Art Tobias v. Michael Arteaga; Jeff Cortina ; J. Motto; Julian Pere

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ART TOBIAS ,
Plaintiff-Appellee,
v.
M ICHAEL ARTEAGA; J EFF CORTINA ;
J. M OTTO; JULIAN PERE ,
Defendants-Appellants.
No. 18-56360
D.C. No.
2:17-cv-01076-
DSF-AS
OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 15, 2019
Memorandum Disposition Filed February 25, 2020
Petition for Rehearing Granted and Submission Vacated
August 17, 2020
Resubmitted April 20, 2021
Pasadena, California
Filed April 27, 2021
Before: Kim McLane Wardlaw and Daniel P. Collins,
Circuit Judges, and Benjamin H. Settle,* District Judge.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Collins
* The Honorable Benjamin H. Settle, United States District Judge
for the Western District of Washington, sitting by designation.

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SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the
district court’s order denying, on summary judgment,
qualified immunity to Los Angeles Police Department
detectives in an action brought pursuant to 42 U.S.C. § 1983
alleging that defendants coerced plaintiff’s confession, when
he was thirteen years old, for a murder he did not commit.
The panel affirmed the district court’s denial of qualified
immunity on the Fifth Amendment claims that the officers
continued to question plaintiff after he invoked his Miranda
right to silence and that they engaged in unconstitutional
coercive questioning tactics. The panel held that it was
clearly established at the time of plaintiff’s interrogation that
the statement “Could I have an attorney? Because that’s not
me,” was an unambiguous request for an attorney. It was
also established at the time of plaintiff’s interrogation that a
coercive interrogation exists when the totality of the
circumstances shows that the officer’s tactics undermined
the suspect’s ability to exercise his free will, rendering his
statements involuntary. The panel concluded that under this
clearly established law, Detective Arteaga violated
plaintiff’s Fifth Amendment rights with his repeated
assertions that the court would consider plaintiff a “cold
blooded killer” and “might throw the book at [him]” if he did
not confess.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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TOBIAS V . A RTEAGA 3
The panel held that although Detectives Cortina and Pere
did not make threats of harsher punishment based on lack of
cooperation, to the extent they were aware of the violation
as it happened, they may have had a duty to intercede and
would not be entitled to qualified immunity. Because neither
side presented evidence as to Cortina and Pere’s
involvement in the interrogation, the panel remanded for the
district court to consider in the first instance whether there
were material facts in dispute as to Cortina and Pere’s
liability for Arteaga’s actions.
The panel held that the officers were entitled to qualified
immunity as to plaintiff’s Fifth and Fourteenth Amendment
fabrication-of-evidence claim, asserted under Devereaux v.
Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), to the extent
that the claim was based on the contention that plaintiff’s
confession was the asserted fabricated evidence.
The panel reversed the denial of qualified immunity on
plaintiff’s Fourteenth Amendment substantive due process
claim because it was not clearly established that the abusive
interrogation techniques used by the officers rose to the level
of abuse of power that shocked the conscience.
Concurring in part, concurring in the judgment in part
and dissenting in part, Judge Collins agreed with the
majority that the relevant officers involved in the
interrogation were not entitled to qualified immunity with
respect to plaintiff’s Fifth Amendment right to counsel
claim, and he therefore concurred to that extent in Part III(A)
of the opinion. He also agreed with the majority’s ultimate
conclusion to reverse the district court’s denial of qualified
immunity with respect to plaintiff’s Fourteenth Amendment
due process claim, but his reasoning differed somewhat from
the majority’s and so he concurred only in the judgment as
to Part III(C). Judge Collins agreed with the majority that

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4 TOBIAS V . A RTEAGA
the officers were entitled to summary judgment on plaintiff’s
fabrication-of-evidence claim under Devereaux v. Abbey,
263 F.3d 1070 (9th Cir. 2001) (en banc), to the extent that
that claim was based on the allegedly coerced confession.
Lastly, because in Judge Collins’s view then-existing
precedent did not clearly establish that the officers’
combination of tactics would be deemed coercive, he would
reverse the district court’s denial of qualified immunity with
respect to plaintiff’s coerced confession claim. He therefore
dissented from the majority’s opinion as to Part III(B).

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TOBIAS V . A RTEAGA 5
COUNSEL
Kevin E. Gilbert (argued), Orbach Huff Suarez &
Henderson, Pleasanton, California; Timothy T. Coates,
Greines Martin Stein & Richland LLP, Los Angeles,
California; for Defendants-Appellants.
Calvin House (argued), Gutierrez Preciado & House LLP,
Pasadena, California, for Defendants.
David B. Owens (argued), Anand Swaminathan, and Megan
Pierce, Loevy & Loevy, Chicago, Illinois, for Plaintiff-
Appellee.
Steven A. Drizin and Laura H. Nirider, Bluhm Legal Clinic,
Northwestern Pritzker School of Law, Chicago, Illinois;
Seth P. Waxman and Drew Van Denover, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Alan E.
Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP,
New York, New York; for Amicus Curiae Center on
Wrongful Convictions of Youth.
Clark M. Neily III and Jay R. Schweikert, Cato Institute,
Washington, D.C., for Amicus Curiae The Cato Institute.

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OPINION
WARDLAW, Circuit Judge:
Thirteen year old Art Tobias confessed to the murder of
Alex Castaneda—a murder he did not commit—after an
interrogation in which Los Angeles Police Department
(LAPD) Detectives Michael Arteaga, Julian Pere, and Jeff
Cortina ignored his request for an attorney, told him that he
would look like a “cold-blooded killer” if he did not confess,
and suggested that if he were to exercise his right to remain
silent he would receive harsher treatment by the court.
Tobias was convicted in juvenile court and sentenced to
25 years’ imprisonment. The California Court of Appeal
reversed the conviction, concluding that Tobias’s confession
should have been suppressed by the juvenile court because
the detectives failed to respect his unambiguous request for
an attorney. All parties now agree that Tobias did not
murder Alex Castaneda.
This appeal arises from Tobias’s subsequent 42 U.S.C.
§ 1983 action against the three LAPD Detectives who
conducted the interrogation in which Tobias confessed to
killing Castaneda. Tobias asserted violations of his Fifth and
Fourteenth Amendment rights. The LAPD detectives now
appeal the district court’s denial of their motion for summary
judgment based on qualified immunity for their interrogation
tactics. We affirm the denial of qualified immunity on the
Fifth Amendment claims that the officers continued to
question Tobias after he invoked his right to silence and that
they engaged in unconstitutional coercive questioning
tactics. We reverse the denial of qualified immunity on
Tobias’s Fourteenth Amendment substantive due process
claim because it was not clearly established that the abusive

