CAROLYN CLANTON, Plaintiff-Appellee, v. JODY COOPER, Defendant-Appellant.
No. 96-7082
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
NOV 17 1997
PUBLISH; PATRICK FISHER Clerk
Charles K. Babb, Assistant Attorney General of Oklahoma, Oklahoma City, OK, argued the cause for the appellant. W.A. Drew Edmondson, Attorney General of Oklahoma, and Benjamin Gore Gaines, Assistant Attorney General of Oklahoma, assisted on the brief.
Gene V. Primomo, Wilcoxen, Wilcoxen, & Primomo, Muskogee, OK, argued the cause for the appellee. John H. Helm, Houston, TX, assisted on the brief.
Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Plaintiff-Appellee Carolyn Clanton (Clanton) was arrested for arson, pursuant to a warrant issued by Defendant-Appellant Jody Cooper (Cooper), an
Clanton then sued Cooper under
BACKGROUND
Several important facts in the present case are disputed. The following statement of facts is set forth in the light most favorable to Plaintiff-Appellee Carolyn Clanton, the nonmovant for summary judgment. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). All reasonable inferences from the factual record have been drawn in favor of Clanton.
Around July 25, 1993, Carolyn Clanton, a Texas resident, arrived in the City of Checotah, in McIntosh County, Oklahoma, to attend her recently deceased
That evening, several arguments ensued regarding the right to possession of the trailer house. Odie Sheffield‘s relatives said that if he couldn‘t live in the trailer they would burn it. By 11:30 p.m., the trailer had been emptied of possessions. At that time, Clanton and her nephew Michael Eaves (Michael) returned to the trailer, where they found that water was running from the washer hookup, the lights were on, and the doors were wide open. Clanton then borrowed a wrench from Nadine Lawson to stop the running water, secured the premises, and left with Michael at about midnight. Clanton and Michael spent the next one-and-one-half hours together at the Green Country Diner.
At about 12:20 a.m., while Clanton and Michael were in the Diner, the trailer house was set on fire. Defendant-Appellant Jody Cooper, an Oklahoma State Fire Marshal Agent, investigated the fire the following morning. Cooper interviewed a number of witnesses, including Clanton, but did not solve the crime. While being interviewed by Agent Cooper, Clanton expressed
In late August, 1993, the State Fire Marshal‘s office received a phone call from Clanton‘s nephew Bobby Eaves (Michael‘s brother). Bobby Eaves (Bobby) claimed to have information about the July 26 arson, and agreed to meet with Agent Cooper on August 24, 1993. At this meeting, Bobby Eaves signed a written statement alleging that his brother Michael had told him that Michael and Clanton had committed the arson.
Two days later, Cooper visited Michael Eaves. At first, Michael denied any involvement in the arson. Cooper then falsely told Michael that physical evidence linked Michael to the crime, and that if Michael did not confess he would go to jail for twenty-five years. Cooper suggested that Michael had burned the house at Clanton‘s request, according to Clanton‘s plan, and with Clanton‘s assistance. He further suggested that Clanton‘s motive was to collect the fire insurance money. Finally, he told Michael that if Michael confessed along these lines, Michael would get off lightly. Subsequently, Michael signed a
Around September 13, 1993, upon her return from Europe, Clanton was arrested by U.S. customs officers in Houston, Texas. She was then turned over to the Houston police. When the Houston police contacted the McIntosh County, Oklahoma Sheriff‘s Department to find out what to do with Clanton, they received the following message through the NCIC computer system.
