US Supreme Court Briefs

In the Supreme Court of the United States No. 01-1444 In the Supreme Court of the United States __________ B EN C HAVEZ , Petitioner , v. O LIVERIO M ARTINEZ , Respondent . __________ On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit __________ BRIEF FOR THE PETITIONER __________ A LAN E. W ISOTSKY L AWRENCE S. R OBBINS * J EFFREY H ELD R OY T. E NGLERT , J R . Law Offices of Alan E. Wisotsky K ATHRYN S. Z ECCA 300 Esplanade Drive Robbins, Russell, Englert, Suite 1500 Orseck & Untereiner LLP Oxnard, CA 93036 1801 K Street, N.W. (805) 278-0920 Suite 411 Washington, D.C. 20006 G ARY L. G ILLIG (202) 775-4500 City Attorney City of Oxnard 300 West Third Street * Counsel of Record Oxnard, CA 93030 (805) 385-7483 Counsel for Petitioner QUESTION PRESENTED Whether petitioner, a police officer, is entitled to qualified immunity in a lawsuit under 42 U.S.C. 1983 alleging that his interrogation of respondent was unduly coercive, in violation of the Fifth and Fourteenth Amendments, where no statement made by respondent has ever been used against him in a criminal case and the officer's undisputed purpose was to obtain evidence from an individual, shot by police, before that indi- vidual's anticipated imminent death. ii RULE 24.1(b) STATEMENT Pursuant to Rule 24.1(b), petitioner Ben Chavez states that there were no parties in the court of appeals who are not parties in this Court. In the trial court, the defendants in addition to Chavez were the City of Oxnard, the Oxnard Police Department, Chief Art Lopez, in his official and individual capacities, Chief Harold Hurtt, in his individual capacity, and Officers Maria Pea, Andrew Salinas, and Ron Zavala, in their official and individual capacities. Defendants Lopez and Hurtt were both dismissed from the case by the trial court before the entry of judgment. See J.A. 3. iii TABLE OF CONTENTS Page QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . i RULE 24.1(b) STATEMENT . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . v OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM BOTH THE FIFTH AND FOURTEENTH AMENDMENT CLAIMS ARISING FROM HIS INTERROGATION OF RESPONDENT 11 A. Petitioner's Interrogation Of Respondent Did Not Violate The Fifth Or Fourteenth Amendment . . . 11 iv 1. Because Respondent's Statements Were Never Used Against Him In A Criminal Case, There Was No Infringement of His Privilege Against Compulsory Self- Incrimination . . . . . . . . . . . . . . . . . . . . . . . . 11 2. The Interrogation Did Not Violate Respon- dent's Due Process Rights . . . . . . . . . . . . . . 21 B. If Respondent Sustained A Constitutional Depri- vation At All, The Constitutional Rights At Stake Were Not "Clearly Established" At The Time Of The Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . 37 1. There Is No "Clearly Established" Fifth Amendment Right to Be Free From Coercive Questioning . . . . . . . . . . . . . . . . . . . . . . . . . 38 2. There Is No "Clearly Established" Fourteenth Amendment Right To Be Free From Coer- cive Questioning, In General Or In The Circumstances Of This Case . . . . . . . . . . . . 41 3. Mincey v. Arizona Did Not Clearly Establish That All Hospital Interrogations Constitute Fifth Amendment Or Substantive Due Process Violations Or That The Interrogation In This Case Constituted A Violation . . . . . 45 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 v TABLE OF AUTHORITIES Page(s) Cases: Anderson v. Creighton , 483 U.S. 635 (1987) . . . . . . . . 6, 37 Ashcraft v. Tennessee , 322 U.S. 143 (1944) . . . . . . . . . . . 25 Baltimore City Department of Social Services v. Bouknight , 493 U.S. 549 (1990) . . . . . . . . . . . . . . . . . 18 Baxter v. Palmigiano , 425 U.S. 308 (1976) . . . . . . . . . . . 18 Beecher v. Alabama , 408 U.S. 234 (1972) . . . . . . . . . 24, 28 Blackburn v. Alabama , 361 U.S. 199 (1960) . . . . . . . . . . . 25 Blefare v. United States , 362 F.2d 870 (9th Cir. 1966) . . . 41 Bowers v. Hardwick , 478 U.S. 186 (1986) . . . . . . . . . . . . 30 Breithaupt v. Abram , 352 U.S. 342 (1957) . . . . . . . . . 29, 41 Brown v. Mississippi , 297 U.S. 278 (1936) . . . . . . . . . passim Brown v. Walker , 161 U.S. 591 (1896) . . . . . . . . . . . . . 7 , 20 Campaneria v. Reid , 891 F.2d 1014 (2d Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 Collins v. City of Harker Heights , 503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . . . . . passim Colorado v. Connelly , 479 U.S. 157 (1986) . . . . . . . . . . . 22 Conn v. Gabbert , 526 U.S. 286 (1999) . . . . . . . . . . . . . . . 11 TABLE OF AUTHORITIESContinued Page(s) vi Cooper v. Dupnik , 963 F.2d 1220 (9th Cir.), cert. denied, 506 U.S. 953 (1992) . . . . . . . . . . . . . passim County of Sacramento v. Lewis , 523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . . . passim Cruzan v. Director, Missouri Department of Health , 497 U.S. 261 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Culombe v. Connecticut , 367 U.S. 568 (1961) . . . . . . . . . 14 Daniels v. Williams , 474 U.S. 327 (1986) . . . . . . . . . . . . . 32 Davis v. North Carolina , 384 U.S. 737 (1966) . . . . . . . . . 25 Dickerson v. United States , 530 U.S. 428 (2000) . . . . . . . . . . . . . . . . . . 8, 22, 24, 38 Driebel v. City of Milwaukee , 298 F.3d 622 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Edwards v. Arizona , 451 U.S. 477 (1981) . . . . . . . . . . . . . 12 Estelle v. Smith , 451 U.S. 454 (1981) . . . . . . . . . . . . . . . . 14 Fisher v. State , 145 Miss. 116, 110 So. 361 (1926) . . . . . 23 Gaylor v. United States , 74 F.3d 214 (10th Cir. 1996) . . . 39 Giuffre v. Bissell , 31 F.3d 1241 (3d Cir. 1994) . . . . . . 40, 43 Graham v. Connor , 490 U.S. 386 (1989) . . . . . . . . . . . . . 36 TABLE OF AUTHORITIESContinued Page(s) vii Harlow v. Fitzgerald , 457 U.S. 800 (1982) . . . . . . . . . . . . . 5 Haynes v. Washington , 373 U.S. 503 (1963) . . . . . 25, 34, 38 Hope v. Pelzer , 122 S. Ct. 2508 (2002) . . . . . . . . . . . . . . . 11 Hopson v. Fredericksen , 961 F.2d 1374 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44 In re Groban , 352 U.S. 330 (1957) . . . . . . . . . . . . . . . . . . 34 In re McDonald , 205 F.3d 606 (3d Cir.), cert. denied, 531 U.S. 822 (2000) . . . . . . . . . . . . . . . . 39 Ingraham v. Wright , 430 U.S. 651 (1977) . . . . . . . . . . . . . 33 INS v. Lopez-Mendoza , 468 U.S. 1032 (1984) . . . . . . . . . 25 Jackson v. Denno , 378 U.S. 368 (1964) . . . . . . . . . . . . . . 24 Johnson v. New Jersey , 384 U.S. 719 (1966) . . . . . . . . . . 20 Kastigar v. United States , 406 U.S. 441 (1972) . . 15, 16, 18 Ker v. California , 374 U.S. 23 (1963) . . . . . . . . . . . . . . . . 36 Lefkowitz v. Cunningham , 431 U.S. 801 (1977) . . . . . . . . 17 Lefkowitz v. Turley , 414 U.S. 70 (1973) . . . . . . . . 13, 17, 18 Leon v. Wainwright , 734 F.2d 770 (11th Cir. 1984) . . . . . 27 Lynumn v. Illinois , 372 U.S. 528 (1963) . . . . . . . . . . . . . . 25 TABLE OF AUTHORITIESContinued Page(s) viii Mahoney v. Kesery , 976 F.2d 1054 (7th Cir. 1992) . . . . . . 40 McCoy v. MIT , 950 F.2d 13 (1st Cir. 1991) . . . . . . . . . . . 39 McKune v. Lile , 122 S. Ct. 2017 (2002) . . . . . . . . . . . . . . 26 Medina v. California , 505 U.S. 437 (1992) . . . . . . . . . . . . 25 Miller v. Fenton , 474 U.S. 104 (1985) . . . . . . . . . . . . . . . 22 Mills v. Rogers , 457 U.S. 291 (1982) . . . . . . . . . . . . . . . . 21 Mincey v. Arizona , 437 U.S. 385 (1978) . . . . . . . . . . . passim Minnesota v. Murphy , 465 U.S. 420 (1984) . . . . . . . . 13, 17 Miranda v. Arizona , 384 U.S. 436 (1966) . . . . . . . 19, 30, 41 Moore v. City of East Cleveland , 431 U.S. 494 (1977) . . . 30 Moran v. Clarke , 296 F.3d 638 (8th Cir. 2002) . . . . . . . . . 35 Murphy v. Waterfront Comm'n of New York Harbor , 378 U.S. 52 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Natural Resources Def. Council v. Nuclear Regulatory Comm'n , 216 F.3d 1180 (D.C. Cir. 2000) . . . . . . . . . 39 New Jersey v. Portash , 440 U.S. 450 (1979) . . . . . . . . . . . 17 New York v. Quarles , 467 U.S. 649 (1984) . . . . . . . 30, 34-35 TABLE OF AUTHORITIESContinued Page(s) ix Nichol v. Pullman Standard, Inc. , 889 F.2d 115 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Oregon v. Elstad , 470 U.S. 298 (1985) . . . . . . . . . . . . 14, 38 Palko v. Connecticut , 302 U.S. 319 (1937) . . . . . . . . . . . . 30 Poe v. Ullman , 367 U.S. 497 (1961) . . . . . . . . . . . . . . . . . 26 Ponderosa Dairy v. Lyons , 259 F.3d 1148 (9th Cir. 2001) 14 Reck v. Pate , 367 U.S. 433 (1961) . . . . . . . . . . . . . . . . 23, 45 Reno v. Flores , 507 U.S. 292 (1951) . . . . . . . . . . . 22, 28, 41 Riley v. Dorton , 115 F.3d 1159 (4th Cir. 1997) . . . . . . . . . 40 Rizzo v. Goode , 423 U.S. 362 (1976) . . . . . . . . . . . . . . . . 35 Roberts v. United States , 445 U.S. 552 (1980) . . . . . . . 30-31 Robertson v. Plano City , 70 F.3d 21 (5th Cir. 1995) . . . . . 44 Rochin v. California , 342 U.S. 165 (1951) . . . 22, 29, 41, 44 Saucier v. Katz , 533 U.S. 194 (2001) . . . . . . . . . . . . . passim Schmerber v. California , 384 U.S. 757 (1966) . . . . . . passim Schneckloth v. Bustamonte , 412 U.S. 218 (1973) . . . . . . . 34 Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 TABLE OF AUTHORITIESContinued Page(s) x Sheet Metal Workers v. EEOC , 478 U.S. 421 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Siegert v. Gilley , 500 U.S. 226 (1991) . . . . . . . . . . . . . . . . 11 Simmons v. United States , 390 U.S. 377 (1968) . . . . . . . . 18 Snyder v. Massachusetts , 291 U.S. 97 (1934) . . . . . . . . . . 23 Spano v. New York , 360 U.S. 315 (1959) . . . . . . . . . . . . . 25 Staacke v. United States Secretary of Labor , 841 F.2d 278 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . 39 Stone v. Powell , 428 U.S. 465 (1976) . . . . . . . . . . . . . . . . 20 Stone Container Corp. v. United States , 229 F.3d 1345 (Fed. Cir. 2000), cert. denied, 532 U.S. 971 (2001) . . 39 United States v. Baird , 85 F.3d 450 (9th Cir. 1996) . . . . . 39 United States v. Balsys , 524 U.S. 666 (1998) . . . . . . 7, 19-20 United States v. George , 987 F.2d 1428 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 United States v. Hubbell , 530 U.S. 27 (2000) . . . . . . . . . . 14 United States v. Lewis , 833 F.2d 1380 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 United States v. Martin , 781 F.2d 671 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 TABLE OF AUTHORITIESContinued Page(s) xi United States v. Palomo , 80 F.3d 138 (5th Cir. 1996) . . 40-41 United States v. Verdugo-Urquidez , 494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . . . . . passim United States ex rel. Bilokumsky v. Tod , 263 U.S. 149 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Washington v. Glucksberg , 521 U.S. 702 (1997) . . . . 26, 33 Washington v. Harper , 494 U.S. 210 (1990) . . . . . . . . 22, 33 Whitley v. Albers , 475 U.S. 312 (1986) . . . . . . . . . . . . 32, 43 Wiley v. Doory , 14 F.3d 993 (4th Cir. 1994) . . . . . . . . . . . 40 Wilkins v. May , 872 F.2d 190 (7th Cir. 1989) . . . . . . . passim Wilkinson v. Russell , 182 F.3d 89 (2d Cir. 1999) . . . . . . . 40 Wilson v. Layne , 526 U.S. 603 (1999) . . . . . . . . . . . . . passim Withrow v. Williams , 507 U.S. 680 (1993) . . . . . . . . . . . . 20 Yanez v. Romero , 619 F.2d 851 (10th Cir. 1980) . . . . . . . 44 Youngberg v. Romeo , 457 U.S. 307 (1982) . . . . . . . . . . . . 33 Constitution and Statutes: U.S. C ONST . Amend. V . . . . . . . . . . . . . . . . . . . . . . . . passim TABLE OF AUTHORITIESContinued Page(s) xii U.S. C ONST . Amend. XIV . . . . . . . . . . . . . . . . . . . . . . passim 18 U.S.C. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 18 U.S.C. 6002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 11-12 Act of Apr. 30, 1790, 6 Stat. 113 . . . . . . . . . . . . . . . . . . 31 Miscellaneous: Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 Y ALE L.J. ___ (forthcoming December 2002). . . . . . . . . . . . . . . . 16, 18 A. D ERSHOWITZ , W HY T ERRORISM W ORKS : U NDERSTANDING THE T HREAT , R ESPONDING TO THE C HALLENGE (2002) . . . . . . . . . . . . . . . . . . . . . 27 Mark A. Godsey, Miranda's Final Frontier The International Arena: A Critical Analysis of United States v. Bin Laden, And a Proposal for a New Miranda Exception Abroad , 51 D UKE L.J. 1703 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16 2 W. H AWKINS , P LEAS OF THE C ROWN (8th ed. 1824) . . . . 14 OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 270 F.3d 852. The order denying rehearing (Pet. App. 31a-32a) is unreported. The district court's opinion granting in part and denying in part respondent's motion for summary adjudication (Pet. App. 15a-30a) is unreported. JURISDICTION The court of appeals' judgment was entered on October 30, 2001, and rehearing was denied on December 26 (Pet. App. 1a, 31a). The petition for certiorari was timely filed on March 26, 2002, and granted on June 3. This Court's jurisdiction rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment to the United States Constitution provides in part: "No person * * * shall be compelled in any criminal case to be a witness against himself." Section 1 of the Fourteenth Amendment provides in part: "No State shall * * * deprive any person of life, liberty, or property without due process of law." 42 U.S.C. 1983 provides in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * *." STATEMENT This case arises from the aftermath of a tragic struggle between respondent Oliverio Martinez and two police officers who were investigating suspected narcotics activities. In the course of a search and subsequent altercation, respondent apparently took control of a firearm from one of the officers. The second officer fired several shots at respondent, causing him severe injuries. Petitioner Ben Chavez, a patrol supervisor, arrived on the scene thereafter and accompanied respondent to the hospital. There, intermittently over the course of about 45 minutes, 2 1 "C.A. App." refers to the Excerpts of Record filed in the court of appeals. petitioner questioned Martinez about the officer-involved shooting. None of respondent's statements, however, was ever used against him in a criminal case. Even so, the Ninth Circuit, relying on its previous en banc decision in Cooper v. Dupnik , 963 F.2d 1220, cert. denied, 506 U.S. 953 (1992), held that petitioner's interrogation violated respondent's rights under the Compulsory Self-Incrimination Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment, and that a defense of qualified immunity could not be invoked in respondent's lawsuit under 42 U.S.C. 1983. 