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TOBIAS V . A RTEAGA 7
interrogation techniques used by the officers rose to the level
of “abuse of power that shocks the conscience.”1
I.
A.
Alex Castaneda was shot and killed in Los Angeles in
the early morning of August 18, 2012. A security camera on
a nearby building captured video of the shooter. LAPD
Detectives John Motto and Julian Pere were among the
officers who responded to the scene, where they learned
from witnesses that one of the assailants had said “Fuck 18th
Street” and “Salvatrucha,” suggesting that the shooting was
related to an ongoing feud between the Mara Salvatrucha
(MS-13) and 18th Street gangs.
The detectives identified 13-year-old Art Tobias as a
suspect after showing the video of the shooting to LAPD
gang enforcement officer Marshall Cooley. Cooley had
never met Tobias in person, but earlier that evening he had
seen photos of him when Tobias’s mother, Helen Contreras,
1 Detectives Arteaga, Cortina, and Pere and a fourth officer,
Detective Motto, also challenge the district court’s denial of qualified
immunity as to Tobias’s Fifth and Fourteenth Amendment fabrication-
of-evidence claim, asserted under Devereaux v. Abbey, 263 F.3d 1070
(9th Cir. 2001) (en banc), but only to the extent that the claim is based
on the contention that Tobias’s confession is the asserted fabricated
evidence. We have held that coerced confession claims are not
cognizable under a Devereaux fabrication-of-evidence theory. See Hall
v. City of Los Angeles, 697 F.3d 1059, 1069–70 (9th Cir. 2012).
“[O]fficers are entitled to qualified immunity under § 1983 unless . . .
they violated a federal statutory or constitutional right.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). As the officers cannot
have violated a constitutional right under a fabrication-of-the-evidence
theory, the officers are entitled to qualified immunity on this claim.

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came to the police station to report her son missing. Cooley
stated that the shooter in the video “uncannily resembled”
the photos of Tobias. This identification was seconded by
Officer Dora Born, another gang enforcement officer who
had never met Tobias but claimed to be familiar with him
from photos.
Detectives Motto and Michael Arteaga then went to
Berendo Middle School, where Tobias was a student. They
asked Daniel East, a Los Angeles Unified School District
(LAUSD) police officer assigned to the school, and Roger
Negroe, a dean of the school, if they were able to identify the
shooter in the video. At first, Officer East remarked that the
person in the video looked “large . . . to be a middle school
student” and said he had “a hard time IDing that person.”
After the detectives continued to press him, East eventually
stated he thought that the person on the video was Art
Tobias, but he noted Tobias was “so much smaller in real
life” and had a different hairstyle. Dean Negroe could not
identify the shooter from the video. However, after leaving
the meeting with the detectives, Dean Negroe ran into
Tobias, concluded he resembled the shooter in the video, and
informed the detectives of his revised opinion. The
detectives then arrested Tobias and brought him to the police
station.
B.
At the station, Tobias was brought into an interview
room with Detectives Pere and Jeff Cortina.2 After several
background questions, the detectives began asking Tobias
whether he was affiliated with a gang. Tobias admitted that
2 To the extent this opinion references information from sealed
documents, the information is unsealed for purposes of the disposition.

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TOBIAS V . A RTEAGA 9
his previous school “had [him] on gang file” for MS-13, but
explained that he was not actually in the gang. The
detectives then asked Tobias a series of questions to
determine whether he was sufficiently mature to
differentiate right from wrong, pursuant to In re Gladys R.,
464 P.2d 127 (Cal. 1970). It was not until after these
questions, roughly 20 minutes into the interrogation, that
Detective Cortina read Tobias his Miranda rights. Tobias
stated that he understood his rights.
The detectives then showed Tobias the security camera
video of the shooter. Tobias asked, “Who is that?” and
Detective Pere responded, “That, my friend, would be you.”
Tobias immediately and repeatedly denied that he was the
person in the video. When the officers told him that the
shooting had taken place near downtown Los Angeles
around midnight, Tobias explained that he had been miles
away in Arcadia with a friend that night and that his friend’s
mother had dropped him off at home before midnight. The
detectives persisted in accusing Tobias of the shooting,
falsely telling him, “somebody gave you up.”
Then the following exchange took place:
Det. Pere: Okay. Well, I—you know what?
We’re here to speak to you to get
your statement. Now, if your
statement is that that’s not you,
don’t worry. We’re going to write
it down just the way you said.
That’s not—
Tobias: Could I have an attorney?
Because that’s not me.

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Det. Pere: But—okay. No, don’t worry.
You’ll have the opportunity.
Detective Cortina quickly jumped in with another question
and the interrogation continued with no further
acknowledgement of Tobias’s request for an attorney, even
though the detectives had previously told him that he “ha[d]
the right to the presence of an attorney before and during any
questioning.” Tobias adamantly continued to deny he was
the shooter.
About 35 minutes into the interview, Detective Pere told
Tobias: “[R]ight now, man, you’re looking at murder. Looks
like you’re going to get booked today for murder.”
Detectives Pere and Cortina then left the room, assuring
Tobias that his mother would be in to talk to him shortly.3
But instead of Tobias’s mother, Detective Arteaga
entered the room two minutes later. Arteaga immediately
pulled his chair close to Tobias and began questioning him
in an aggressive tone. In an interrogation that lasted roughly
40 minutes, Arteaga lied to Tobias that somebody had given
him up as the murderer, cursed at Tobias, told Tobias that by
failing to confess he looked like a “cold-blooded killer,” and
brought up Tobias’s “mom” multiple times. Arteaga opened
the interview by telling the 13-year-old, “I just talked to your
mom right now, okay? She’s in there crying her eyes off.
She’s crying like a baby, bro,” and later informed him,
“Your mom’s gone. She—she left crying.” He also told
Tobias that his mother had identified him from the video,4
3 The record is unclear as to what extent Detectives Pere and Cortina
continued to observe the interrogation.
4 Tobias’s mother had in fact identified him as the person on the
video, but she later recanted the identification.