PLEASE PLACE A HOLD ON SUBJECT CAROLYN BURNS CLAYTON [sic] FOR THIS DEPT SHE IS A WHITE FEMALE DOB/121051 HGT/504 WGT 130 EYES/BRO HAI/BRO SKN/LGT SHE IS CHARGED WITH ARSON OF RESIDENCE ENDANGERED LIFE AND POSSIBLY ENVOLVED [sic] IN A HOMICIDE STILL UNDER INVESTIGATION COURT WILL BE MCINTOSH CO COURT AT EUFAULA OK WT NO IS AWF/93-6 DOW/083193 AND NO BOND IF PERSON WONT WAIVE EXTRADITION WE WILL EXTRADITE
Clanton v. Cooper, No. CIV-95-426-B, slip op. at 8-9 (E.D. Okla. July 25, 1996) (Order) (Burrage, J.). Consequently, Clanton was incarcerated for one to three
On September 23, 1993, Michael Eaves recanted the oral statement which had been the sole evidence implicating Clanton in the arson. Michael alleged that Cooper had coerced him into making the earlier statement by threatening to send him to jail for twenty-five years unless he agreed to repeat back, in substance, a confession supplied by Cooper.2
On September 27, 1993, an Oklahoma trial court quashed the August 31, 1993 warrant for Clanton‘s arrest. The court cited two grounds for quashing the arrest: (1) no charges had ever been filed against Clanton by the D.A. (and no grand jury had indicted her); and (2) probable cause for Clanton‘s arrest could not be established solely by a recanted oral statement of an alleged co-conspirator.
On August 29, 1995, Clanton sued the City of Checotah, its police department and police chief, the Oklahoma State Fire Marshal‘s Office, its chief, and Agent Cooper under
The district court exercised jurisdiction over Clanton‘s federal civil rights claims pursuant to
DISCUSSION
I. Jurisdiction
Orders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law. Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (citing Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996), and Johnson v. Jones, 515 U.S. 304, 312-14 (1995)). More specifically:
a district court‘s order denying a defendant‘s motion for summary judgment [is] an immediately appealable collateral order (i.e., a final decision) under Cohen [v. Beneficial Indus. Loan Corp, 337 U.S. 541 (1949)], where (1) the defendant [is] a public official asserting a defense of qualified immunity and (2) the issue appealed concern[s], not which facts the parties might be able to prove, but, rather, whether or not certain given facts show[] a violation of clearly established law.
Johnson v. Jones, 515 U.S. at 311 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), and Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To the extent that the district court‘s denial of the defendant‘s motion for summary judgment is predicated on evidence sufficiency, i.e. which facts a party may, or may not, be able to prove at trial, the denial is not reviewable as a collateral order. Id. at 313. Rather, immunity appeals . . . [are] limited to
This court has recently summarized the practical effect of the Supreme Court‘s Behrens and Johnson decisions as follows:
A determination that the law allegedly violated by the defendant was clearly established at the time of the challenged actions is an abstract issue of law that is immediately appealable. A determination that under either party‘s version of the facts the defendant violated clearly established law is also immediately appealable. See Behrens, at -, 116 S. Ct. at 842; Johnson at 312-14, 115 S. Ct. at 2156-57; Mitchell, 472 U.S. at 528, 105 S. Ct. at 2816-17. However, government officials cannot appeal pretrial denial of qualified immunity to the extent the district court‘s order decides nothing more than whether the evidence could support a finding that particular conduct occurred. See Behrens, at -, 116 S. Ct. at 842. An order denying qualified immunity on summary judgment is not appealable if it merely determines the facts asserted by the plaintiff are sufficiently supported by evidence in the record to survive summary judgment. See Johnson, at 312-14 115 S. Ct. at 2156-57.
Foote v. Spiegel, 118 F.3d at 1422; see also Wilson v. Meeks, 98 F.3d 1247, 1251 (10th Cir. 1996) (surveying Tenth Circuit cases applying the rules announced in Behrens and Johnson).
With these principles in mind, we proceed to review whether, under Clanton‘s version of the facts, Cooper violated clearly established law. In making
II.
State government officials performing discretionary functions enjoy qualified immunity from liability under
In analyzing qualified immunity claims, we first ask if a plaintiff has asserted the violation of a constitutional right at all, and then assess whether that right was clearly established at the time of a defendant‘s actions. Siegert v. Gilley, 500 U.S. 226, 232 (1991). Once a public official raises a qualified immunity defense, the plaintiff bears the burden of (1) coming
forward with sufficient facts to show that the defendant‘s conduct violated the law; and (2) demonstrating that the relevant law was clearly established when the alleged violation occurred. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988).