1. On November 28, 1997, police officers Maria Pea and Andrew Salinas were investigating suspected narcotics activity near a vacant lot in a residential area of Oxnard, California. Pet. App. 2a. The officers had previously received information that narcotics were being sold from a shed located on the property. C.A. App. 171. 1 While questioning one individual, Salinas and Pea heard a bicycle approaching on the darkened path that traversed the lot. Salinas ordered the rider, respondent Martinez, to stop, dismount, spread his legs, and place his hands behind his head. Respondent complied. Pet. App. 2a-3a. As Salinas approached Martinez to perform a search, respondent began to run, fearing that Salinas would discover a knife that he had concealed in the back of his trousers. C.A. App. 38-39, 308. A struggle ensued. According to Pea's deposition testimony, respondent reached behind him as if to draw his knife; Pea grabbed the knife and threw it some distance from the combatants. C.A. App. 180-181. At some point in the mle, Martinez apparently obtained control of Salinas's handgun. C.A. App. 39, 209. According to the two officers, there was a struggle for control of the weapon, with Martinez pointing the barrel multiple times in the direction of both Salinas and Pea. C.A. App. 184-85, 211. Salinas, convinced that Martinez was going 3 to kill him (C.A. App. 209), cried out, "He's got my gun." Pet. App. 3a. Pea drew her weapon and fired several times. One bullet penetrated respondent's left eye and damaged the optic nerve of his other eye, rendering him blind. Another bullet fractured a vertebra, paralyzing respondent's legs. Three more bullets hit respondent's leg. Ibid . Petitioner Chavez, a patrol supervisor, arrived on the scene minutes later with paramedics. Pet. App. 3a. After speaking with the two officers, Sergeant Chavez accompanied respondent to the hospital. Id . at 3a-4a. There, in the presence of medical personnel, petitioner sought to learn from respondent precisely what had happened in the incident. C.A. App. 98-99, 111-113, 228, 270. The interview lasted only 10 minutes and 7 seconds of actual conversation, spread out over a 45-minute period, with Chavez remaining outside the emergency room for periods of time to permit medical personnel to attend to Martinez. Pet. App. 4a; C.A. App. 451. In response to petitioner's questions, respondent acknowledged that he had been shot because he was fighting with the police (J.A. 11); that he had "pulled" Salinas's gun (J.A. 15; see also J.A. 16); that he had "pointed" the gun at Salinas (J.A. 16; see also J.A. 17); that he used heroin every day, including that very evening (J.A. 18); and that he had been drinking that day as well (J.A. 17-18). Martinez also stated that he was in enormous pain, thought he was dying, and wanted treatment. J.A 20-22; see also J.A. 11-12. Based on his observations of Martinez's condition and respondent's state- ments, Chavez believed that respondent would die from his injuries. C.A. App. 38, 114, 452-453; J.A. 11-12, 20-22. 2. Respondent thereafter filed a complaint under 42 U.S.C. 1983 alleging that the officer defendants had violated his constitutional rights by stopping him without probable cause (in violation of the Fourth Amendment), using excessive force (also in violation of the Fourth Amendment), and subjecting him to a coercive interrogation while he was receiving medical care (in violation of the Fifth, Eighth, and Fourteenth Amend- ments). Pet. App. 4a-5a. 4 2 The district court denied respondent's motion insofar as it sought summary adjudication of respondent's Eighth Amendment challenge to his interrogation and Fourth Amendment challenge to his stop and detention. Pet. App. 23a-25a. No issue under the Fourth or Eighth Amendment was before the court of appeals or is before this Court. The defendants (including petitioner) asserted a qualified immunity defense, contending that they could not reasonably have known, at the time of the events in question, that their conduct violated "clearly established" constitutional rights. In that connection, defendants drew particular attention to the purpose of petitioner's interrogation: "to preserve the key non- police witness's account of events before the individual expires." C.A. App. 445. Defendants asserted that a "careful reader" of the governing case law would not have known that this interrogation, "designed to preserve a dying witness's account," would be unconstitutional. C.A. App. 447-448. The district court granted partial summary judgment in respondent's favor, holding that petitioner could not invoke a qualified immunity defense to respondent's Fifth and Four- teenth Amendment challenges to the interrogation. Pet. App. 15a-30a. 2 The court first addressed the question whether a con- stitutional violation had been established at all. Although re- spondent had not been prosecuted, nor had his statement been offered into evidence at any criminal trial, the district court held that "[t]he test" for purpose of a Section 1983 claim under both the Fifth and Fourteenth Amendments was "whether, consid- ering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Id . at 19a. Examining "the totality of the circumstances in this case," the district court held that respondent's "statement was not voluntarily given," in violation of both the Fifth and Fourteenth Amendments. Id . at 22a-23a. The district court next rejected Chavez's defense that he had not violated any "clearly established" right. Pet. App. 25a- 29a. The court recognized that "[p]ublic officials exercising 5 discretionary authority are entitled to qualified immunity from suit where their actions `[do] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id . at 26a (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) (brackets by the district court)). Nev- ertheless, the court explained, "[t]he law against coerced con- fessions was clearly established at the time of [respondent's] interview," and "no reasonable officer would believe that an interview of an individual receiving treatment for life-threaten- ing injuries that resulted in blindness, paralysis, and excruciat- ing pain was constitutionally permissible." Pet. App. 29a. The court noted Chavez's contention that he was not "trying to build a criminal case" against Martinez when he questioned him, but rather was seeking "to preserve a dying witness's account" of an officer-involved shooting. Pet. App. 28a-29a; C.A. App. 447-448. The district court dismissed that distinction, however, because Chavez "had no knowledge of whether or not a prosecutor would charge [Martinez] if he survived." In any event, the district court added, Chavez "was clearly trying to obtain information that could clear the officers of wrong-doing." Pet. App. 29a. 3. The Ninth Circuit affirmed. Pet. App. 1a-14a. The court first held that respondent had "stated a prima facie claim that Chavez violated one of his constitutional rights." Id . at 6a (citing Saucier v. Katz , 533 U.S. 194, 200 (2001)). With respect to the Fifth Amendment claim, the court ruled that "Chavez's coercive, custodial questioning violated [respon- dent's] substantive Fifth Amendment right against compulsory self-incrimination." Pet. App. 8a. Relying on its own en banc decision in Cooper v. Dupnik , 963 F.2d 1220, cert. denied, 506 U.S. 953 (1992), the Ninth Circuit stated (Pet. App. 8a, 9a) that "a Fifth Amendment violation occurs when a police officer coerces self-incriminating statements from a suspect in custody," even if those statements are never "used against" the suspect "in a criminal proceeding." The panel "recognize[d]" ( id . at 10a n.3) what it termed "dicta to the contrary" in this Court's decision in United States v. Verdugo-Urquidez , 494 6 U.S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a consti- tutional violation occurs only at trial.") (citation omitted). The Ninth Circuit considered it appropriate, however, "to follow [its] own binding precedent rather than Supreme Court dicta." Pet. App. 10a n.3. The court of appeals next reached the same result under the Due Process Clause of the Fourteenth Amendment. Pet. App. 10a-11a. Quoting from Cooper , the court held that "coercive behavior of law-enforcement officers in pursuit of a confession" is sufficient, without more, to constitute a due process violation. Ibid . Finally, the panel held that the rights in question were clearly established. Pet. App. 11a-14a. The court acknow- ledged that, to overcome a claim of qualified immunity, "[t]he contours" of the constitutional right at issue "`must be suffi- ciently clear that a reasonable official would understand that what he is doing violates that right.'" Id . at 11a (quoting Ander- son v. Creighton , 483 U.S. 635, 640 (1987) (emphasis added)). The panel recognized, as well, that such an inquiry necessarily turns on "the specific facts of this case." Pet. App. 12a. Never- theless, the Ninth Circuit concluded that "[a] reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings, and who was receiving medical treatment for excruci- ating, life-threatening injuries that sporadically caused him to lose consciousness, would have known that persistent interroga- tion of the suspect despite repeated requests to stop violated the suspect's Fifth and Fourteenth Amendment right to be free from coercive interrogation." Ibid . In that connection, the panel asserted that this Court in Mincey v. Arizona , 437 U.S. 385 (1978), had held "a virtually indistinguishable interrogation" to be unconstitutional. Pet. App. 12a-14a. Indeed, the panel held, "[t]o the extent Sergeant Chavez's conduct differs from that of the officers in Mincey , it is more egregious" (Pet. App. 13a) 7 notwithstanding petitioner's contention that, unlike Mincey , the interrogation in this case was undertaken "to preserve the account of a moribund key witness," not "to obtain incriminating statements." C.A. Opening Br. 18, 19. SUMMARY OF ARGUMENT A. In deciding whether a defense of qualified immunity may be overcome, courts must "determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, only then should a court ask whether the right alleg- edly implicated was clearly established at the time of the events in question." County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5 (1998). Respondent's constitutional claims fail at this threshold: Neither the Compulsory Self-Incrimination Clause of the Fifth Amendment, nor the Due Process Clause of the Fourteenth Amendment, provides a basis for respondent's challenge to the interrogation in this case. 1. As this Court explained in United States v. Verdugo- Urquidez , 494 U.S. 259, 264 (1990), "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. * * * Although conduct by law enforcement officials prior to trial may ulti- mately impair that right, a constitutional violation occurs only at trial." That statement which the court below erroneously disregarded as mere "dicta" follows naturally from the text of the Compulsory Self-Incrimination Clause, which protects a declarant only from being "compelled in any criminal case to be a witness against himself." U.S. C ONST . Amend. V (em- phasis added). This Court's cases reflect that fundamental limitation: As long ago as Brown v. Walker , 161 U.S. 591 (1896), and as re- cently as United States v. Balsys , 524 U.S. 666 (1998), the Court has made clear that the Fifth Amendment is not violated merely by coercive questioning or even questioning that elicits otherwise incriminating statements so long as none of the compelled statements is used against the witness in a crim- inal case. Because none of respondent's statements to Chavez 8 has ever been used against him in a criminal case, there was no violation of respondent's Fifth Amendment rights. 2. Nor does coercive questioning, without more, violate the Fourteenth Amendment. This Court has never concluded that an interrogation alone can give rise to a claim under the Fourteenth Amendment. Instead, for the past 70 years, this Court has repeatedly explained that the prohibition against use of coerced confessions is grounded in the right to a fair trial. See Brown v. Mississippi , 297 U.S. 278, 285-287 (1936); Dickerson v. United States , 530 U.S. 428, 435 n.1 (2000). Thus, the Fourteenth Amendment right that has been discussed in this Court's "voluntariness" cases, like the Fifth Amendment privilege against compelled self-incrimination, is irrelevant when there has been no use of a compelled statement in a criminal trial. There may well be a "substantive" due process right to be free of particularly brutal forms of police questioning, regard- less of whether the resulting statement is used in a criminal trial. For three independent reasons, however, respondent has failed to assert a sustainable claim under a traditional substan- tive due process analysis. First, contrary to the Ninth Circuit's conclusion below and in Cooper , 963 F.2d at 1248, there is no "right to silence." As the Seventh Circuit has correctly con- cluded, for purposes of substantive due process analysis "[t]he relevant liberty is not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation." Wilkins v. May , 872 F.2d 190, 195 (1989). Second, respondent has not alleged that petitioner intended to injure respondent, as is required to establish a substantive due process claim under County of Sacramento v. Lewis, supra . Third, not only must a high threshold be met before sub- stantive due process analysis applies at all, but also the govern- mental interests at stake must be weighed against the liberty infringed before it can be concluded that an officer's conduct "shocks the conscience." That is true in this as in any other 9 category of substantive due process cases, indeed any category of due process cases. Respondent's interest in avoiding Chavez's questioning was outweighed by the competing gov- ernmental interests at stake in the exigent circumstances of this case. Chavez had entirely legitimate interests in obtaining respondent's version of the facts before respondent's anticipated imminent death. Chavez engaged in no particularly egregious behavior to aggravate the unpleasantness inherent in trying to obtain information from a person in urgent need of medical attention and thought to be dying. For those reasons, there was clearly no violation of substantive due process. B. In all events, respondent cannot plausibly maintain that the interrogation in this case violated a right under the Fifth or Fourteenth Amendments that was "clearly established" at the time of the interrogation. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted ." Saucier v. Katz , 533 U.S. 194, 202 (2001) (emphasis added). 1. With respect to the Fifth Amendment, all that was "clearly established" at the time of the interrogation is that coer- cive questioning, without an actual "use" of the compelled statements, does not violate the Fifth Amendment. But even if the Ninth Circuit's contrary understanding of the Fifth Amend- ment is correct, surely that contrary view was not "clearly established" as of November 28, 1997. Rather, seven years before the interrogation in this case, this Court had stated in Verdugo-Urquidez that the Fifth Amendment is not violated unless and until there is an adverse use of a compelled state- ment at a criminal trial. Petitioner cannot be held liable in damages for taking an action permitted by this Court's case law, simply because a court of appeals later characterizes this Court's statement as "dicta." What is more, the basis for the panel's contrary ruling the Ninth Circuit's en banc decision in Cooper had been rejected by every other circuit to have considered the issue. Thus, even if petitioner had consulted a law library while en route to the hospital, it is not "clear" that 10 he reasonably should have discerned the Fifth Amendment standard adopted by the Ninth Circuit in this case. 2. The Ninth Circuit's holding that the Fourteenth Amendment prohibits all coercion of statements, regardless of subsequent use in a criminal trial, is just as wrong as its Fifth Amendment holding. At a minimum, that controversial holding finds no support in this Court's cases and thus cannot be "clearly established." Nor was it "clearly established" that conduct such as that of Chavez violates the Fourteenth Amendment under a "shocks the conscience" analysis. Given the fact-intensive nature of the test, such a conclusion is highly implausible from the outset. Numerous police invasions of bodily integrity for the purpose of preserving evidence have been held not to shock the conscience, making it at the very least unclear that non-invasive questioning for the same purpose would do so. Cooper , though it did involve non-invasive questioning, depended on highly unusual and distinguishable facts, including the conceded absence of any exigency. Numerous courts of appeals have rejected due process claims involving police questioning less justified and more aggressive than the questioning in this case. No case has ever held that a police officer violated substantive due process in circumstances materially similar to this case. 3. Mincey v. Arizona did not hold that the suspect should have a civil rights claim against his interrogators, but only that his statement could not be used at a criminal trial. It was thus categorically inappropriate to cite Mincey as a decision putting Chavez on notice that his conduct violated substantive due pro- cess. In any event, even if Mincey and other admissibility cases are regarded as defining the contours of the substantive due pro- cess right, there are important distinctions between Mincey and this case. Most particularly, the non-exigent interrogation of a witness (Mincey) who was not even able to speak is wholly different from the exigent interrogation of an articulate, though severely injured, witness (Martinez). Chavez's effort to obtain a dying declaration from a witness to a police shooting violated no clearly established constitutional right. 11 ARGUMENT PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM BOTH THE FIFTH AND FOURTEENTH AMENDMENT CLAIMS ARISING FROM HIS INTERROGATION OF RESPONDENT A. Petitioner's Interrogation Of Respondent Did Not Violate The Fifth Or Fourteenth Amendment "The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer , 122 S. Ct. 2508, 2513 (2002); accord Saucier v. Katz , 533 U.S. 194, 201 (2001); Wilson v. Layne , 526 U.S. 603, 609 (1999); Conn v. Gabbert , 526 U.S. 286, 290 (1999); Siegert v. Gilley , 500 U.S. 226, 232 (1991). Only if respondent has made out a constitutional claim in the first place need the Court consider whether that claim was "clearly established" at the time of the interrogation. As we show below, neither the Fifth Amend- ment's Compulsory Self-Incrimination Clause, nor the Four- teenth Amendment's Due Process Clause, was violated by the interrogation in this case. 1. Because Respondent's Statements Were Never Used Against Him In A Criminal Case, There Was No Infringement Of His Privilege Against Compul- sory Self-Incrimination a. The Ninth Circuit held that, "[e]ven though Martinez's statements were not used against him in a criminal proceeding, Chavez's coercive questioning violated Martinez's Fifth Amendment rights." Pet. App. 9a-10a. In the panel's view, "the Fifth Amendment's purpose is to prevent coercive interrogation practices that are `destructive of human dignity.'" Id . at 9a. Accordingly, the court concluded, "a Fifth Amendment violation occurs when a police officer coerces self-incrim- inating statements from a suspect in custody." Pet. App. 8a. The panel based that ruling on the en banc decision in Cooper v. Dupnik , 963 F.2d 1220 (9th Cir. 1992). Cooper proof positive that hard cases make bad law was a Section 12 3 Judge Leavy, joined by Judges Alarcn and Brunetti, also wrote a separate dissent. 963 F.2d at 1256-1258. 1983 action against officers of the Tucson Police Department. The officers set out to obtain confessions from anyone they suspected of being the so-called "Prime Time Rapist," without regard to Miranda and through interrogation techniques calculated to break the witnesses down. The plaintiff was one such suspect, who despite conclusive evidence that he was not the perpetrator of the rapes was held incommunicado for some 24 hours and subjected to highly aggressive questioning, even after he asked (repeatedly) for counsel. The court of appeals evidently frustrated by a perceived pattern of misconduct by the Tucson Police Department (see id . at 1241 (citing Edwards v. Arizona , 451 U.S. 477 (1981)), and 963 F.2d at 1245 (citing Mincey v. Arizona , 437 U.S. 385 (1978))) held that the plaintiff could press both Fifth and Fourteenth Amendment claims against the police officers. In addressing the Fourteenth Amendment claim, the court of appeals in Cooper asked this central question: "Can the co- ercing by police of a statement from a suspect in custody ripen into a full-blown Constitutional violation only if and when the statement is tendered and used against the declarant?" 963 F.2d at 1244. "We think not," was the court's answer. Ibid . Relying on this Court's decision in Brown v. Mississippi , 297 U.S. 278 (1936), the court of appeals stated that "[t]he due process viola- tion caused by coercive behavior of law-enforcement officers in pursuit of a confession is complete with the coercive be- havior itself." Id . at 1244-1245. The court's Fifth Amendment analysis ( id . at 1238-1244) assumed likewise that a constitu- tional violation could be complete without use of the statement at trial, but offered no reasoning to support that assumption. Judge Brunetti, joined by Judges Leavy and Alarcn, dissented. 963 F.2d at 1253-1256. 3 After canvassing this Court's case law, Judge Brunetti observed that "it is the use of coerced statements that constitutes a Fifth Amendment viola- tion." Id . at 1254 (emphasis in the original). Here, the dissent 13 explained, Cooper "faced no trial and accordingly none of his statements were offered against him. The language of the amendment, then, suggests that there was no violation of the Fifth Amendment." Id . at 1254-1255. The dissent also con- cluded that Cooper's substantive due process rights had not been violated. Id . at 1255-1256. b. Judge Brunetti was exactly right in his Cooper dissent: The Ninth Circuit's understanding of the Fifth Amendment cannot be squared either with the text of the Amendment or with this Court's case law. The Compulsory Self-Incrimination Clause provides that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself." U.S. C ONST . Amend. V (emphasis added). The Clause does not forbid all compulsion, or even such compulsion that elicits potentially incriminating statements. Only if and when an individual is compelled to be a "witness" against himself "in a[] criminal case" is there a violation of the Compulsory Self-Incrimination Clause. And that final but crucial step occurs only if the compelled statement is used, either directly or derivatively, in an actual prosecution. True, a person may invoke the Fifth Amendment before use is made of the statement. "It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also `privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy , 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley , 414 U.S. 70, 77 (1973)). But while an early invocation of the Fifth Amendment may guard against a compromise of the privilege at a subsequent criminal proceeding, it is not until there is a use of the compelled statement "in a criminal case" that the Fifth Amendment has actually been breached. As this Court summarized the point in United States v. Verdugo-Urquidez , 494 U.S. 259, 264 (1990): 14 The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. * * * Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. See also Oregon v. Elstad , 470 U.S. 298, 306-307 (1985) (em- phasis added and deleted) ("[t]he Fifth Amendment prohibits use by the prosecution in its case in chief * * * of compelled testimony"); id . at 316 (characterizing a violation of the Fifth Amendment as "introducing an inadmissible confession at trial"); United States v. Hubbell , 530 U.S. 27, 41 (2000) (making "derivative use" of compelled testimony "in obtaining the indictment against respondent and in preparing its case for trial" constitutes Fifth Amendment violation); Estelle v. Smith , 451 U.S. 454, 464-465 (1981) (using "as evidence against [the defendant] the substance of his disclosures during the pretrial psychiatric examination" constitutes Fifth Amendment viola- tion); Culombe v. Connecticut , 367 U.S. 568, 581 (1961) (opinion of Frankfurter, J.) (Fifth Amendment protects witness against being made "`the deluded instrument of his own conviction'") (quoting 2 W. H AWKINS , P LEAS OF THE C ROWN 595 (8th ed. 1824)). The court below "recognize[d]" this Court's description of the privilege in Verdugo-Urquidez , but disregarded the state- ment as merely "dicta to the contrary." Pet. App. 10a n.3. That is a debatable account even of Verdugo-Urquidez itself; after all, "[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which [lower courts] are bound." Seminole Tribe of Florida v. Florida , 517 U.S. 44, 67 (1996). The Ninth Circuit has elsewhere defined "dictum" as a statement in an opinion that is "peripheral" and that as a result "may not have received the full and careful consideration of the court that uttered it." Ponderosa Dairy v. Lyons , 259 F.3d 1148, 1155 (2001), petitions for cert. pending, Nos. 01-950 and 01-1018. That is an odd way to describe a portion of the Verdugo-Urquidez opinion that this Court introduced with the remark "we think it 15 4 See also Wilkins v. May , 872 F.2d 190, 194 (7th Cir. 1989) ("The Fifth Amendment does not forbid the forcible extraction of informa- tion but only the use of information so extracted as evidence in a criminal case otherwise, immunity statutes would be unconstitutional."); Mark A. Godsey, Miranda's Final Frontier The significant to note" (494 U.S. at 264). And even statements that are "`technically dicta'" but are "`an important part of the Court's rationale for the result that it reache[s]'" are "`entitled to greater weight.'" Seminole Tribe , 517 U.S. at 67 (quoting Sheet Metal Workers , v. EEOC , 478 U.S. 421, 490 (1986) (O'Connor, J., concurring)). In any event, Verdugo-Urquidez simply summarized the meaning of the Fifth Amendment as elaborated in numerous other decisions of this Court. Those cases have made abundant- ly clear that the privilege against compulsory self-incrimination is not violated without the actual use of compelled testimony against the witness in a criminal case. The Court's testimonial immunity cases make the point most emphatically. Indeed, the Court in Verdugo-Urquidez cited the leading testimonial im- munity case, Kastigar v. United States , 406 U.S. 441 (1972), in support of its description of the metes and bounds of the Fifth Amendment. See 494 U.S. at 264. The question in Kastigar was whether a witness who was compelled to testify before a grand jury under a grant of use im- munity pursuant to 18 U.S.C. 6002 could invoke the privilege against compulsory self-incrimination. The Court held that he could not. "[I]mmunity from use and derivative use" of com- pelled testimony, the Court reasoned, "is coextensive with the scope of the privilege against self-incrimination." 