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TOBIAS V . A RTEAGA 11
calling it “fucked up” and “fucking pitiful” that Tobias was
going to “drag [his] mom into this” by forcing her to take the
stand to testify against him.
Over the course of this extended interrogation, Arteaga
repeatedly told Tobias that the court would “take into
consideration” his young age, but that he would lose that
goodwill and likely receive a harsher punishment if he
continued to “lie” about not being the person on the video.
As Arteaga framed it, “[y]ou’re 13 years of age. Do you
think they’re going to throw away the key on you? No.
They’re going to try to get you some help. . . . But we can’t
help you if you’re going to sit here and lie and—and just be
a cold-blooded killer.” As the interview went on, Arteaga
pressed this point harder, insisting, “You’re full of shit. And
when this case is presented to a district attorney’s office,
they’re going to see you’re a cold blooded killer,” and,
“Okay, but I’m telling you man, we have a lot more evidence
than you think, and right now when we take the case to court
they’re going to think you’re a big time gang killer who
didn’t want to tell the truth, who is down for the hood. It’s
going to look like you’re down—you’re so down for the
hood that you didn’t want to speak. So they might throw the
book at you.” After Arteaga repeated that Tobias’s lack of
confession made him look like a “cold blooded killer” nine
separate times, Tobias finally confessed.
After securing his confession, the detectives put Tobias
in a room alone with his mother. Tobias immediately told
her, “I’ll be straight with you. I wasn’t there. I was with
Joshua . . . . They have a guy that looks like on the—on the
camera. That’s not me.” When Tobias’s mother asked why
he had confessed if it was not him, Tobias explained, “they
forced me to. They said if I—if I keep lying to them in their
face that they’re going to tell the judge that I’m a cold

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blooded killer and that they’re going to give me—they’re
going to—they’re going to just throw the book at me and
give me a lot of time. So I don’t know what to do. I’m like
panicking.” Tobias’s mother went to Detective Arteaga and
told him that Tobias only confessed because “you guys told
him that if he didn’t confess . . . you guys were going to tell
the judge who knows what the hell, okay, that he’s a cold
blooded murderer.” She insisted that Tobias was “crying”
and “scared to shit.” Arteaga responded by telling her
“[w]e’re done with you.”
C.
The state tried Tobias in juvenile court for the Castaneda
murder. Before trial, Tobias moved to suppress his
confession, arguing that the detectives violated Miranda v.
Arizona, 384 U.S. 436 (1966), by ignoring his request for an
attorney and that their conduct during the interrogation was
unconstitutionally coercive. See In re Art T., 183 Cal. Rptr.
3d 784, 789–90 (Cal. Ct. App. 2015). The juvenile court
denied the motion and the case went to trial, where a jury
convicted Tobias of one count of first-degree murder and
two counts of attempted murder. See id. at 791–93. He was
sentenced to 25 years in prison. Id. at 793.
The California Court of Appeal reversed the trial court’s
ruling on the motion to suppress Tobias’s statement to the
police, concluding that the detectives failed to respect his
unambiguous request for an attorney. Id. at 799–801. On
remand, the charges were dismissed, and all parties—
including the arresting officers—now agree that Tobias was
not involved in the Castaneda murder.

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TOBIAS V . A RTEAGA 13
D.
In February 2017, Tobias brought this 42 U.S.C. § 1983
action in federal district court against many of the officers
involved in the investigation, including the appellants,
LAPD Detectives Arteaga, Cortina, and Pere (the LAPD
Detectives). The operative second amended complaint
asserted claims based on several theories of constitutional
violations, including violation of the Fifth Amendment right
against self-incrimination based on a coerced confession and
violation of Fourteenth Amendment substantive due process
based on the detectives’ conduct during the interrogation.
On March 21, 2018, the LAPD Detectives filed a motion
for summary judgment, arguing that there was no triable
issue of fact concerning their liability for the alleged
constitutional violations and that they were entitled to
qualified immunity. The district court denied the motions,
finding disputed issues of material fact on all claims, and
denying qualified immunity because the “rights in the
context of this case are so well established that law
enforcement officers must be deemed to have knowledge of
them. Defendants fail to establish their entitlement to
qualified immunity is ‘beyond controversy.’”
The LAPD Detectives sought certification for an
interlocutory appeal on the denial of qualified immunity on
two claims arising out of Tobias’s interrogation: (1) the
alleged violation of the Fifth Amendment right against self-
incrimination by the use in court of a confession that was
taken in violation of Tobias’s Miranda rights and otherwise
involuntary; and (2) the alleged violation of the Fourteenth
Amendment right to substantive due process because the
interrogation techniques “shocked the conscience.” The
district court denied certification of the motion. The LAPD
Detectives appealed anyway, asserting appellate jurisdiction

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over the order denying qualified immunity under Mitchell v.
Forsyth, 472 U.S. 511 (1985), and arguing that their conduct
was not clearly established as unlawful at the time of
Tobias’s interrogation and that they are entitled to qualified
immunity.5
II.
“Under 28 U.S.C. § 1291, we normally have no
jurisdiction to hear interlocutory appeals from the denial of
summary judgment.” Isayeva v. Sacramento Sheriff’s Dep’t,
872 F.3d 938, 944 (9th Cir. 2017). The collateral order
doctrine creates an exception to this rule: we are permitted
to review an interlocutory appeal to determine whether the
district court committed an error of law in a denial of
qualified immunity. Id. at 944–45; see also Mitchell,
472 U.S. at 527–30; Ames v. King Cnty., 846 F.3d 340, 347
(9th Cir. 2017). Thus, we “have jurisdiction to decide
whether, taking the facts in the light most favorable to the
non-moving party, the defendants are entitled to qualified
immunity.” Isayeva, 872 F.3d at 945. “We review the
district court’s conclusions regarding qualified immunity de
novo . . . consider[ing] all disputed facts in the light most
favorable to the nonmoving party.” Id. at 946 (citation
omitted).
5 This case was originally consolidated with an interlocutory appeal
brought by Daniel East, the LAUSD police officer who identified Tobias
on the video. Our disposition in Tobias v. East, No. 18-56245, was filed
and the mandate issued. Tobias v. East, 803 F. App’x 93 (9th Cir.),
opinion withdrawn in part on reh’g sub nom. Tobias v. Arteaga, 817 F.
App’x 457 (9th Cir. 2020). While we have withdrawn our original
disposition to the extent that it related to the LAPD officers, our decision
as to Officer East remains undisturbed.