Gehl Group, 63 F.3d at 1533; accord Lawmaster v. Ward, No. 96-5028, 1997 WL 577708, at *4 (10th Cir. Sept. 5, 1997).
If the defendant‘s conduct as alleged by the plaintiff does not violate the law, we need not reach the issue of whether the law was clearly established. Gehl Group, 63 F.3d at 1533 (citing Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993)). If, however, we are persuaded that the defendant‘s conduct violated the law, the plaintiff must [also] show the right the defendant‘s conduct violated was clearly established such that a reasonable person in the defendant‘s position would have known the conduct violated the right. Lawmaster, No. 96-5028, 1997 WL 577708, at *4 (citing Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)). While the plaintiff need not show that the specific action at issue has previously been held unlawful, the alleged unlawfulness must be apparent in light of preexisting law. Medina v. City and County of Denver, 960 F.2d 1493, 1497 (10th Cir. 1992) (quoting Hilliard, 930 F.2d at 1518). The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. (internal quote marks omitted).
A. The Arrest Warrant
In her complaint, Clanton alleged that Agent Jody Cooper, with information he knew was false and unreliable, swore in an affidavit to untrue facts, thereby securing an arrest warrant for Carolyn Clanton. (Complaint at ¶ 15, Aplt.‘s App. at 4). The complaint further elaborates that: (1) [t]he arrest warrant for Carolyn Clanton was issued based solely on the affidavit of Agent Jody Cooper which cited the uncorroborated statements of an alleged co-conspirator; (2) [n]o underlying criminal charges were pending against Carolyn Clanton at the time Agent Jody Cooper secured the warrant for Ms. Clanton‘s arrest; and (3) [t]he arrest warrant for Carolyn Clanton was issued without the presentment, indictment, or information in violation of . . . the 5th Amendment of the United States Constitution. (Id. at 4-5). The district court found that these
It has long been clearly established that the Fourth Amendment‘s warrant requirement is violated when a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit if the false statement is necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); see also Kaul v. Stephan, 83 F.3d 1208, 1213 n.4 (10th Cir. 1996) (A state officer is not automatically shielded from Section 1983 liability merely because a judicial officer approves a warrant.) (citing Malley v. Briggs, 475 U.S. 335, 344-46 (1986)). Under Franks, it is the deliberate falsity or reckless disregard of the affiant, not of any nongovernmental informant that is unconstitutional. Franks, 438 U.S. at 171. Thus, if Cooper relied in good faith on statements of Michael Eaves‘s that turned out to be false, there would be no Franks violation.
Here, however, Clanton has alleged that Cooper knowingly and intentionally swore to the veracity of Michael Eaves‘s confession, while knowing that confession to be false: a classic Franks violation. The district court found that there are triable issues of material fact as to whether Cooper in fact did so. Clanton‘s claim is clearly legally sufficient. Cooper argues that Clanton merely alleged in a conclusory fashion that Cooper knew Michael Eaves’ statements
Cooper is, however, entitled to qualified immunity on Clanton‘s three subsidiary claims pertaining to the arrest warrant. Contrary to Clanton‘s claim, the finding of probable cause necessary to support an arrest warrant may be predicated entirely on the confession of a self-confessed co-conspirator, without running afoul of the Constitution. See
In a related vein, Clanton claims that her Fifth Amendment rights were violated because a warrant was issued for her arrest despite the fact that she was never indicted. This claim largely overlaps with her Fourth Amendment claim, and must be rejected for the same reasons. To the extent that Clanton‘s Fifth Amendment claim does not merely restate her Fourth Amendment claim, we note that the Fifth Amendment right to grand jury indictment has never been incorporated via the Fourteenth Amendment as a substantive restriction on state criminal procedure, Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972), and thus may not be the basis of a claim under
In short, Clanton has stated a legally cognizable Section 1983 claim to the extent that she has alleged that Cooper knowingly and intentionally swore to untrue facts in an affidavit to obtain Clanton‘s arrest warrant. Because the
B. The NCIC Transmission
Clanton also claims that Cooper violated Clanton‘s constitutional rights after Clanton was arrested, by knowingly and intentionally transmitting false information to the Houston Police and thereby causing Clanton‘s post-arrest/ pre-bail detention to be extended. Specifically, Clanton claims that she could have been released shortly after being arrested if Cooper‘s teletype had not falsely informed the Houston police that Clanton had ENDANGERED LIFE AND POSSIBLY ENVOLVED [sic] IN A HOMICIDE, and that Clanton was not eligible to be released on bond when, in fact, the warrant issued by the McIntosh County District Court had set Clanton‘s bond at $5,000.