406 U.S. at 453. Accordingly, the Court explained, use immunity, once conferred on a witness, "is sufficient to compel testimony over a claim of privilege." Ibid . The " sole concern" of the privilege, the Court made clear, "is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to * * * criminal acts ." Ibid . (emphasis added and internal quotation marks omitted). 4 16 International Arena: A Critical Analysis of United States v. Bin Laden , And a Proposal for a New Miranda Exception Abroad , 51 D UKE L.J. 1703, 1724 (2002) ("[I]f a law enforcement officer were to use brute force and torture to extract an involuntary confession from a suspect, the officer would not at that time have violated the privilege because the suspect would not yet have testified against himself at trial. * * * This distinction is made clear in the line of federal cases dealing with governmental grants of immunity to witnesses."); Steven D. Clymer, Are Police Free to Disregard Miranda ? , 112 Y ALE L.J. ___, ___ (forthcoming December 2002) (Section I.A.2) ("Immunity doctrine thus demonstrates that the privilege permits compulsion; it only imposes later restrictions on the government when it compels answers."). Kastigar confirms that mere coercion, even when it succeeds in eliciting otherwise incriminating statements, does not violate the Fifth Amendment without the actual use of the statements against the witness in a criminal case. Murphy v. Waterfront Comm'n of New York Harbor , 378 U.S. 52 (1964) on which Kastigar relied (406 U.S. at 455-459) makes the same point in a slightly different context. In that case, witnesses who had been subpoenaed to testify in certain state proceedings invoked the Fifth Amendment and refused to answer questions, despite the grant of immunity under state law. The witnesses contended that, while the im- munity grant might protect them from state prosecution, nothing in the applicable state immunity statutes purported to relieve them of federal prosecution. This Court held that the witnesses could be compelled to answer the Waterfront Com- mission's questions. The Court explained that, even if the state immunity statutes did not cover federal prosecution, the Fifth Amendment itself ensured that the witnesses would be immune from federal prosecution. "This exclusionary rule," the Court stated, "while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness 17 5 See also Clymer, supra , 112 Y ALE L.J. at ___ (Section I.A.3). had claimed his privilege in the absence of a state grant of immunity." 378 U.S. at 79. The "coercion" in the immunity cases derives from a sub- poena backed by the power of contempt, rather than from acts of physical or psychological intimidation. But that is if any- thing more reason why the immunity cases preclude any argu- ment that the government violates the Fifth Amendment when compelling testimony without using it. After all, as the Court has explained, "[t]estimony given in response to a grant of * * * immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant's will; the witness is told to talk or face the government's coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled." New Jersey v. Portash , 440 U.S. 450, 459 (1979). Time and again, the Court has made the same point: So long as the government makes no use (direct or derivative) of a compelled statement in a criminal case, a witness's Fifth Amendment rights have not been violated. This Court's Fifth Amendment "penalty cases" ( Minnesota v. Murphy , 465 U.S. at 434) illustrate the proposition as well. "In each of the so- called `penalty' cases, the State not only compelled an indi- vidual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions `capable of forcing the self- incrimination which the Amendment forbids.'" Ibid . (quoting Lefkowitz v. Cunningham , 431 U.S. 801, 806 (1977)). 5 The Court has generally struck down the penalties as violations of the Fifth Amendment. See, e.g. , Lefkowitz v. Cunningham , 431 U.S. at 806-809 (invalidating state law that divested attorney of a state political office for declining to waive Fifth Amendment protections); Lefkowitz v. Turley , 414 U.S. at 82-85 (invalidat- ing state law that precluded government contractors from secur- 18 ing future awards in the event of a refusal to waive Fifth Amendment protections). In each instance, however, the Court emphasized that, so long as the witness is immunized against the use of his statements in a subsequent prosecution, neither compulsion nor penalties would violate the Fifth Amendment: We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such use . Kastigar v. United States , [406 U.S. at 446]. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recog- nized by the power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Lefkowitz v. Turley , 414 U.S. at 84 (emphasis added). The Court has made the same point in many other cases. In Baltimore City Department of Social Services v. Bouknight , 493 U.S. 549, 561-562 (1990), the Court held that a witness could not decline, on Fifth Amendment grounds, to answer questions about the whereabouts of a child, but that the Fifth Amendment was available in the event she was later prosecuted, at which point there may be "limitations upon the direct and in- direct use of that testimony." See also Baxter v. Palmigiano , 425 U.S. 308, 316 (1976) ("if inmates are compelled in [prison disciplinary] proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered `whatever immunity is required to supplant the privi- lege' and may not be required to `waive such immunity'") (quoting Lefkowitz v. Turley , 414 U.S. at 85); McKune v. Lile , 122 S. Ct. 2017, 2025 (2002) ("[i]f the State of Kansas offered 19 immunity, the self-incrimination privilege would not be implicated"); cf. Simmons v. United States , 390 U.S. 377, 393- 394 (1968) (because a criminal defendant is effectively "compelled" to testify at a suppression hearing, for fear that not doing so will prejudice his chances to vindicate Fourth Amendment rights, any testimony he gives at such a hearing will be immunized against use at the subsequent criminal trial). The Ninth Circuit's construction of the Fifth Amendment according to which it may be violated by coercive questioning alone simply cannot be squared with these testimonial im- munity cases and penalty cases. Nor can the panel's novel rul- ing be reconciled with this Court's recent decision in United States v. Balsys , 524 U.S. 666 (1998). The witness in that case was subpoenaed by the Office of Special Investigations of the Department of Justice. That Office was investigating whether the witness had participated in Nazi persecution during World War II and was therefore subject to deportation. The witness resisted the subpoena, contending that his answers would subject him to foreign prosecution, allegedly in violation of the Fifth Amendment. This Court agreed with the witness that he was being "com- pelled" to testify and that he would thereby become a "witness against himself." 524 U.S. at 671. The Court held, however, that prosecution by another country does not constitute a "crim- inal case" for Fifth Amendment purposes. Because there was therefore no "risk that [the witness's] testimony will be used in a proceeding that is a `criminal case'" ( ibid .), the Fifth Amendment could not be invoked. Significantly, the Court rejected the very rationale on which the Ninth Circuit relied in this case. In the court of appeals' view, the Fifth Amendment must be broadly construed in order to guard against interrogation practices that are "`de- structive of human dignity.'" Pet. App. 9a (quoting Miranda v. Arizona , 384 U.S. 436, 457-458 (1966)). The defendant in Balsys made the same claim: that "`our respect for the inviola- bility of the human personality'" requires that the Fifth Amend- 20 6 For this proposition, the Court cited the very passage of Verdugo- Urquidez that the Ninth Circuit disregarded as "dicta." See 524 U.S. at 692. ment be construed to encompass fear of foreign prosecution. This Court emphatically disagreed. Were this "inviola- bility" rationale correct, the Court reasoned, then a violation of the Fifth Amendment like a violation of the Fourth Amendment would be "complete at the moment of illicit intrusion, whatever use may or may not later be made of their fruits." 524 U.S. at 692. 6 "The Fifth Amendment tradition, however, offers no such degree of protection. If the Govern- ment is ready to provide the requisite use and derivative use immunity, * * * the protection goes no further: no violation of personality is recognized and no claim of privilege will avail." Ibid . In short, the Court stated (quoting Verdugo-Urquidez ), "`the Fifth Amendment is a fundamental trial right of criminal defendants.'" Id . at 692 n.12. Not until a compelled statement is used against the witness in a (domestic) criminal trial has the Fifth Amendment been violated. Indeed, precisely because the Fifth Amendment privilege is a trial right designed to promote the fairness of criminal trials this Court declined to extend the rule in Stone v. Powell , 428 U.S. 465 (1976), to allegations that a statement was obtained in violation of Miranda . See Withrow v. Williams , 507 U.S. 680 (1993). Stone precludes the raising of Fourth Amendment claims in federal habeas review, recognizing that the exclusionary rule is designed simply "to deter future Fourth Amendment violations." 507 U.S. at 686. If, however, a con- stitutional claim addresses "`the fairness, and thus the legitima- cy, of our adversary process'" ( id . at 688), the rule in Stone will not apply. Unlike the Fourth Amendment, which protects privacy, the Fifth Amendment does not "serve some value necessarily divorced from the correct ascertainment of guilt." Withrow , 507 U.S. at 692. Rather, the privilege against compulsory self-in- crimination "serves to guard against `the use of unreliable state- 21 ments at trial .'" Ibid . (quoting Johnson v. New Jersey , 384 U.S. 719, 730 (1966) (emphasis added)). Thus, because the Fifth Amendment, including the "prophylactic" rules of Miranda , "safeguards `a fundamental trial right'" ( id . at 691 (quoting Verdugo-Urquidez ; emphasis in Withrow )), Stone does not bar the raising of Fifth Amendment claims in federal habeas review. This is further proof if any were needed that the Verdugo- Urquidez "dictum" correctly summarizes this Court's entire self-incrimination jurisprudence and shows that the Constitution really does mean what it says when it requires that a person be compelled "in a[] criminal case" to be a "witness" before there can be any Fifth Amendment violation. * * * * * In short, as the Court explained more than 100 years ago in Brown v. Walker , 161 U.S. 591, 600 (1896), this Court's Fifth Amendment cases "proceed upon the idea that the prohibition against [a witness's] being compelled to testify against himself presupposes a legal detriment to the witness arising from the exposure." In the absence of such a "detriment" the actual use of a compelled statement against the witness in a criminal case all the coercion in the world will not violate the Compul- sory Self-Incrimination Clause. The Ninth Circuit's contrary view cannot be sustained. 2. The Interrogation Did Not Violate Respondent's Due Process Rights a. The court of appeals held that "a police officer violates the Fourteenth Amendment when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial." Pet. App. 10a. That holding is wrong. The Due Process Clause of the Fourteenth Amendment serves as a "protection of the individual against arbitrary action of government." County of Sacramento v. Lewis , 523 U.S. at 845. It therefore imposes various limits on a State's right to act. Collins v. City of Harker Heights, 503 U.S. 115, 125-127 & n.10 (1992). Of particular relevance here are two ways in 22 which the Fourteenth Amendment restricts governmental power and correspondingly protects individual rights. First, the Fourteenth Amendment helps to ensure that an individual will not be deprived of liberty without a fair trial. Brown v. Mississippi , 297 U.S. 278, 285 (1936). That right includes a prohibition on the use at a criminal trial of involun- tary confessions that largely overlaps with the protections of the Fifth Amendment privilege. Second, under the doctrine known as "substantive due process," the Fourteenth Amendment limits the government's ability to infringe "fundamental liberty interests." Reno v. Flores , 507 U.S. 292, 301 (1993). That doctrine can include limitations on police brutality that shocks the conscience, Rochin v. California , 342 U.S. 165 (1951), perhaps including limitations on the infliction of physical or mental suffering through improper questioning techniques. Substantive due process, however, permits an imposition on protected interests when "`competing state interests * * * outweigh'" them. Washington v. Harper , 494 U.S. 210, 220 (1990) (quoting Mills v. Rogers , 457 U.S. 291, 299 (1982)). The prohibition against the use of an involuntary con- fession is one of the guarantees inherent in the State's duty to conduct a fair criminal trial. The Ninth Circuit's error in this case, and in Cooper (see 963 F.2d at 1248), is that the court of appeals has transformed that protection into an independent "right to avoid coercive questioning," guaranteed by substantive due process. The Fourteenth Amendment, however, does not go so far. True, it prohibits (as does the Fifth Amendment) the use of an involuntary confession in a criminal case. Dickerson v. United States , 530 U.S. at 434 ("We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily."); see also Colorado v. Connelly , 479 U.S. 157, 167 (1986) ("coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment"). But the Four- teenth Amendment does not give an individual a freestanding 23 let alone an unqualified "substantive right to silence." Cooper , 963 F.2d at 1248; see also Pet. App. 11a (referring to right "to be free from police coercion in pursuit of a confession"). In the seminal case of Brown v. Mississippi , this Court ex- plained that the prohibition on coerced confessions is grounded in the State's duty to conduct a criminal trial in a manner con- sistent with traditional notions of justice. The question there was whether convictions that rested on confessions "extorted * * * by brutality and violence" were consistent with due pro- cess. 297 U.S. at 279. The Court began its analysis by noting: The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental." Id . at 285 (quoting Snyder v. Massachusetts , 291 U.S. 97, 105 (1934)). Thus, the Court reasoned, "the rack and torture chamber may not be substituted for the witness stand." Id . at 285-286. Nor may "an accused * * * be hurried to conviction under mob domination." Id . at 286. Turning to the admissi- bility of an involuntary confession, the Court concluded that "the trial is equally a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence." Ibid . The use of the confessions therefore "was a clear denial of due process." Ibid . The Ninth Circuit in Cooper v. Dupnik cited Brown for just the opposite of the proposition for which it actually stands. According to the Ninth Circuit, this Court "in 1936 established clearly and beyond anyone's misapprehension the proposition that the Constitution, as a limit on the behavior of government officials, flatly prohibits coercion in the pursuit of a statement from a person suspected of a crime." 