Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, Senior District Judge, Presiding D.C. No. CV-05-01983-TSZ
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted October 23, 2008-Seattle, Washington
Filed August 13, 2009; Amended September 18, 2009
Before: Barry G. Silverman and Marsha S. Berzon, Circuit Judges, and James C. Mahan,*fn1 District Judge.
Based solely on statements by a four-year-old that she had been sexually abused when she was three, Everett Police Detective Jon Jensen seized and interrogated plaintiff Paul Stoot II for almost two hours in the principal's office at Paul's school. Near the end of the interrogation, Paul stated that he had molested the victim three times. The confession was then used to file criminal charges against Paul in juvenile court.
A state court subsequently dismissed the charges, holding that the confession had been coerced and that the four-year-old victim was incompetent to testify at trial. After the charges against Paul were dismissed, the Stoot family filed this action under 42 U.S.C. § 1983, asserting violation of Paul's rights under the Fourth, Fifth, and Fourteenth Amendments. Specifically, the Stoots alleged that (1) Jensen seized Paul without probable cause in violation of the Fourth Amendment, as the victim's statements, standing alone, were unreliable; (2) Jensen coerced a confession that was later used against Paul in a criminal proceeding, in violation of the Fifth Amendment; and (3) Jensen's interrogation techniques were so coercive as to violate substantive due process under the Fourteenth Amendment. The Stoots also asserted a claim of municipal liability against the City of Everett based on its policies and practices regarding interrogation of juvenile suspects and child victims, as well as a state law claim of outrage.
We conclude that the Stoots have alleged viable claims under both the Fourth and Fifth Amendments, as Jensen seized Paul without probable cause and then allegedly coerced incriminating statements that were later used against Paul in a criminal proceeding. We nonetheless affirm the district court's grant of summary judgment to defendants on the Fourth Amendment claim on the basis of qualified immunity, as the pertinent law was not clearly established at the time of the violations. The Fifth Amendment claim, however, may proceed in district court, as the aspects of the pertinent law not clearly established at the time of the confession did not affect Jensen's role in bringing about the violation. Finally, we affirm the district court's grant of summary judgment to defendants on the Stoots' remaining claims, as Jensen's conduct did not rise to the level of a substantive due process violation or a state law claim for outrage and the Stoots have failed to provide evidence supporting municipal liability.
FACTS & PROCEDURAL HISTORY
On December 23, 2003, Nicki Johnson contacted the City of Everett Police Department to report that her four-year-old daughter, A.B., had been sexually abused by an acquaintance, Paul Stoot II ("Paul"). Officer Margaret Anders responded to the call and briefly interviewed Nicki. Nicki stated that four days earlier, she had walked into A.B.'s bedroom and found her with "her pants down . . . touching herself." Nicki asked A.B. why she was doing that, and A.B. eventually responded "because Paul touched me there." Nicki then asked her to explain exactly what happened, and A.B. replied that "[Paul] pulled down his pants and pulled his little thing out and pulled her pants down and put it on her." According to Nicki, A.B. indicated that this had happened five times between June and September 2002, while A.B. was living with the Stoot family.
Nicki told Officer Anders that "Paul" referred to Paul Stoot II, the 14-year-old son of Paul Stoot, a local pastor ("Pastor Paul"). Nicki described the neighborhood in which the Stoot family resided, and Officer Anders verified this information by finding an address for Paul Stoot in a local directory. She then instructed Nicki not to question her daughter any further about the incident, wrote her report, and passed it along to City detectives. Anders noted that "[t]hroughout my interaction with her, [Nicki] appeared to be a credible person who was not exaggerating or fabricating allegations. I had no reason to doubt her or the version of events that she conveyed to me." Anders's report concluded her involvement in the case.
Anders's report was assigned to Detective Jonathan Jensen the next day. At the time of the investigation, Jensen had been a police officer for twenty-four years, including five years in the Special Assault Unit, which focuses on cases of child sexual abuse. Jensen began his investigation by contacting Nicki, who described the same conversation with her daughter previously relayed to Anders. Based on his "background and training," Jensen "believed that [Nicki] had done [a] reliable job of obtaining truthful and accurate information from her daughter without leading her or planting a suggested story." Nicki agreed to allow Jensen to interview her daughter.
Jensen interviewed A.B. outside the presence of her mother or anyone else. He did not videotape or audio-record the interview. He did take notes, but threw them out shortly after preparing his police report. The account of the interview in his report thus constitutes the only contemporaneous description in the record of Jensen's interview with A.B.
According to the report, Jensen began the interview by "telling [A.B.] some things about [himself] in a rapport building exercise." He then asked her, "Has anyone ever touched you in a way you don't like?" A.B. answered, "No." Jensen then began working with sketches of a little boy and a little girl, asking A.B. to identify various body parts. After pointing to the little boy's penis, Jensen asked if she knew what that was called, to which A.B. responded that she didn't remember, but that girls weren't supposed to touch it. Jensen then asked, "Have you ever seen another boy's penis before?" A.B. responded, "A boy named Paul. He has one of these. He put it on my privates, on the bed he did, at [the Stoot's house]." A.B. said this happened on five days.