This claim was not specifically stated in Clanton‘s complaint. For this reason, the district court expressed reluctan[ce] to definitively address the validity of this claim. Clanton v. Cooper, slip op. at 9. Nonetheless, the court held that Cooper did not enjoy qualified immunity from this claim, finding that, at the very least, a genuine issue of material fact exists with regard to the
Cooper responds that the transmission of his false statements over the NCIC computer system caused no injury to Clanton, because it is clear in this case that Plaintiff was not arrested in Houston because of the allegedly false statements, but instead was arrested because of the Arrest Warrant for Plaintiff in connection with the crime of arson. In support of this defense, Cooper notes that [t]he teletype itself states that Plaintiff was wanted for arson and does not state that she is charged with anything else, and gives the warrant number and gives the court the warrant was filed in. In circumstances such as the present ones, where no separate or additional detention or imprisonment is caused by a false NCIC statement, Cooper argues, such a statement cannot be said to have caused a deprivation of liberty or an unreasonable seizure. Finally, Cooper argues that his false statements caused Clanton no injury because Texas courts are not bound by Oklahoma bond settings, but rather are free to set bond as they see fit.
The Fourteenth Amendment protects persons from being deprived of liberty without due process of law. Cooper‘s teletype allegedly caused Clanton to be needlessly incarcerated for one to three days, without due process of law. The teletype was literally dispatched under color of state law. It is thus hard to imagine a more paradigmatic application of Section 1983 liability.
For this reason, we do not think that Clanton‘s failure to cite cases clearly establishing the unconstitutionality of knowingly transmitting false information over the NCIC computer system is fatal to her claim. The purpose of the requirement that the law be clearly established before its violation may waive qualified immunity is to insure that officials may reasonably anticipate when their actions might give rise to liability for damages. Lawmaster, No. 96-5028, 1997
Ordinarily, to carry this burden, a plaintiff must establish that there is a Supreme Court or Tenth Circuit opinion on point, or that the clearly established weight of authority from other courts has held the law to be as the plaintiff maintains. Id. (citing Garramone v. Romo, 94 F.3d 1446, 1451 (10th Cir. 1996)). This test is not rigid, however. Rather:
where the reasonableness inquiry necessarily turns on the cases’ particular facts such that the reasonableness determination must be made on an ad hoc basis, we must allow some degree of generality in the contours of the constitutional right at issue. We would be placing an impracticable burden on plaintiffs if we required them to cite a factually identical case before determining they showed the law was clearly established and cleared the qualified immunity hurdle. Thus, . . . we adopt the approach of requiring some but not precise factual correspondence in demanding that officials apply general, well-developed legal principles. . . . While qualified immunity was meant to protect officials performing discretionary duties, it [] should not present an insurmountable obstacle to plaintiffs seeking to vindicate their constitutional rights.
Id. at 9 (internal citations omitted).
In the present case, we think that the knowing transmission of false statements over the NCIC computer system, in order to cause unjustifiedly extended incarceration of a suspect, is sufficiently similar to the swearing
C. Coerced Confession
Clanton alleges that Cooper initially violated Clanton‘s constitutional rights by coercing a false confession from Michael Eaves which implicated Clanton. Specifically, Clanton claims that Michael Eaves‘s confession was coerced because: (1) Cooper falsely told Michael Eaves that physical evidence connected Michael to the crime; and (2) Cooper told Michael that he would get a twenty-five-year sentence if he didn‘t confess, but would get off lightly if he confessed to a pattern of events suggested by Cooper. If these facts, taken together, do not amount to coercion under clearly established law, then Cooper is entitled to qualified immunity. Before discussing the coercion issue, however, we must determine whether Clanton may contest the voluntariness of Eaves‘s confession. We conclude that she may.
