“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Daniel Collins tried to grant immunity to police officers who used coercive tactics to get a 13 year-old to confess to a crime that he did not commit. The majority rejected Collins’ view and ruled that a lawsuit against the officers could proceed in its April 2021 ruling in Tobias v Arteaga.
As discussed in a previous blog entry on this case, thirteen year-old Art Tobias was treated by LA police as the prime suspect in a shooting, based on the viewing by two people of a video of the shooting. This was despite the fact that the video footage showed that the perpetrator was a heavyset adult, while the teenaged Tobias was five feet tall and weighed only 110 pounds. Police detectives picked up Tobias for questioning, and he initially denied involvement and asked for a lawyer. That request was denied, and police detectives proceeded to use dishonest and coercive techniques to get him to confess. These included falsely claiming that his mother had identified him as the shooter, falsely stating that people he knew had “ratted him out,” promising leniency if he would confess, cursing at him, and stating that a court would consider Tobias a “cold-blooded killer” and “might throw the book” at him if he did not confess.
Based on the confession, Tobias was sentenced to 25 years to life, and served three years in prison, before his conviction was reversed and he was freed when it became clear that he was innocent because someone else had actually committed the crime. Tobias brought a civil suit for damages against several of the detectives, who claimed that they should receive qualified immunity from the attempt to hold them accountable for their misconduct. The district court refused but on the initial appeal, a 2-1 panel on which Trump judge Collins was the deciding vote ruled that although the detectives could be sued for ignoring Tobias’ request for a lawyer, they were immune from the claim that they had improperly coerced the false confession from Tobias.
In response to a petition from Tobias and other advocates, however, the panel decided to vacate its prior decision and rehear the case. After receiving additional briefs and hearing more oral argument, the panel decided 2-1 that the detectives should not get qualified immunity from liability for their coercive interrogation of Tobias. Judge Kim Wardlaw, who dissented in the earlier decision, wrote the ruling, and was joined by Judge Benjamin Settle, who was nominated by President George W Bush and had previously voted in favor of immunity. Trump judge Collins dissented and argued for immunity.
Judge Wardlaw explained that years prior to Tobias’ interrogation, the Ninth Circuit had “clearly established” that an interrogation is coercive when the “totality of the circumstances” shows that police tactics “undermined the suspect’s ability to exercise his free will.” Based on the facts alleged by Tobias, that was clearly the case here. Wardlaw continued that prior case law considered particularly important the “youth of the accused” and the police suggestion that Tobias’ continued refusal to confess could “result in harsher treatment” by a court or prosecutor. In fact, Wardlaw went on, the Ninth Circuit had “set down a bright-line rule” in the Harrison case some eight years before the police interrogation of Tobias: “there are no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent may result in harsher treatment.” Under this “clearly established law,” the majority concluded, police “violated Tobias’ Fifth Amendment rights” against coerced confession through this conduct. The detectives who observed such statements and did nothing, Wardlaw also pointed out, may well have violated their clearly established “duty to intercede” when other police are violating constitutional rights, and thus they should also not receive qualified immunity.
Trump judge Collins dissented. He claimed that the impropriety of the detectives’ conduct had not been “clearly established” by the time of Tobias’ interrogation. He argued that the Harrison decision did not establish that the type of threats in this case “always” make a confession involuntary, to which the majority responded that “this is exactly” what the ruling stated. Collins also maintained that the cases were different because the person in Harrison remained silent while Tobias affirmatively denied his guilt. “This is not a tenable position,” the majority explained. As Wardlaw wrote, if it is “unconstitutionally coercive to threaten a defendant who has yet to say anything that harsh consequences could follow” from a failure to confess, then “the same must clearly be true” when a suspect tries to cooperate by explaining that he did not commit the crime, but the police “continued to demand cooperation until the suspect confesses.”
Despite Trump judge Collins’ dissent, Art Tobias will now have the opportunity to try to hold police accountable for their wrongful conduct in improperly coercing him to falsely confess to a crime he did not commit. This case, particularly the significance of a change in a single vote of an open-minded judge in determining the outcome, shows the importance to our fight for our courts of confirming Biden-nominated judges to every possible seat that is available to be filled, including on the Ninth Circuit.