Jensen proceeded to ask a number of questions about Paul. A.B. stated that "[Paul] told me to taste [his penis]" one time in the bathroom, but that she "didn't touch it." She said that they went into the bedroom, and "he put his poo poo on me." Jensen asked A.B. if Paul touched her anywhere else, to which A.B. responded that "he sits on me and bounces when he puts his poo poo on me." She said that she "wouldn't like it. Sometimes, I like it but I don't like it. Sometimes, it gets stuck."
A.B.'s answers were at times confused or contradictory. Jensen asked her, for example, "Did Paul's penis touch your face?" to which A.B. answered, "No." Jensen then asked her, "Did you touch his poo poo?" A.B. denied that she did, but then began talking about another boy, "Preston." She answered, "No. I told you I didn't. He usually puts his poo poo inside here (she pointed to her vaginal area). Preston puts his poo poo in my pee pee." Jensen asked her who Preston was, and A.B. responded that he was a six-year-old friend who lives far away. Jensen then "told her [he] wanted to talk more about Paul and not talk about Preston anymore."
Jensen also asked A.B. several times whether Paul licked her. The first time, A.B. responded, "No. He just put his poo poo in my pee pee." A moment later, however, Jensen asked her if there was anything she forgot to tell him, to which she answered, "He actually has licked me." A.B. also stated, "Actually, I did lick his poo poo," although she had previously denied doing so several times.
Following the interview, Jensen talked to Nicki, who told him that A.B. had stayed with Paul Stoot and his family from June 2002 to September 2002 while Nicki dealt with some financial problems.*fn2 Jensen then called the local school district to find out which school Paul attended. Because he now considered Paul "a suspect in a rape of child case," Jensen also notified Child Protective Services of his investigation.
On January 15, 2003, Jensen called Bree Nelson, Principal of Voyager Middle School, to arrange an on-campus interview with Paul. Before interviewing Paul, Jensen spoke with two Snohomish County prosecutors "to make sure [he] was current on the legal standards for interviewing juvenile suspects that were at least 12 years old." According to Jensen,
From these discussions, [he] picked up two points of information; (1) if the juvenile requests his parents during the interview, treat the request the same as one for legal counsel, and (2) give the juvenile Miranda warnings and have him sign the waiver form (if applicable) even for non-custodial interviews since the interview was to take place at a school where the child was not free to leave.
Acting on this advice, Jensen told Nelson that she did not need to contact Paul's parents before the interview. Rather, Jensen indicated that he would contact them afterwards.
When Jensen arrived at the school, Vice Principal Bailey pulled Paul out of class and took him to the principal's office, where Jensen was waiting for him. At this point, the parties' version of events begins to differ.*fn3 According to Jensen,
I introduced myself and said I wanted to talk to [Paul]. He said okay. I sat down with him at a small table, and produced a rights form. I explained I was required to read him his rights before I could talk to him. He shook his head up and down. I read his rights . . ., and he signed the form to indicate that he understood, and signed that he was willing to talk to me.
After Paul waived his rights, Jensen states that he questioned Paul about A.B.'s allegations for close to two hours and that - after denying any wrongdoing at least 13 times - Paul eventually confessed. In Jensen's words, he successfully employed "the interviewing technique of blaming the victim":
I kept talking to him about A.B. starting the contacts, and about her being sexually aggressive. I kept telling him that it would have been normal for him to respond to her touching him. . . . I kept talking to him, and I finally said, 'You touched her vagina with your fingers, didn't you.' He said, 'Yes.' I asked, 'How many times?' He said, 'Three times on her vagina.'
According to Jensen, Paul also voluntarily agreed to provide a written statement. In that statement, Paul admitted that "[o]ne time I did touch her on her vagina for like 5 seconds," although he maintained that "[n]either of us pulled down our pants and rubbed on each other," that "she never put her mouth on my penis and I never put my mouth on her vagina," and that "[s]he never seen my penis, only when she walked in the bathroom and grabbed it but I didn't let her." In a note at the bottom of the statement, added at Jensen's instruction,*fn4
Paul indicated that he "rubbed on vagina 2 times with clothes on then one time for a couple of second with clothes off."
The Stoots provide a very different account of Paul's interview with Jensen. According to the Stoots, after Paul's repeated denials, Jensen "adjusted his tactics, and coerced admissions from Paul." They assert that this coercion "included the making of impermissible threats of heightened punishment if Paul denied guilt, and impermissible promises of leniency if he admitted guilt." Paul claims, for example, that after almost two hours of interrogation,
I'm thinking, man, he's not taking no for an answer and I don't know what to do. I don't know what to say besides tell him, yes, I did it. And I thought that I wasn't going to be able to walk out that room if I kept telling him no.
At that point, Paul alleges that Jensen told him,
[I]f I say no - if I keep saying no and denying it, then this could lead to court and you could go to jail for three to five months. . . . And if I just said that, yes, that all of this will be over, this won't lead to court. No charges will be pressed and you won't be going to jail and that I will only have to see a counselor."*fn5
After these false promises, the Stoots contend, "Paul's will was overcome by these tactics and the physically imposing Detective Jensen," and ...