There are two types of constitutional protections that invoke exclusionary rules. In the first category, the exclusion of unconstitutionally obtained evidence is designed to protect the enjoyment of constitutional rights themselves. Thus, for example, the Fourth Amendment protects the right to privacy by prohibiting
In the second category, a constitutional violation may assist officers in gathering evidence, but the violation has both offended the Constitution and rendered the evidence unreliable. A coerced confession fits into this category. As stated by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 385-86 (1964):
It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will, Blackburn v. Alabama, 361 U.S. 199, 206-207, and because of the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Spano v. New York, 360 U.S. 315, 320-321.
Having established that Clanton has standing to contest the voluntariness of Eaves‘s confession, we consider whether Cooper is entitled to qualified immunity for his conduct in eliciting the confession. The Fifth Amendment provides that
The central consideration in determining whether a confession has been coerced always involves this question: did the governmental conduct complained of bring about a confession not freely self-determined? Incriminating statements obtained by government acts, threats, or promises that permit the defendant‘s will to be overborne are coerced confessions running afoul of the Fifth Amendment.
Griffin, 983 F.2d at 1543 (internal citation, punctuation marks, and footnote omitted).
It is well-settled that a confession is not considered coerced merely because the police misrepresented to a suspect the strength of the evidence against him. As Professor LaFave explains:
Although dictum in Miranda v. Arizona[, 384 U.S. 436 (1966),] was highly critical of [police trickery and deception], as a general matter it may be said that courts have not deemed such conduct sufficient by itself to make a confession involuntary. One type of trickery involves misrepresenting to the suspect the strength of the existing
case against him. . . . [L]ower courts have held confessions admissible when they were prompted by such misrepresentations as that the murder victim was still alive, that nonexistent witnesses have been found, that the murder weapon had been uncovered, that defendant‘s prints were found at the crime scene, and that an accomplice had confessed and implicated the defendant.
1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2, at 446-47 (1984) (footnotes omitted) (citing Frazier v. Cupp, 394 U.S. 731 (1969), and lower court cases). Thus, Michael Eaves’ confession was not coerced just because Cooper falsely told him that physical evidence connected him to the crime.
However, Cooper also told Michael that he would get a twenty-five-year sentence if he didn‘t confess, but would get off lightly if he confessed to a pattern of events suggested by Cooper. As Professor LaFave goes on to say following the above-quoted passage, [c]ourts are much less likely to tolerate misrepresentations of law. Id.
Under Supreme Court and Tenth Circuit precedent, a promise of leniency is relevant to determining whether a confession was involuntary and, depending on the totality of the circumstances, may render a confession coerced. See Fulminante, 499 U.S. at 286-87 (confession coerced where informant threatened defendant with violence and promised defendant protection from inmate violence); Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (confession declared not involuntary, notwithstanding a plea bargain, because it was not the
All of these opinions were released before the events in this case. Thus, it was clearly established at the time of the interrogation that a promise of leniency may render a confession involuntary if it was sufficiently compelling and linked to the confession so that it could be said that the defendant‘s will was overcome by the offer. Further, considering the totality of the circumstances adds the fact that Cooper lied about the evidence against Eaves. Though the lies themselves are not unconstitutional, a reasonable official should have been aware that adding the lies to the apparent promises would make it more likely that the confession
The district court concluded that the totality of the circumstances surrounding Eaves’ interrogation gives rise to an atmosphere which to this Court‘s conclusion that any statements arising from these circumstances cannot be said to be freely self-determined or of free will. Under Johnson this is sufficient to preclude our review on interlocutory appeal, because coercion is a factual issue that must be evaluated on the entire record.
CONCLUSION
The district court‘s decision to deny Cooper qualified immunity is AFFIRMED.