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TOBIAS V . A RTEAGA 15
III.
“[O]fficers are entitled to qualified immunity under
§ 1983 unless (1) they violated a federal . . . constitutional
right, and (2) the unlawfulness of their conduct was clearly
established at the time.” Wesby, 138 S. Ct. at 589 (internal
quotation marks omitted). “A right is ‘clearly established’
when ‘the contours of the right were already delineated with
sufficient clarity to make a reasonable offic[ial] in the
defendant’s circumstances aware that what he was doing
violated the right.’” Costanich v. Dep’t of Soc. & Health
Servs., 627 F.3d 1101, 1114 (9th Cir. 2010) (quoting
Devereaux, 263 F.3d at 1074); see also Saucier v. Katz,
533 U.S. 194, 195 (2001) (explaining that the law must “put
the officer on notice that his conduct would be clearly
unlawful”). “[C]ourts must not ‘define clearly established
law at a high level of generality, since doing so avoids the
crucial question whether the offic[er] acted reasonably in the
particular circumstances that he or she faced.’” Wesby,
138 S. Ct. at 590 (quoting Plumhoff v. Rickard, 572 U.S.
765, 779 (2014)). Therefore, “[w]hile there does not have to
be ‘a case directly on point,’ existing precedent must place
the lawfulness of the [conduct] ‘beyond debate.’” Id.
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
A.
The district court correctly denied qualified immunity on
Tobias’s claim that the LAPD Detectives violated his Fifth
Amendment right to counsel by continuing his custodial
interrogation after he requested an attorney and then using
the resulting confession against him in his criminal case. See
Davis v. United States, 512 U.S. 452, 458–59 (1994);
Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). If a
suspect requests an attorney during a custodial interrogation,
“he is not subject to further questioning until a lawyer has

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16 TOBIAS V . A RTEAGA
been made available.” Davis, 512 U.S. at 458. This request
for counsel must be “unambiguous[].” Id. at 459. “Although
a suspect need not speak with the discrimination of an
Oxford don, he must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a
request for an attorney.” Id. (internal citation and quotation
marks omitted). Whether a suspect unambiguously
requested an attorney is an objective question. Id.
Tobias’s statement—“Could I have an attorney?
Because that’s not me”—was an unequivocal invocation of
his right to counsel under clearly established law. See
Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (finding
the request “[c]an I get an attorney right now, man?” was
unequivocal); United States v. de la Jara, 973 F.2d 746, 750,
752 (9th Cir. 1992) (finding the request “[c]an I call my
attorney?” was unequivocal). In Smith v. Endell, we
concluded that the request “Can I talk to a lawyer? At this
point, I think maybe you’re looking at me as a suspect, and
I should talk to a lawyer” was “not [an] equivocal or
ambiguous” request for an attorney. 860 F.2d 1528, 1529,
1531 (9th Cir. 1988). Tobias’s initial question—“Could I
have an attorney?”—differs from the initial question in
Smith in only two respects: Tobias used the word “could”
instead of “can,” and he asked to “have” an attorney rather
than to “talk” to one. This difference is immaterial. See
United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005)
(finding that “there is no real difference” between “Could I
get a lawyer?” and “Can I have a lawyer?”). In modern
usage, “Can I” and “Could I” are both well understood ways
of asking a direct question—the only distinction is that
“could” is considered a more polite form of request than
“can.” See Merriam-Webster’s Collegiate Dictionary 284
(11th ed. 2005) (defining “could” as “a polite form” of

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TOBIAS V . A RTEAGA 17
“can”); see also New Oxford American Dictionary 394
(Angus Stevenson & Christine A. Lindberg eds., 3d ed.
2010) (defining “could” as a word “used in making polite
requests”). Similarly, asking to “have” an attorney is at least
as direct as asking to “talk” to one. See Smith, 860 F.2d
at 1531. The second half of Tobias’s statement, “Because
that’s not me,” does nothing to undermine his initial
question, making his request, when taken as a whole, even
less ambiguous than the conditional request found
unambiguous in Smith. See id.
The LAPD detectives suggest that Tobias’s question was
not clearly established as unambiguous because we have
found statements such as “I think I would like to talk to a
lawyer,” “Maybe he ought to see an attorney,” and “[I] might
want to talk to a lawyer,” ambiguous. See Clark v. Murphy,
331 F.3d 1062, 1070–71 (9th Cir. 2003), overruled on other
grounds by Lockyer v. Andrade, 538 U.S. 63 (2003); United
States v. Doe, 60 F.3d 544, 546 (9th Cir. 1995) (per curiam);
United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.
1985), overruled on other grounds by California v. Hodari
D., 499 U.S. 621 (1991). But no one disputes that the police
may continue questioning “when the suspect” expresses only
that he “might want a lawyer.” Davis, 512 U.S. at 462. In
Davis, the Supreme Court found the use of “maybe”
rendered a request for an attorney equivocal. Id.; see also
Doe, 60 F.3d at 546 (relying on Davis to find a mother’s
statement that “‘maybe [her minor child] ought to see an
attorney’ . . . was not clear and unambiguous”). Similarly,
in Clark, a habeas appeal, we found that it was not “contrary
to or an unreasonable application of clearly established
federal law” for the Arizona Supreme Court to determine
that “I think I would like to talk to a lawyer” was ambiguous,
because “I think” is—like “maybe”—“equivocal to some
degree.” 331 F.3d at 1064, 1069–71. In Fouche, a pre-Davis