963 F.2d at 1244. Yet the passage the court immediately proceeded to quote, supposedly in support of that statement, says: "`Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of 24 all countries.'" Brown , 297 U.S. at 287 (emphasis added) (quot- ing Fisher v. State , 145 Miss. 116, 134, 110 So. 361, 365 (1926)), quoted in Cooper , 963 F.2d at 1244. Inexplicably, the Ninth Circuit claimed it to be "clear in this passage" that "the due process violation caused by coercive behavior of law- enforcement officers in pursuit of a confession is complete with the coercive behavior itself." 963 F.2d at 1244-1245. Subsequent decisions of this Court have confirmed that the constitutional concern is the effect of coerced confessions on the criminal trial process. The Court has therefore framed the issue as "whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession." Reck v. Pate , 367 U.S. 433, 435 (1961) (emphasis added). And recently, in Dickerson v. United States , the Court discussed its "cases based on the rule against admit- ting coerced confessions ." 530 U.S. at 433 (emphasis added); see id . at 435 n.1 (noting that they are based on the right to "a fair trial free from coerced testimony"). See also Jackson v. Denno , 378 U.S. 368, 385-386 (1964) ("It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions * * *.") (emphasis added); Beecher v. Alabama , 408 U.S. 234, 237 (1972) ("Under the due process clause, no conviction tainted by a confession so obtained can stand.") (emphasis added). This Court has therefore described the defendant's interest not as the right to be free of coercive interrogation, but instead as the "right to be free of a conviction based upon a coerced confession." Jackson , 378 U.S. at 377 (emphasis added) (invalidating New York procedure for deter- mining voluntariness of confession because it could not "with- stand constitutional attack under the Due Process Clause of the Fourteenth Amendment"). Consistent with these precedents, every authority on which the Ninth Circuit relied both here and in Cooper for the proposi- tion that coercive interrogation alone violated the Fourteenth Amendment (see Pet. App. 7a-8a, 10a-11a; 963 F.2d at 1244- 1249) addressed the use at a criminal trial of a coerced confession, not a freestanding right to be free from police 25 7 See Brown , 297 U.S. at 279 (discussing whether conviction may be based on confession "extorted" by "brutality and violence"); Miller v. Fenton , 474 U.S. 104, 109-110 (1985) (discussing admissibility of involuntary confession); Mincey v. Arizona , 437 U.S. 385, 396 (1978) (holding that involuntary statements could not be used against defen- dant at criminal trial); Davis v. North Carolina , 384 U.S. 737, 752- 753 (1966) (observing that coerced confessions are "constitutionally inadmissible in evidence"); Haynes v. Washington , 373 U.S. 503, 515 (1963) (addressing admissibility of involuntary confession); Lynumn v. Illinois , 372 U.S. 528, 537-538 (1963) (reversing conviction se- cured by admission of coerced confession as violative of due process); Blackburn v. Alabama , 361 U.S. 199, 211 (1960) (holding that admis- sion of involuntary confession violates due process); Spano v. New York , 360 U.S. 315, 320-321 (1959) (reversing conviction based on introduction of coerced confession); Ashcraft v. Tennessee , 322 U.S. 143, 155 (1944) (reversing conviction based on coerced confession). questioning. 7 Indeed, in every case but one we have found in which this Court has addressed the voluntariness of a confession, the issue was whether that confession could be used against the defendant at a criminal trial. The one exception is Justice Brandeis's opinion for a unan- imous Court in United States ex rel. Bilokumsky v. Tod , 263 U.S. 149 (1923), which addressed the admissibility of an in- voluntary confession in a civil trial. Far from supporting the Ninth Circuit's thesis that a due process violation occurs with- out the introduction of an involuntary confession in a criminal trial, Bilokumsky undermines that thesis by holding that the Constitution permits the introduction of involuntary confessions in civil trials: "since deportation proceedings are in their nature civil, the rule excluding involuntary confessions could have no application." Id . at 157; accord INS v. Lopez-Mendoza , 468 U.S. 1032, 1038-1039 (1984) ("Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation proceeding.") (citing Bilokumsky and other cases). 26 Accordingly, this Court's voluntariness cases stand only for the limited proposition that the Fourteenth Amendment bars the use at a criminal trial of a confession that is the product of coercion. They do not, as the Ninth Circuit claimed, hold that an individual has a right "to be free from police coercion in pursuit of a confession." Pet. App. 11a. The constitutional right at issue is a fair-trial right, not a freedom-from-interrogation right. It is both facile and quite wrong to think of suppression of evidence as merely a "remedy" for the constitutional violation (Pet. App. 8a n.2), rather than as required by this Court's decisions to think of admission of evidence in a criminal case as an indispensable part of the con- stitutional violation itself. Nor those precedents aside would it make any sense to say that the Due Process Clause of the Fourteenth Amendment forbids all governmental coercion of involuntary statements, aside from the use to which the compelled statements are put. Kastigar v. United States and the other testimonial immunity precedents would become dead letters under such a holding, no less than they would under a holding that the Fifth Amendment privilege against compelled self-incrimination operates in this manner. If the Fourteenth Amendment forbids all coercion at the state and local level, then the Fifth Amendment's Due Process Clause forbids all coercion at the federal level too, and a grant of testimonial immunity cannot solve the problem. All a federal witness needs to do to avoid testifying despite a grant of use immunity, then, is to invoke the Due Process Clause rather than the Compulsory Self-Incrimination Clause of the Fifth Amendment. But that cannot possibly be the right analysis, especially in light of the open-ended and flexible analysis typical of due process. See Washington v. Glucksberg , 521 U.S. 702, 720 (1997); Medina v. California , 505 U.S. 437, 443 (1992); Poe v. Ullman , 367 U.S. 497, 541 (1961) (Harlan, J., dissenting). One can easily imagine a situation in which a rational con- ception of the Due Process Clause and one entirely consistent 27 8 But cf. Leon v. Wainwright , 734 F.2d 770, 773 & nn.5-6 (11th Cir. 1984) (although police used physical force to learn where a suspect was hiding the victim of his kidnaping, a subsequent statement, made after a sufficient "break in the chain of events," was admissible), cited in A. D ERSHOWITZ , W HY T ERRORISM W ORKS : U NDERSTANDING THE T HREAT , R ESPONDING TO THE C HALLENGE 135, 247 n.3 (2002). with this Court's precedents would require suppression of a confession from the criminal trial as "involuntary" and yet would not condemn, under substantive due process analysis, the police officers who coerced the confession. Suppose John Doe suspect has been arrested for kidnaping a small child who cannot survive without immediate adult intervention. The child is being hidden somewhere, and time is running out on his life. A police officer (without physical violence) threatens, cajoles, and pressures John Doe into confessing to the kidnaping and disclosing the whereabouts of the child. His will overborne, John Doe confesses and the child is rescued. May John Doe's confession be used in his subsequent criminal trial? No. It is involuntary, and due process will not permit the trial to be "tainted by a confession so obtained." Beecher , 408 U.S. at 237. 8 May John Doe sue the government under Section 1983 for a Fourteenth Amendment violation? The answer should also be no. He has no liberty interest in inhibiting the investigation of a serious crime and, even if he did, that interest is outweighed by the government's interest in solving the crime and saving the victim. Nothing in this Court's due process jurisprudence even remotely suggests that the child's life must be sacrificed to protect some interest of John Doe's beyond his right not to have an involuntary confession used against him. b. The foregoing analysis shows that the Ninth Circuit was misguided in concluding that any action that requires sup- pression of evidence must necessarily constitute a due process violation even when there is no attempt to introduce a confes- sion at a criminal trial. But we need not and do not argue in this 28 case that the Fourteenth Amendment places absolutely no limits on police questioning in the absence of use of the statements thereby obtained. Rather, this Court's substantive due process jurisprudence is broad enough to condemn certain police ques- tioning tactics outright but only if they are intentional, brutal, and unjustified by legitimate state interests. See Wilkins v. May , 872 F.2d at 195 ("We do not undertake to specify a partic- ular threshold, a task that may well exceed our powers of articu- lation. But it is a high threshold, and to cross it Wilkins and plaintiffs like him must show misconduct that a reasonable per- son would find so beyond the norm of proper police procedure as to shock the conscience, and that is calculated to induce not merely momentary fear or anxiety, but severe mental suffering, in the plaintiff."). i. The "`[s]ubstantive due process' analysis must begin with a careful description of the asserted right." Flores , 507 U.S. at 301. See also County of Sacramento v. Lewis , 523 U.S. at 841 n.5. It protects only a narrow category of rights: As Justice Stevens observed for a unanimous Court, "the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Collins , 503 U.S. at 125. In other words, "[t]he doctrine of judicial self- restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." Ibid .; accord Flores , 507 U.S. at 302. This Court's "cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense, thereby recognizing the point made in different circumstances by Chief Justice Marshall, that it is a constitution we are expounding." County of Sacramento v. Lewis , 523 U.S. at 846 (internal quotations and citations omit- ted, emphasis in original). What right, then, is respondent claiming was violated by Chavez's interrogation? There is no evidence that petitioner hit, beat, or otherwise caused any physical harm to respondent. Nor is there any evidence that petitioner's conduct exacerbated 29 9 Although respondent alleged in his pleadings that petitioner inter- fered with his medical treatment, the record establishes otherwise (see, e.g. , C.A. App. 90, 115, 271, 272), and both the district court and the court of appeals recognized that medical personnel treated respondent throughout Chavez's questioning. Pet. App. 4a, 18a. 10 In a different context, the Court unanimously reiterated in Collins v. Harker Heights , 503 U.S. at 128, that what matters for purposes of respondent's injuries, or prolonged his stay in the hospital. To the contrary, the Ninth Circuit found it undisputed in the record that emergency personnel treated respondent and that petitioner ceased his questioning to permit tests and other procedures to be performed. Pet. App. 4a. 9 Indeed, the record is devoid of any evidence that peti- tioner's conduct had any tangible effect on respondent other than eliciting answers to questions. Instead, the right asserted by petitioner encompasses nothing more than respondent's wish to be left alone as he suffered from preexisting injuries. As described by the Ninth Circuit, it is simply the "right to be free of police coercion" (Pet. App. 11a), or the "right to silence." Cooper , 963 F.2d at 1248. In concluding that such a "right" is one of the categories of interests protected by the Fourteenth Amendment, the Ninth Circuit broke new ground. This Court has never held that police questioning alone whether wanted or not, whether coercive or not infringes a fundamental liberty interest pro- tected by the Fourteenth Amendment. And to do so would extend the reach of the Due Process Clause far beyond anything this Court has ever considered appropriate. Although it has been held that an extreme act of physical violence to a person, such as pumping a suspect's stomach to obtain evidence, will violate due process if it "shocks the conscience" ( Rochin , 342 U.S. at 172), not every police action that may harm or offend an individual implicates the Fourteenth Amendment. See Schmerber v. California , 384 U.S. 757, 760 (1966) (distinguishing Rochin ); Breithaupt v. Abram , 352 U.S. 342, 436-437 (1957) (same). 