

To show that the law on a particular subject was clearly established, plaintiffs are not required to supply case law on all fours with the facts and law involved. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523; McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992). Yet neither can they rely solely on a broadly worded proscription when the conduct in question is narrow and circumscribed. Plaintiff here must offer more than the fact that federal case law clearly frowns on coercive interrogation; she must demonstrate that coercive interrogation clearly includes hypnosis, and did so at the time of the events in question. State officials " 'need not predict [the law's] evolution, need not know that in the fight between broad and narrow readings of a precedent the broad reading will become ascendant.' " Smith v. Fruin, 28 F.3d 646, 650 (7th Cir.1994) (quoting Greenberg v. Kmetko, 922 F.2d 382, 385 (7th Cir.1991)).

Plaintiff thus would need to cite more specific precedent than the basic...