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case, our decision also hinged on the “equivocal” nature of a
request that used the term “might.” 776 F.2d at 1405.
Tobias, by contrast, “did not equivocate in his invocation by
using words such as ‘maybe’ or ‘might’ or ‘I think.’”
Anderson v. Terhune, 516 F.3d 781, 788 (9th Cir. 2008)
(citing Arnold v. Runnels, 421 F.3d 859, 865–66 (9th Cir.
2005)). He asked directly for an attorney, a request the
officers ignored.
Because it was clearly established at the time of
Tobias’s interrogation that the statement “Could I have an
attorney? Because that’s not me,” was an unambiguous
request for an attorney, 6 we affirm the district court’s denial
of qualified immunity on this claim.7
B.
It was established at the time of Tobias’s interrogation
that “[a] coercive interrogation exists when the totality of the
circumstances shows that the officer’s tactics undermined
the suspect’s ability to exercise his free will,” rendering his
statements involuntary. Cunningham v. City of Wenatchee,
345 F.3d 802, 810 (9th Cir. 2003). In determining whether
a statement was involuntary, “[c]ourts . . . often consider the
following factors: the youth of the accused, his intelligence,
6 The California Court of Appeal agreed that “‘Could I have an
attorney? Because that’s not me,’ was an unequivocal request for an
attorney” under the circumstances. Art T., 183 Cal. Rptr. 3d at 799.
7 The dissent suggests that because Officer Arteaga was not in the
room when Tobias invoked his right to counsel, the claim should not
proceed against him. Dissent at 29 n.1. The detectives did not raise this
argument clearly and distinctly, and so we do not address it. See, e.g.,
McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (“Because this
argument was not raised clearly and distinctly in the opening brief, it has
been waived.”).

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TOBIAS V . A RTEAGA 19
the lack of any advice to the accused of his constitutional
rights, the length of detention, the repeated and prolonged
nature of the questioning, and the use of physical punishment
such as the deprivation of food or sleep.” United States v.
Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). Any
suggestion by a law enforcement officer “that a suspect’s
exercise of the right to remain silent may result in harsher
treatment by a court or prosecutor” is unconstitutionally
coercive. United States v. Harrison, 34 F.3d 886, 891–92
(9th Cir. 1994).
1.
In Harrison, we concluded that a single question during
interrogation—asking if defendant Sonja Harrison “thought
it would be better if the judge were told that she had
cooperated or had not cooperated”?—was unconstitutionally
coercive, rendering Harrison’s subsequent confession
involuntary. Id. at 890–92. The core of the “improper” and
unduly coercive conduct in Harrison “was the suggestion
that [agents] might inform the court that [Harrison] had not
cooperated.” Id. at 891 (emphasis added). The coercive
impact of this threat was clear: “Harrison broke her silence
only after the agent asked whether she thought it preferable
if the judge were informed that she had cooperated or not
cooperated. The first thing she said was that she thought it
would be better if she talked to the agents and they informed
the judge that she had cooperated.” Id. at 892. Prior cases
similarly highlighted the coerciveness of threatening a
suspect for lack of cooperation. See United States v. Leon
Guerrero, 847 F.2d 1363, 1366 n.2 (9th Cir. 1988)
(“[T]hreatening to inform the prosecutor of a suspect’s
refusal to cooperate violates her fifth amendment right to
remain silent.”); United States v. Tingle, 658 F.2d 1332,
1336 n.5 (9th Cir. 1981) (“Although it is permissible for an

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20 TOBIAS V . A RTEAGA
interrogating officer to represent, under some circumstances,
that the fact that the defendant cooperates will be
communicated to the proper authorities, the same cannot be
said of a representation that a defendant’s failure to
cooperate will be communicated to a prosecutor.”).
Threatening that a suspect will “receive less favorable
treatment” for “exercis[ing] [his] rights” is so coercive that
it always “risks overcoming the will of the run-of-the-mill
suspect.” Harrison, 34 F.3d at 891–92 (quoting Collazo v.
Estelle, 940 F.2d 411, 426 (9th Cir. 1991) (Kozinski, J.,
concurring)). Accordingly, in Harrison we set down a
bright-line rule: “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
by a court or prosecutor.” Id. at 891–92 (citation omitted).8
Under this clearly established law, Detective Arteaga
violated Tobias’s Fifth Amendment rights with his repeated
assertions that the court would consider Tobias a “cold
blooded killer” and “might throw the book at [him]” if he did
not confess.
The LAPD detectives attempt to distinguish Harrison by
arguing that Tobias was told he would be treated more
8 The dissent argues that Harrison did not establish that such threats
always render a suspect’s subsequent statements involuntary. Dissent
at 42–44. But this is exactly what it did. Indeed, in explaining why the
police may never make such a statement, the Harrison court noted that
“[e]ven if Harrison were unusually resistant to psychological coercion,”
the technique used was unacceptable because it would be coercive for
the run-of-the-mill suspect. 34 F.3d 886 (emphasis added) (citation
omitted); see also Collazo, 940 F.2d at 426 (Kozinski, J., concurring)
(“[V]oluntariness is not merely a fact-bound question whether this
particular suspect’s confession is the product of coercion, but also a legal
question about whether the techniques the police used were tolerable.”).

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TOBIAS V . A RTEAGA 21
harshly for affirmatively lying about his involvement in the
murder rather than for failure to cooperate. But anyone in
Tobias’s shoes would have understood that Detective
Arteaga considered anything less than a confession to the
murder a “lie,” because all of Tobias’s attempts to deny the
accusation were met with statements such as “you’re full of
shit” and “the bottom line, whatever you said, you were
there.” In other words, in the context of this particular
interrogation, any threat that Tobias would be treated harshly
for “lying” was no different than a threat that he would be
treated harshly for refusing to cooperate by confessing—
exactly the type of threat we have previously held to be
categorically impermissible. Harrison, 34 F.3d at 891–92;
Leon Guerrero, 847 F.2d at 1366 n.2; Tingle, 658 F.2d
at 1336 n.5. The dissent similarly accuses us of ignoring the
distinction between an officer suggesting silence would
result in harsher treatment and that persisting in lying would
do so. Dissent at 39–42. Even assuming the dissent is
correct that the lynchpin of Harrison is literal silence rather
than failure to cooperate, however, Detective Arteaga also
directly commented on Tobias’s silence—and thus his right
to remain silent—when he told Tobias, “It’s going to look
like you’re down—you’re so down for the hood that you
didn’t want to speak. So they might throw the book at you.”
(emphasis added). This type of comment is clearly
unconstitutionally coercive as established by Harrison.
The LAPD detectives also argue that Harrison involved
a defendant “invoking the right to silence,” whereas Tobias
did not invoke that right. This argument lacks merit because
the defendant in Harrison did not “invoke” her right to
silence. See 34 F.3d at 890, 892. Rather, after Harrison was
advised of her Miranda rights and acknowledged that she
understood them, there was “a brief silence” where no one
said anything, but then the agent resumed questioning,