10 Rather, "[t]he relevant liberty is 30 substantive due process is whether the conduct at issue "can properly be characterized as arbitrary, or conscience shocking, in a constitu- tional sense." not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation." Wilkins v. May , 872 F.2d at 195 (emphasis added). In Bowers v. Hardwick , this Court rejected the argument that the Due Process Clause includes a fundamental right to engage in homosexual sodomy. 478 U.S. 186, 191 (1986). The Court noted that, when announcing rights not readily identi- fiable from the Constitution's text, "the Court has sought to identify the nature of the rights qualifying for heightened judicial protection" including only those "that are `implicit in the concept of ordered liberty' such that `neither liberty nor justice would exist if [they] were sacrificed.'" Id . at 191-192 (quoting Palko v. Connecticut , 302 U.S. 319, 325, 326 (1937)). "[F]undamental liberties" comprise only "those liberties that are `deeply rooted in this Nation's history and tradition.'" Bowers , 478 U.S. at 192 (quoting Moore v. City of East Cleveland , 431 U.S. 494, 503 (1977)). The "right" to be free of police questioning is not "deeply rooted in this Nation's history and tradition." Indeed, quite the opposite is true. "It is an act of responsible citizenship for indi- viduals to give whatever information they may have to aid in law enforcement." Miranda v. Arizona , 384 U.S. at 477-478. See also New York v. Quarles , 467 U.S. 649, 665 (1984) (O'Connor, J., concurring in the judgment in part and dissenting in part) (describing duty to aid law enforcement as a "deeply rooted social obligation"). It is therefore permissible to consid- er, as one factor in sentencing, a defendant's refusal to cooper- ate with a criminal investigation. "This deeply rooted social obligation [to report criminal behavior] is not diminished when the witness to [the] crime is involved in the illicit activities himself." Roberts v. United States , 445 U.S. 552, 558 (1980). "Unless his silence is protected by the privilege against self- 31 11 In this respect, the Ninth Circuit went far beyond even its own Cooper v. Dupnik precedent, which cited and relied on abundant evidence of harmful intent by the questioning officers and noted that they made no claim of exigency to justify their questioning. 963 F.2d at 1223, 1224, 1225, 1226, 1229, 1232, 1236, 1237, 1238, 1243, 1248, 1249, 1250. incrimination * * * the criminal defendant no less than any other citizen is obliged to assist the authorities." Ibid . Indeed, the first Congress of the United States made it a crime for any person "who, `having knowledge of the actual commission of [certain felonies,] shall conceal, and not as soon as may be dis- close and make known the same to [the appropriate] authority." Ibid. ( quoting Act of Apr. 30, 1790, 6, 1 Stat. 113) (brackets in original). See also id . at 558 n.5 (discussing modern version of statute, 18 U.S.C. 4). Accordingly, what is deeply rooted in this tradition is not the right to be silent in the face of police questioning, but in- stead the duty to respond to those questions. It would be anomalous to hold that an individual has a "fundamental right" under the Fourteenth Amendment to refrain from engaging in conduct described by this Court as a "deeply rooted social obligation" of every citizen. ii. Even if the Ninth Circuit were correct that respondent had been deprived of a cognizable liberty interest in being free of police questioning, there is no allegation here that petitioner acted with the requisite level of intent. 11 In County of Sacra- mento v. Lewis , this Court held that there was no Section 1983 claim based on a violation of the Fourteenth Amendment against an officer involved in a high-speed police chase, which resulted in the death of a passenger, unless it was shown that the officer acted with the intent to harm the victim. The Court rejected the contention that it would be sufficient to show "deliberate indifference." 523 U.S. at 851. Contrasting a police chase with prison administration (as to which the "deliberate indifference" standard does apply), the Court recognized that "the police on an occasion calling for fast 32 12 Although the complaint alleges that petitioner interfered with respondent's medical treatment, there is no evidence in the record to that effect, nor did the Ninth Circuit rely on an interference with medical treatment as the basis for a due process claim. 13 The Court also briefly noted that an intent "to worsen [a suspect's] legal plight" might suffice to show a violation of the Four- teenth Amendment. 523 U.S. at 854. This phrase, it seems, is explained later in the opinion where the Court stated that the action have obligations that tend to tug against each other." 523 U.S. at 853. "They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made `in haste, under pressure, and frequently without the luxury of a second chance.'" Ibid . (quoting Whitley v. Albers , 475 U.S. 312, 320 (1986)). Accordingly, "when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates `the large concerns of the governors and the governed.'" Ibid . (quoting Daniels v. Williams , 474 U.S. 327, 332 (1986)). Like the officers involved in a high-speed police chase (or prison guards attempting to quell a riot (see Whitley , 475 U.S. 312)), petitioner here was dealing with a fast-moving situation, in haste, and under pressure. He was questioning the only non- police witness to an officer-involved shooting, who he thought (as did the witness) would die, and would do so soon. C.A. App. 452-453. Yet there is no allegation that petitioner intend- ed to harm respondent. The complaint states only that petitioner "with deliberate indifference interfered with the medical assistance to [respon- dent]." Am. Cplt. 13; 12 see also id . 17 (defendants, "with de- liberate indifference," subjected respondent to cruel and unusual punishment). The only motive or intent alleged is petitioner's "motive to extort a statement from [respondent]" ( id . 13) and petitioner's "motive to conspire with and protect" the officers. Id . 17. Under County of Sacramento v. Lewis , however, the requisite intent is the intent to harm the victim . 13 There is no 33 "officer's instinct was to do his job as a law enforcement officer, not to induce [the suspect's] lawlessness ." Id . at 855 (emphasis added). Here, too, Chavez's instinct was to do his duty as a law enforcement officer to gather evidence (see C.A. App. 452), not to "induce" any "lawlessness" on the part of respondent, who was of course incapacitated. allegation or evidence of such an intent here. Accordingly, peti- tioner did not have the mental state required to commit a violation of the Fourteenth Amendment. iii. There is still a third infirmity (and this one may be the gravest) with respondent's Fourteenth Amendment claim. In every substantive due process case, the infringement of a liberty interest must be balanced against the governmental interest in engaging in the infringing conduct. "[D]etermining that a person has a `liberty interest' under the Due Process Clause does not end the inquiry; whether [the individual's] constitu- tional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Cruzan v. Director, Missouri Department of Health , 497 U.S. 261, 279 (1990) (quoting Youngberg v. Romeo , 457 US. 307, 321 (1982)); see also Washington v. Glucksberg , 521 U.S. at 767-770 (Souter, J., concurring in the judgment). For example, although there is indisputably a liberty interest in bodily integrity (see Ingraham v. Wright , 430 U.S. 651, 674 & n.14 (1977)), that right cedes to the State's interest in collecting evidence in certain situations (see Schmerber , 384 U.S. at 770) as well as to the State's interest in protecting a mentally ill prisoner from himself and others. See Washington v. Harper , 494 U.S. 210, 223-225 (1990) (medicating prisoner against his will). Because both the district court and the Ninth Circuit believed that the precedents addressing the use of a coerced confession in a criminal proceeding dispositively resolved the Fourteenth Amendment claim (see Pet. App. 10a- 11a, 23a), however, neither court addressed the governmental interest involved in Chavez's conduct. 34 But the legitimate and compelling state interests in ques- tioning respondent are readily apparent. Petitioner was investi- gating an officer-involved shooting. He was attempting to ob- tain a statement from the only non-police witness to that shoot- ing the victim who everybody believed was about to die. Chavez therefore believed (and quite reasonably so) that, if he did not take respondent's statement immediately, the statement would be permanently lost. Of course, there is an "acknowledged need for police ques- tioning as a tool for the effective enforcement of criminal laws." Schneckloth v. Bustamonte , 412 U.S. 218, 225 (1973); see also Haynes v. Washington , 373 U.S. 503, 515 (1963) (same). And that need sometimes overrides a suspect's desire not to be inter- rogated. In In re Groban , 352 U.S. 330 (1957), the appellants raised a due process challenge to an Ohio statute governing the investigation of fires. The statute was designed to allow "the expeditious and expert ascertainment" of the cause of a fire by "the chief guardian of a community against the hazards of fires." Id . at 336 (Frankfurter, J., concurring). One aspect of the statute was to permit the Fire Marshal to conduct private hearings excluding any person, including lawyers for the witnesses. Id . at 331. The Court rejected the appellants' claim that the statute violated the Due Process Clause by depriving them of the assistance of their counsel. Analogizing the case before it to grand jury proceedings, where a witness has no right to counsel, the Court held that "[t]here is no more reason to allow the presence of counsel before a Fire Marshal trying in the public interest to determine the cause of a fire." 352 U.S. at 333. Groban , then, teaches that the government's interest in inves- tigating a crime or threat to public safety may override an individual's interest in not cooperating with that investigation. So too does New York v. Quarles , supra . There, a police officer followed a rape suspect into a supermarket and, upon apprehending the suspect, frisked him and discovered that his gun holster was empty. The officer asked the suspect where the 35 gun was. The suspect told him, and, at the subsequent criminal trial, the suspect's statement was excluded because the officer failed to give Miranda warnings before asking for the location of the gun. This Court held that the evidence was admissible: [I]f the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, sus- pects in Quarles' position might well be deterred from re- sponding. * * * Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area. 467 U.S. at 657. The Court therefore concluded that "the need for answers" in that situation "outweigh[ed]" the need for Miranda warnings. Ibid . Chavez had every legitimate interest in investigating whether there had been police misconduct in the shooting of Martinez. See, e.g. , Driebel v. City of Milwaukee , 298 F.3d 622, 644 (7th Cir. 2002) ("A police officer may be guilty of committing a battery by using unreasonable force in the apprehension of a suspect. * * * [W]e are convinced that the [Police] Department conducted a legally adequate inquiry by interviewing the victim, Joshua Schmidt, as well as numerous witnesses * * *."); Moran v. Clarke , 296 F.3d 638, 647-648 (8th Cir. 2002) (en banc) ("the serious business of weeding out police abuses" and the officers' interest in accurate factual determinations are both of constitutional significance). See generally Rizzo v. Goode , 423 U.S. 362, 379 (1976) (recognizing importance of, and lack of warrant for federal interference with, "the internal procedures of the Philadelphia police department" to investigate possible police misconduct). Indeed, Martinez asserts in the claims that remain pending in the district court that there was police misconduct. There is no reason why the constitutional analysis should entirely disregard the legitimate interest in gathering evidence that could support or refute that assertion. This interest in investigating crime and possible police mis- conduct is particularly compelling when as was the case here 36 there is a serious risk that evidence will be lost. In the Fourth Amendment context, an otherwise unconstitutional search may be permissible when there is a risk that evidence will be destroyed. A blood test may be taken even against the suspect's will if the "officer * * * might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Schmerber , 384 U.S. at 770 (internal quotation omitted). And the police may conduct a search without a warrant when there is a risk that the suspect will destroy the evidence of illegality. See Ker v. California , 374 U.S. 23, 41-42 (1963); see also Mincey , 437 U.S. at 394 (recognizing that risk that evidence might be lost or destroyed constitutes "exigent circumstances"). Just like the substantive due process component of the Fourteenth Amendment, the Fourth Amendment requires "a careful balancing of the nature and quality of the intrusion on the individual's * * * interests against the countervailing gov- ernmental interests at stake." Graham v. Connor , 490 U.S. 386, 396 (1989) (internal quotation marks omitted). If the risk of destruction of evidence is a sufficient justification to render an otherwise unreasonable search permissible under the Fourth Amendment, it logically follows that is a sufficiently compel- ling reason to outweigh any interest respondent may have had in resisting police questioning for purposes of the Fourteenth Amendment. There can be no doubt that petitioner "reasonably believed" ( Schmerber , 384 U.S. at 770) that evidence might be lost: all indications were that respondent would die, and, unless Chavez took his statement in the emergency room, respondent's account of what happened would die with him. Accordingly, respondent's challenge to petitioner's conduct does not allege a violation of the Fourteenth Amendment. 