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22 TOBIAS V . A RTEAGA
including making the very statement that was
unconstitutionally coercive. Id. at 890, 892.
What the detectives and dissent implicitly appear to be
suggesting is that Tobias’s case is distinguishable from
Harrison because he affirmatively denied his guilt, rather
than initially remaining silent. To accept this argument, we
would have to conclude that it is less coercive to threaten a
defendant for failing to cooperate when he has denied an
allegation than when he has not yet been asked any questions
or has simply stood silent when faced with accusations. This
is not a tenable position, as Tobias’s case illustrates. Tobias
did not initially remain silent like the defendant in Harrison.
Instead, he tried—desperately—to explain to the detectives
that he had nothing to do with the murder. It was only after
the detectives showed little interest in his explanation and
repeatedly accused him of lying that Tobias concluded that
he had no choice but to falsely confess, out of fear of the
harsh treatment that Detective Arteaga threatened. If it is
unconstitutionally coercive to threaten a defendant who has
yet to say anything that harsh consequences could follow
from a lack of cooperation, see Harrison, 34 F.3d. at 892,
the same must clearly be true when a defendant tries to
cooperate—as Tobias did here, by telling the truth—but the
police continue to demand cooperation until the suspect
confesses.
2.
Unlike Arteaga, who made the threats against Tobias,
Detectives Cortina and Pere did not directly violate Harrison
during Tobias’s interrogation because they did not make
threats of harsher punishment based on lack of cooperation.
However, to the extent they were aware of the violation as it
happened, they may have had a duty to intercede to stop the

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TOBIAS V . A RTEAGA 23
constitutional violation and would not be entitled to qualified
immunity.
By 2013, we had clearly established that “police officers
have a duty to intercede when their fellow officers violate
the constitutional rights of a suspect or other citizen.”
Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)
(quoting United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th
Cir. 1994), aff’d in part, rev’d in part on other grounds,
518 U.S. 81 (1996)). If an officer fails to intercede, “the
constitutional right violated by the passive defendant is
analytically the same as the right violated by the person
who” performed the offending action. Koon, 34 F.3d at 1447
n.25. For example, “an officer who failed to intercede when
his colleagues were depriving a victim of his Fourth
Amendment right to be free from unreasonable force in the
course of an arrest would, like his colleagues, be responsible
for subjecting the victim to a deprivation of his Fourth
Amendment rights.” Id.; see also Robins v. Meecham,
60 F.3d 1436, 1442 (9th Cir. 1995) (holding that “a prison
official can violate a prisoner’s Eighth Amendment rights by
failing to intervene” when another official acts
unconstitutionally). “[H]owever, officers can be held liable
for failing to intercede only if they had an opportunity to
intercede.” Cunningham, 229 F.3d at 1289; see also
Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1029–30
(9th Cir. 2002) (no violation of duty to intercede where there
was no evidence that the defendant was aware of the
constitutional violation as it occurred), aff’d sub nom. Groh
v. Ramirez, 540 U.S. 551 (2004).
Tobias submitted evidence that there was a viewing
room “just down the hallway” from the interrogation room,
where officers could watch a video feed of the interrogation.
Detective Pere also re-entered the interrogation room after

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24 TOBIAS V . A RTEAGA
Tobias confessed, without being called in. It is plausible that
Cortina and Pere watched Arteaga’s questioning and were
aware of his violation of Tobias’s Fifth Amendment rights
as it occurred. Because neither side presented evidence as to
Cortina and Pere’s involvement in this interrogation, we
remand for the district court to consider in the first instance
whether there are material facts in dispute as to Cortina and
Pere’s liability for Arteaga’s actions.9
C.
A person subjected to coercive interrogation techniques
can bring a substantive due process claim under the
Fourteenth Amendment. See Stoot v. City of Everett,
582 F.3d 910, 928 (9th Cir. 2009); see also Chavez v.
Martinez, 538 U.S. 760, 774 (2003) (plurality opinion). The
substantive due process standard requires showing that an
officer engaged in an “abuse of power [that] ‘shocks the
conscience’ and ‘violates the decencies of civilized
conduct.’” Stoot, 582 F.3d at 928 (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The
Supreme Court has described “police torture or other abuse”
as the type of claim cognizable under the Fourteenth
Amendment. Chavez, 538 U.S. at 773–74. However,
“police conduct need not include physical violence to violate
substantive due process.” Crowe v. Cnty. of San Diego,
608 F.3d 406, 431 (9th Cir. 2010). “[P]sychological
coercion is sufficient.” Stoot, 582 F.3d at 929. “It has also
long been established that the constitutionality of
9 We agree with the dissent that Tobias’s interrogation was also
coercive under Rodriguez v. McDonald, 872 F.3d 908 (9th Cir. 2017).
However, as Rodriguez was not decided until after Tobias’s
interrogation, it is irrelevant to the key question here: whether the LAPD
Officers are entitled to qualified immunity because they did not violate
clearly established law at the time of the incident.