37 B. If Respondent Sustained A Constitutional Depriva- tion At All, The Constitutional Rights At Stake Were Not "Clearly Established" At The Time Of The Interrogation If, despite the foregoing analysis, respondent has made out a Fifth or Fourteenth Amendment violation in this case, "the next, sequential step is to ask whether the right was clearly es- tablished." Saucier v. Katz , 533 U.S. 194, 201 (2001). "This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition." Ibid . It is simple enough to say, for example, that police be- havior that "shocks the conscience" violates the Due Process Clause, but "that is not enough." Saucier , 533 U.S. at 202. Rather, as the Court emphasized in Anderson v. Creighton , 483 U.S. 635, 640 (1987) (emphasis added), "the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted ." Saucier , 533 U.S. at 202 (emphasis added); accord Wilson v. Layne , 526 U.S. 603, 615 (1999) ("the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly estab- lished"). Even if, as a "general proposition," it was clear that the Fifth or Fourteenth Amendment could sometimes be violat- ed without actual use of a compelled statement or extreme po- lice brutality, respondent would still have to show that, "in light of the specific context of the case," petitioner violated a "clearly established" right. Saucier , 533 U.S. at 202. In the absence of a precedent precisely on point, that hurdle is especially difficult for a plaintiff to surmount in this context because no police officer can be expected to predict with perfect accuracy the after-the-fact judgments of courts. "The line 38 between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, especially in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused." Haynes v. Washington , 373 U.S. 503, 515 (1963). See also Dickerson , 530 U.S. at 444 (quoting Haynes ). As we show below, respondent has utterly failed to show that petitioner's interrogation violated "clearly established" rights under either the Fifth or Fourteenth Amendments. 1. There Is No "Clearly Established" Fifth Amend- ment Right to Be Free From Coercive Questioning For the reasons stated in Section A.1, it was "clearly estab- lished" at the time of Chavez's interrogation that unless a compelled statement is actually used against the witness in a criminal case coercive questioning is not a violation of the Fifth Amendment. But if we are wrong about that, surely the opposite proposition was not clearly established at the time. To the contrary, fully seven years before the interrogation in this case, this Court had said quite plainly that "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. * * * Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." Verdugo-Urquidez , 494 U.S. at 264. True, this may arguably have been "dicta" in Verdugo- Urquidez , as the panel pointed out. But see pages 14-15, supra . That legal nicety, however, is apt to elude police officers who, like petitioner, are charged with taking quick action in high- pressure environments. Such officers "are supposed to act deci- sively and to show restraint at the same moment, and their deci- sions have to be made `in haste, under pressure, and frequently without the luxury of a second chance.'" County of Sacramento v. Lewis , 523 U.S. at 853. "Police officers are ill-equipped to pinch-hit for counsel" ( Oregon v. Elstad , 470 U.S. at 316) and cannot be expected to discern whether a statement by this Court was essential to its holding, much less determine that Supreme 39 14 In this case, petitioner's task would have been all the more daunting because, had he somehow thought to consult the en banc decision in Cooper , he would have found that only in connection with the substantive due process claim but not in regard to the Fifth Amendment did the majority consider whether the constitutional right "matur[es]" before any use is made of the compelled statement. Compare 963 F.2d at 1238-1244 (Fifth Amendment discussion) with id . at 1244-1250 (Fourteenth Amendment discussion). 15 See, e.g. , Gaylor v. United States , 74 F.3d 214, 217 (10th Cir. 1996) ("this court considers itself bound by Supreme Court dicta al- most as firmly as by the Court's outright holding, particularly when the dicta [are] recent and not enfeebled by later statements"); McCoy v. MIT , 950 F.2d 13, 19 (1st Cir. 1991) (same); Nichol v. Pullman Standard, Inc. , 889 F.2d 115, 120 n.8 (7th Cir. 1989) ("[t]his Court should respect considered Supreme Court dicta"). See also Stone Container Corp. v. United States , 229 F.3d 1345, 1349-1350 (Fed. Cir. 2000) ("[a]s a subordinate federal court, we do not share the Su- preme Court's latitude in disregarding the language in its own prior opinions"), cert. denied, 532 U.S. 971 (2001); Natural Resources Def. Council v. Nuclear Regulatory Comm'n , 216 F.3d 1180, 1189 (D.C. Cir. 2000) ("carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authorita- tive"); In re McDonald , 205 F.3d 606, 612 (3d Cir.) ("we should not idly ignore considered statements the Supreme Court makes as dicta" since the Court "uses dicta to help control and influence the many issues it cannot decide because of its limited docket"), cert. denied, 531 U.S. 822 (2000). Indeed, petitioner might have discovered that the Ninth Circuit itself at least in the absence of "binding" circuit precedent accords "due deference" ( United States v. Baird , 85 F.3d 450, 453 (9th Cir. 1996)) to Supreme Court dicta and does not "lightly ignore" such portions of this Court's decisions ( Staacke v. United States Secretary of Labor , 841 F.2d 278, 281 (9th Cir. 1988)). Court dicta should be ignored in favor of "binding precedent" of the court of appeals. Pet. App. 10a n.3. 14 What is more, if petitioner had had an entire law library at his disposal, he might also have discovered that some circuits accord significant weight to this Court's dicta. 15 Indeed, Judge Calabresi has opined that "lucid and unambiguous dicta 40 concerning the existence of a constitutional right can without more make that right `clearly established.'" Wilkinson v. Russell , 182 F.3d 89, 112 (2d Cir. 1999) (concurring opinion). Whether or not that is so, surely lucid and unambiguous dicta concerning the non existence of a constitutional right must without more preclude a holding that the right is "clearly established." What is more, had petitioner taken time to Shepardize or KeyCite the Cooper case, he would have discovered that the Ninth Circuit's ruling had been uniformly rejected by other cir- cuits. See, e.g. , Wiley v. Doory , 14 F.3d 993, 996 (4th Cir. 1994) (Powell, J., sitting by designation) (sustaining a defense of qualified immunity in a Section 1983 case founded on a Fifth Amendment claim and noting that the dissenters in Cooper made "persuasive arguments that the privilege against self- incrimination is not violated until the evidence is admitted in a criminal case"); Riley v. Dorton , 115 F.3d 1159, 1164 (4th Cir. 1997) (en banc) (rejecting Fifth Amendment claim, noting that, "[w]hile Fifth Amendment concerns can certainly be implicated prior to trial, the Supreme Court has declared that a Fifth Amendment violation occurs only when self-incriminating statements are introduced at trial, thereby compelling the defen- dant to `become a witness against himself'"); Giuffre v. Bissell , 31 F.3d 1241, 1256 (3d Cir. 1994) (sustaining a defense of qualified immunity in Section 1983 case founded on a Fifth Amendment claim, noting that "[t]he dissenting judges in Cooper presented a persuasive argument that the Fifth Amend- ment privilege against self-incrimination is not violated until evidence is admitted in a criminal case"); Wilkins v. May , 872 F.2d at 194 ("The Fifth Amendment does not forbid the forcible extraction of information but only the use of information so ex- tracted in a criminal case otherwise, immunity statutes would be unconstitutional."); Mahoney v. Kesery , 976 F.2d 1054, 1061-1062 (7th Cir. 1992) (characterizing the rule embraced by the Cooper majority as "more capacious" than the Seventh Cir- cuit had previously articulated); United States v. Palomo , 80 F.3d 138, 142 (5th Cir. 1996) (where defendant "has not 41 demonstrated that the Government has used any statements against him in these proceedings," he could not "demonstrate[] an actionable violation of his right against self-incrimination"). "If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." Wilson v. Layne , 526 U.S. at 603. 2. There Is No "Clearly Established" Fourteenth Amendment Right To Be Free From Coercive Questioning, In General Or In The Circumstances Of This Case As we showed above, if this Court were to conclude that it is a violation of the Fourteenth Amendment for a police officer to conduct an interrogation it would "break new ground" ( Flores , 507 U.S. at 302), something this Court is "reluctant" to do when asked to recognize a new substantive due process right. Collins , 503 U.S. at 125. This Court has never held that a coerced confession, in and of itself, violates due process; to the contrary, it has found coerced confessions problematic only in the context of their admission into evidence. Against this backdrop and especially in light of this Court's repeated statements emphasizing a citizen's duty to cooperate with a police investigation (see Miranda , 384 U.S. at 477-478) it could not possibly be "clearly established" that the interrogation of respondent violated the Fourteenth Amendment. Equally unthinkable is that it was "clearly established" that Chavez would shock the judicial conscience, and thereby violate the Fourteenth Amendment, by questioning respondent in the exigent circumstances of this case. Extreme police brutality specifically, forcible stomach pumping to extract evidence has been held to be so arbitrary and egregious that it "shocks the conscience." Rochin v. California , 342 U.S. at 172. But even the Rochin decision has not been extended to incidents of bodily injury, including blood tests on an unconscious suspect ( Breithaupt , 352 U.S. at 436-437 (distinguishing Rochin )) and on a suspect who refused to consent ( Schmerber , 384 U.S. at 760 (same)). 42 16 There are other marked differences between Cooper and this case. The interrogation in Cooper lasted four hours (963 F.2d at 1243), during which at least one of the interrogating officers determined that the suspect was in fact innocent. Id . at 1231-1232. And, perhaps particularly relevant for the inquiry into the existence of a due process right, Cooper did allege that he was deprived of a recognized property interest under the Fourteenth Amendment: he lost his job and was evicted from his residence. Cooper also established that he was traumatized by the encounter and later suffered post- traumatic stress syndrome. Id . at 1231. The Ninth Circuit also has limited the application of Rochin , holding that inserting a tube through a suspect's nose and forcing liquid through the tube into the suspect's stomach, so as to induce vomiting of narcotics, does not violate the Four- teenth Amendment. Blefare v. United States , 362 F.2d 870, 875-876 (9th Cir. 1966). Thus, what was "clearly established" at the time Chavez questioned respondent was that the battery of a suspect (unless extremely egregious) did not violate the Fourteenth Amendment. How then could a reasonable official know that conduct that does not even involve touching a suspect violates the Fourteenth Amendment under a "shocks the conscience" test? The only precedent of which we are aware that could have alerted petitioner to particular circumstances in which interroga- tion alone would be held to violate the Fourteenth Amendment is Cooper , supra . But the coercive behavior referred to in that case was dramatically different from petitioner's conduct here in at least two material respects. First, the officers in Cooper were acting pursuant to a preconceived plan designed to keep the suspect off the witness stand at trial (rather than run the risk that his stationhouse statements would be used against him): "The primary aggravating circumstance is the Task Force's purpose of making it difficult, if not impossible, for a charged suspect to take the stand in his own defense * * *." 963 F.2d at 1249; see also id . at 1224. Second, it was conceded that the officers were not facing exigent circumstances. Id . at 1236. 