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TOBIAS V . A RTEAGA 25
interrogation techniques is judged by a higher standard when
police interrogate a minor.” Crowe, 608 F.3d at 431.
We have found psychologically coercive interrogation
techniques “shock[ed] the conscience,” Stoot, 582 F.3d at
928, in two cases with facts similar to this one. In Crowe,
police interrogated three 14- and 15-year-old boys, Michael,
Aaron, and Joshua, regarding the murder of Michael’s sister.
608 F.3d at 418–26. The officers questioned Michael on
four occasions, with at least one session lasting more than
six hours. Id. at 418–23. After Michael repeatedly denied
any involvement in the murder, officers falsely told him that
they had found blood in his room and had lifted his
fingerprints off the blood stains. Id. at 419. The officers
tried various means to get Michael to confess, including—in
what proved to be the “most ‘effective’” tactic—saying that
“he would get help rather than go to jail” if he confessed. Id.
at 422. Eventually, Michael falsely confessed.10 Id. In
concluding that the officers’ interrogation tactics “shock[ed]
the conscience,” we emphasized that the suspects were
minors, and that the officers “isolated and subjected [the
boys] to hours and hours of interrogation during which they
were cajoled, threatened, lied to, and relentlessly pressured
by teams of police officers.” Id. at 432. This amounted to
“[p]sychological torture.” Id.
In Cooper v. Dupnik, we found a cognizable substantive
due process violation where officers deliberately ignored an
adult suspect’s repeated invocations of his right to counsel,
isolated him at the police station, and subjected him to
“hours” of verbal interrogation where he was “hammered,
10 The officers interrogated Joshua and Aaron using similar tactics
for 13.5 and 9.5 hours in a single day, respectively, getting a false
confession out of Joshua but not Aaron. Crowe, 608 F.3d at 423–25.

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26 TOBIAS V . A RTEAGA
forced, pressured, emotionally worn down, stressed, and
infused with a sense of helplessness and fear.” 963 F.2d
1220, 1228–33, 1248–50 (9th Cir. 1992), overruled on other
grounds by Chavez, 538 U.S. at 773. The officers
intentionally tried to get a confession for the “purpose of
making it difficult, if not impossible,” for the defendant to
“take the stand in his own defense” after he was charged,
which we found to be a significant “aggravating
circumstance.” Id. at 1249.
The facts of Tobias’s case share much in common with
those in Cooper and Crowe. At 13, Tobias was even
younger than the teens interrogated in Crowe. His direct
request for an attorney was ignored. See Cooper, 963 F.2d
at 1229. He asked for his mother and was assured that she
would be right in, only to be confronted with another round
of increasingly aggressive interrogation instead, leaving him
“isolated from the outside world.” Id. at 1225. For over an
hour, Tobias was cursed at, called a liar, “emotionally worn
down,” “hammered” with questions, and “pressured” to
confess to a crime he did not commit. Id. at 1248; see also
Crowe, 608 F.3d at 432. The LAPD officers falsely insisted
that they had strong evidence of guilt and promised leniency
if Tobias confessed. See Crowe, 608 F.3d at 419–22. While
Tobias was not in shock over a family member’s death,
Arteaga repeatedly invoked Tobias’s family to emotionally
manipulate him, saying that he was disgusted that Tobias
was going to drag his mother into the proceedings by
refusing to provide a confession. The interrogation left
Tobias “infused with a sense of helplessness and fear,”
Cooper, 963 F.2d at 1248: when he spoke to his mother
directly after the interview, she described him as
“panicking,” “crying,” and “scared to shit.”

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TOBIAS V . A RTEAGA 27
This extended, overbearing interrogation of a minor,
who was isolated from family and his requested attorney,
comes close to the level of “psychological torture” that we
have held is not tolerated by the Fourteenth Amendment.
Crowe, 608 F.3d at 432. However, Tobias’s interrogation
falls short of the behavior in Cooper and Crowe in one main
respect: unlike those cases, Tobias’s mistreatment lasted
under two hours.11 We do not hold that “hours and hours,”
Crowe, 608 F.3d at 432, of coercive questioning are required
for an interrogation to “shock[] the conscience,” Stoot,
582 F.3d at 928. But because the prior cases in which we
found “psychological torture” did involve hours of
questioning, and because the officers’ behavior towards
Tobias was otherwise similar to—but not obviously worse
than—the behavior in those cases, it was not clearly
established that the offending tactics “shocked the
conscience” when used over a shorter period of time.
Because controlling precedent does not establish “beyond
debate” that the officers’ conduct violated the Fourteenth
Amendment, they are entitled to qualified immunity on this
claim. al-Kidd, 563 U.S. at 741.
IV.
We AFFIRM the district court’s denial of qualified
immunity on Tobias’s Miranda claim, and as to Detective
Arteaga on Tobias’s coercive interrogation claim. We
REVERSE the denial of qualified immunity for all three
officers for Tobias’s Fourteenth Amendment claim. We
11 There is also no evidence that the officers here intentionally
conspired to deprive Tobias of his right to take the stand, as the officers
did in Cooper. 963 F.2d at 1249. However, that factor was also not
present in Crowe, and is not a requirement for finding interrogation
tactics that violate the Fourteen Amendment. See 608 F.3d at 431–33.

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28 TOBIAS V . A RTEAGA
REMAND for further proceedings consistent with this
opinion.
COLLINS, Circuit Judge, concurring in part, concurring in
the judgment in part, and dissenting in part:
Although 13-year-old Art Tobias had participated in the
murder of Edwin Cruz on the evening of August 17, 2012—
for which he pleaded guilty, as a juvenile, to involuntary
manslaughter—he had no role at all in the murder of Alex
Castaneda a few hours later in a different part of Los
Angeles. But after several people tentatively identified
Tobias from surveillance video as one of Castaneda’s
assailants, detectives from the Los Angeles Police
Department (“LAPD”) conducted a 90-minute interrogation
of Tobias on August 20, 2012 with respect to the Castaneda
murder. The interrogation was unlawful in two respects.
First, the officers disregarded Tobias’s explicit request for
an attorney, in clear violation of Edwards v. Arizona,
451 U.S. 477 (1981). Second, the methods used during the
officers’ questioning were impermissibly coercive under the
standards set forth in Rodriguez v. McDonald, 872 F.3d 908
(9th Cir. 2017). As a result of this improper interrogation,
Tobias provided a detailed confession to the Castaneda
murder, using (as it turned out) many of the details of the
Cruz murder. Based on this confession, Tobias was tried as
a juvenile and found guilty of the Castaneda murder, but the
California Court of Appeal reversed due to the Edwards
violation. See In re Art T., 183 Cal. Rtpr. 3d 784 (Cal. Ct.
App. 2015).
Tobias subsequently filed this § 1983 action against
several of the officers involved in the investigation of the
Castaneda murder. The only claims at issue in this appeal