16 43 Petitioner was operating in a fundamentally different en- vironment than the officers in Cooper . Without a doubt, there were exigent circumstances here; respondent stated that he was dying and in fact appeared to be mortally wounded, so Chavez had no choice but to take the statement at the hospital or risk losing any chance for petitioner's version of events ever to be recorded. And Chavez could not possibly have been acting with a motive to keep respondent from testifying, as neither Chavez nor respondent believed that respondent would survive his injuries such that he would be able to testify in court. Cooper therefore did not give a reasonable officer acting "in haste [and] under pressure" ( Whitley v. Albers , 475 U.S. at 320), attempting to obtain a dying declaration from a seemingly moribund witness with no preconceived plan to keep the witness from testifying, fair notice that his conduct could violate substantive due process. Instead, a reasonable officer would have understood that " Cooper was decided under a highly-unusual set of facts." Giuffre , 31 F.3d at 1256. Ample precedent at the time of the events at issue here rejected on facts involving far less justifi- cation for police questioning than Chavez had, and often far more aggressive questioning the idea that police statements to, questions of, or even threats to an individual violated the Fourteenth Amendment. Just 15 days before the Ninth Circuit en banc decided Cooper , for example, the Eighth Circuit rejected a Section 1983 claim based on a police officer's threat to knock the plaintiff's teeth out if the plaintiff refused to answer the officer's questions while he was placed alone in the back seat of a police car. "Al- though such conduct is not to be condoned, [the officer's] alleged conduct failed to rise to the level of a brutal and wanton act of cruelty." Hopson v. Fredericksen , 961 F.2d 1374, 1379 (8th Cir. 1992) (internal quotations omitted). A reasonable officer reading Cooper and Hopson together would conclude either that Cooper turned on its unusual facts, or that the law in this area was so unsettled that no substantive due process right to be free of coercive police questioning could 44 predictably be applied to any particular factual setting. Either way, the officer who chose to go ahead with questioning, with justifications of exigency not present in Cooper (or Hopson ) and without the aggravating factors of Cooper (or Hopson ), could hardly be said to be on notice that he was violating "clearly established" substantive due process rights. See Wilson v. Layne , 526 U.S. at 603. In Yanez v. Romero , 619 F.2d 851, 854-855 (10th Cir. 1980), the Tenth Circuit held that a threat to use a catheter if the defendant did not "voluntarily" produce a urine sample did not violate substantive due process. See id . at 854 ("[T]he Rochin decision pretty much stands by itself and is limited to its particular facts."). In Robertson v. Plano City , 70 F.3d 21 (5th Cir. 1995), two police officers went to a 16-year-old suspect's home, obtained his confession to a car burglary without giving him Miranda warnings, and admonished him despite the alleged knowledge that the admonition was inaccurate that he would face adult felony penalties even though he was a juvenile. Id . at 22. The 16-year-old committed suicide the next morning. Ibid . Nevertheless, the court held that the complaint did not even state a claim for violation of substantive due process because the officers' alleged conduct "did not rise to the level of a `brutal' and `wanton act of cruelty.'" 70 F.3d at 25 (quoting Hopson v. Fredericksen , 961 F.2d at 1379). Again, no officer who studied the case law would conclude that a "clearly estab- lished" substantive due process right precluded questioning respondent to obtain what might be his dying declaration. The Seventh Circuit reassured police officers in 1989 that in substantive due process analysis it would " not * * * suggest that the federal courts should or will undertake to monitor the details of police interrogations, and to award damages whenever the police cross the line that separates coercive from non- coercive interrogation." Wilkins v. May , 872 F.2d at 195 (emphasis added). Rather, "calculated" efforts to inflict "severe mental suffering" would be required before that court would recognize a substantive due process claim for police questioning 45 17 If the decision in Cooper v. Dupnik was at all reconcilable with the larger body of federal case law, it is only because of the "shock the conscience" strand of analysis (963 F.2d at 1248-1250) and only because it did involve a calculated effort to inflict severe mental suf- fering. The present case does not share those characteristics. not involving the infliction of bodily harm. Ibid . 17 Thus, this Court's admonition in Wilson v. Layne is as relevant to respondent's claim under the Fourteenth Amendment as it is to his claim under the Fifth: when judges cannot agree on the constitutionality of a police practice, an officer cannot be held liable for misconstruing the law. 3. Mincey v. Arizona Did Not Clearly Establish That All Hospital Interrogations Constitute Fifth Amendment Or Substantive Due Process Violations Or That The Interrogation In This Case Constitut- ed A Violation The panel recognized that it was required to assess "the specific facts of this case" (Pet. App. 12a). In its view, how- ever, petitioner should have known that he was violating re- spondent's constitutional rights since his interrogation of Martinez was, if anything, "more egregious" than the "virtually indistinguishable" interrogation that led this Court to exclude the confession in Mincey v. Arizona , 437 U.S. 385 (1978). But even if Chavez had had the time to engage in a "color-matching of cases" ( Reck v. Pate , 367 U.S. 433, 442 (1961)) it is by no means "clear" that he should have determined that his interrogation landed on the wrong side of the line. First and foremost, the holding of Mincey was that "state- ments obtained as these were cannot be used in any way against a defendant at his trial ." 437 U.S. at 402 (emphasis added). As we have shown, it is not correct and certainly not "clearly established" that every precedent requiring exclusion of a statement from evidence on Fifth or Fourteenth Amendment grounds ipso facto requires the conclusion that the police violat- ed the Constitution by obtaining such a statement. It is not to the exclusion cases, but to the civil actions asserting civil rights 46 claims, that a reasonable officer or the Ninth Circuit should have turned for guidance, and those cases as discussed above do not support the Ninth Circuit's conclusion. For that reason alone, Mincey should not have been deemed to place Chavez on notice that his interrogation violated the Constitution. In any event, even if it were appropriate to read Mincey and other exclusion-of-statement cases as stating absolute standards for police conduct rather than prerequisites to admissibility, the Ninth Circuit's conclusion that this case is indistinguishable from Mincey would be wrong. Not only are there distinctions, but also those very distinctions have played a major role in the development of post- Mincey case law in the lower courts. And that is as it should be, considering that the relevant branch of analysis is the "open-ended" doctrine of substantive due process ( Collins , 503 U.S. at 125) and the necessarily fact-specific "shocks the conscience" test. Martinez was severely injured, just as Mincey was. But Mincey was subjected to "virtually continuous questioning" over a four-hour period. 437 U.S. at 396, 401. Here, respon- dent was questioned intermittently over a 45-minute time frame. Mincey was only occasionally coherent in his answers to ques- tions, all of which he had to write down because tubes had been inserted in his throat and nose, making him unable to speak. Id . at 398-399. To make matters worse, Mincey's "responses" were especially unreliable because the officer "reconstructed" the interrogation by filling in the questions after the interview, with the answers already in front of him. Id . at 396 n.11. Martinez, though horribly injured, was responsive in his answers, showed no evident signs of coma, and was fully able to speak, albeit with great pain. In Mincey , even medical per- sonnel had been impressed into urging Mincey to talk to the police. Id at 399. Respondent was questioned only by peti- tioner, without the involvement of medical attendants, who were present and treating him throughout the interrogation. Thus, it cannot truly be said that, compared to Mincey , it was "clearly established" that this interrogation violated substantive due process or the Fifth Amendment. 47 Court of appeals decisions rendered after Mincey (but before Chavez's investigation) would have given a reasonable officer even more reason to doubt that questioning respondent ran afoul of clear law. In at least four cases three of which expressly distinguish Mincey courts had held that statements made by suspects hospitalized for injuries were voluntary (and therefore admissible in court proceedings). The Ninth Circuit held that the statements made by a defendant while he was in an emergency room, in critical condition, suffering from a drug overdose, and having recently recovered consciousness were admissible. United States v. George , 987 F.2d 1428, 1431 (9th Cir. 1993). The court distin- guished Mincey because, among other things, Mincey was un- able to speak and his answers were sometimes incoherent. Ibid . The Second Circuit concluded that statements made by a hos- pitalized defendant in significant pain, with "tubes running in and out of his body" and a "poor command of the English language," who was dizzy and subject to relentless questioning, were not the product of coercion. Campaneria v. Reid , 891 F.2d 1014, 1020 (2d Cir. 1989). That court found Mincey inapplicable because, among other things, Mincey was unable to speak. The Ninth Circuit also concluded that statements made by a hospitalized patient in pain and under the influence of a pain-killing drug were admissible. United States v. Martin , 781 F.2d 671 (9th Cir. 1985). The Martin court distinguished Mincey , noting that Mincey could not talk, had received various drugs, and was questioned continuously for four hours. And in United States v. Lewis , 833 F.2d 1380, 1384-1385 (1987), the Ninth Circuit held that statements made by a suspect who had recently returned from surgery, and had just come out of a general anaesthetic, were voluntary. On top of those distinctions, no one thought Mincey was dying and would therefore be unavailable for later questioning. On the contrary, after an afternoon shooting, and after Mincey's treatment, Detective Hust of the Tucson Police Department went to the intensive care unit "[a]t about eight o'clock that evening" and "continued to question him until almost mid- 48 night." 437 U.S. at 396. Mincey protested "that he could answer more accurately the next day." Id . at 400-401. "Let's rap tomarrow [ sic ]," Mincey wrote. Id . at 401 n.17. That is hardly a record suggesting exigency, in marked contrast to this case, in which respondent "told [Chavez] he believed he was dying eight times." Pet. App. 4a. Persistent questioning of a seemingly dying witness may make judges (and many other people) squeamish, but that is not a constitutional violation, and unquestionably the possibility of the witness's imminent death creates a legitimate law enforcement interest in the preservation of evidence that was not present in Mince y. If petitioner indeed violated the Constitution, it can only be because that legitimate governmental interest does not outweigh respondent's liberty interest under a substantive due process analysis not because the distinction is unworthy of any consideration in the analysis. Nor should a reasonable officer be expected to forecast that the courts would completely disregard this major distinction between Martinez's situation and Mincey's. How, then, could Chavez have known in late 1997 that his questioning of respondent in an emergency room in an effort to preserve evidence was unconstitutionally "coercive," let alone brutal enough to "shock the conscience"? True, respondent was in pain. So were the defendants in George , Campaneria , and Martin yet none of their statements was held to be involuntary. According to the Martin , Campaneria , and George courts, it was important that Mincey could not speak; respondent could. Respondent, like the defendant in George , was coherent; the George court distinguished Mincey on the ground that Mincey was not. Indeed, respondent was not under the influence of any medication that could affect his judgment or render his responses to questions particularly unreliable. The defendant in Martin was under the influence of a pain-killing drug, and the defendant in Lewis had just emerged from anaesthesia. But the Ninth Circuit ruled that both of their statements were voluntary. And respondent was questioned in his native language, Spanish; the defendant in Campaneria , on 49 the other hand, had little command of the English language, yet his statements, too, were held not to be the product of coercion. In other words, even a "color-matching" of cases, and even one conducted under the Ninth Circuit's mistaken belief that admissibility precedents fully determine the constitutional issues in this case, would not have provided Chavez with clear guidance as to what constitutes permissible questioning in a hospital setting in exigent circumstances. It does not matter, for these purposes, whether a case could be made that respondent's statements were, in fact, involuntary. The relevant issue is whether petitioner, in his effort to obtain a dying declaration from a witness to a police shooting, violated a clearly established constitutional right. We submit that he did not. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted, A LAN E. W ISOTSKY L AWRENCE S. R OBBINS * J EFFREY H ELD R OY T. E NGLERT , J R . Law Offices of Alan E. Wisotsky K ATHRYN S. Z ECCA 300 Esplanade Drive Robbins, Russell, Englert, Suite 1500 Orseck & Untereiner LLP Oxnard, CA 93036 1801 K Street, N.W. (805) 278-0920 Suite 411 Washington, D.C. 20006 G ARY L. G ILLIG (202) 775-4500 City Attorney City of Oxnard 300 West Third Street * Counsel of Record Oxnard, CA 93030 (805) 385-7483 S EPTEMBER 2002

 

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