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TOBIAS V . A RTEAGA 29
are Tobias’s federal constitutional claims concerning the
conduct of the interrogation itself. The district court denied
qualified immunity to the four officers named in these
claims, and those officers have appealed that denial to this
court. I agree with the majority that the relevant officers
involved in the interrogation were not entitled to qualified
immunity with respect to Tobias’s Fifth Amendment right to
counsel claim, and I therefore concur to that extent in
Part III(A).1 I also agree with the majority’s ultimate
conclusion to reverse the district court’s denial of qualified
immunity with respect to Tobias’s Fourteenth Amendment
due process claim, but my reasoning differs somewhat from
the majority’s and so I concur only in the judgment as to Part
III(C). I also agree with the majority that the officers are
entitled to summary judgment on Tobias’s fabrication-of-
evidence claim under Devereaux v. Abbey, 263 F.3d 1070
(9th Cir. 2001) (en banc), to the extent that that claim is
based on the allegedly coerced confession. See Maj. Opin.
at 7 n.1.2 Lastly, because Rodriguez was decided nearly five
years after the interrogation in this case, and because no
1 Only Detectives Cortina and Pere were present when the Edwards
violation occurred. Detective Arteaga specifically testified that he was
unaware of Tobias’s invocation of his right to counsel, and Tobias
presented no contrary evidence in opposing summary judgment.
Accordingly, to the extent that this claim is cognizable in a § 1983 action,
I would allow this claim to go forward only against Detectives Cortina
and Pere. Contrary to the majority’s assertion, see Maj. Opin. at 18 n.7,
this issue was not forfeited. The detectives’ joint brief specifically
identifies which detectives were involved in which aspects of the
interrogation, and with respect to Tobias’s invocation of his right to
counsel, the brief states that “[n]otably, only Detectives Pere and Cortina
were present and heard Tobias’ statement.” I therefore do not join
footnote 7 of Part III(A).
2 This is the only claim before us in which Detective Motto is a
defendant.

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30 TOBIAS V . A RTEAGA
other then-existing precedent clearly established that the
officers’ combination of tactics would be deemed coercive,
I would reverse the district court’s denial of qualified
immunity with respect to Tobias’s coerced confession claim.
I therefore dissent from the majority’s opinion as to
Part III(B).
I
LAPD Detectives Julian Pere and John Motto learned
shortly after midnight on August 18, 2012 that a purported
gang-related shooting had just taken place, in which one
victim—Alex Castaneda—was killed and two victims were
critically injured. During the initial investigation that night,
the detectives learned that there were two assailants, one of
whom was captured on a nearby building’s security footage.
After reviewing this footage sometime before 2:00 AM, a
local gang enforcement officer, Marshall Cooley, concluded
that the shooter appeared to be Tobias. Cooley’s
identification was based on his having just reviewed photos
of Tobias hours earlier when, at around 9:00 PM on August
17, Tobias’s mother, Helen Contreras, had come to the
police station to report that Tobias was missing. Contreras
expressed concern that her son was involved with the MS-
13 gang, and she showed Cooley a Facebook post in which
Tobias had stated, “I’m going to go on the most important
mission of my life, don’t know if I’m going to come back
alive or dead or arrested.” After reviewing the surveillance
video, Cooley summoned another gang enforcement officer,
Dora Born, to the scene and, without telling her his views
about the suspect’s identity, asked her to review that video.
Born promptly identified the suspect as Tobias, whom she
knew to be an MS-13 gang member who went by the
moniker of “Casper.”

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TOBIAS V . A RTEAGA 31
On August 20, 2012, Detective Motto and Detective
Michael Arteaga went to Berendo Middle School, where
Tobias was a student. They first showed the security footage
to an on-site Los Angeles Unified School District officer,
Daniel East. East had some difficulty identifying the
suspect, but after reviewing the video several times, he stated
that he thought the shooter resembled Tobias, although he
noted that the suspect appeared larger in the video than
Tobias did in person. The detectives thereafter separately
showed the video to a dean of the middle school, Roger
Negroe, but he was unable to identify the suspect. However,
after walking with East and the detectives to the front of the
school, Negroe happened to see someone whom he thought
looked like the suspect in the video, and he notified the
detectives. That person was Tobias, and the detectives took
him into custody.
At the police station, Tobias was initially questioned by
Detectives Pere and Jeff Cortina. After starting with several
background questions, the detectives began asking Tobias
whether he was affiliated with a gang. Tobias admitted that
his previous school “had [him] on gang file” for MS-13 and
that his gang nickname was “Casper,” but he explained that
he was not actually in the gang and instead was “future.”
The detectives then asked Tobias a series of questions to
determine whether he was sufficiently mature to
differentiate right from wrong, pursuant to In re Gladys R.,
464 P.2d 127 (Cal. 1970). After these questions, roughly
20 minutes into the interrogation, Detective Cortina read
Tobias his Miranda rights. Tobias stated that he understood
his rights.
The detectives showed Tobias the security camera video
of the shooter. Tobias asked, “Who is that?” Detective Pere
responded, “That, my friend, would be you.” Tobias

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32 TOBIAS V . A RTEAGA
repeatedly denied that he was the person in the video. When
the officers told him that the shooting had taken place on
Alvarado Terrace near downtown Los Angeles, Tobias
explained that he had been miles away in Arcadia that night
with a friend and had been dropped off at his home before
midnight by his friend’s mother. But the detectives persisted
in accusing Tobias of the shooting, falsely telling him:
“somebody gave you up.” The following exchange then
ensued:
Det. Pere: Okay. Well, I—you know what?
We’re here to speak to you to get your
statement. Now, if your statement is that
that’s not you, don’t worry. We’re going to
write it down just the way you said. That’s
not—
Tobias: Could I have an attorney? Because
that’s not me.
Det. Pere: But—okay. No, don’t worry.
You’ll have the opportunity.
Detective Cortina quickly jumped in with another question,
and the interrogation continued with no further
acknowledgement of Tobias’s request for an attorney.
Tobias continued to deny that he was the shooter in the
video. About 35 minutes into the interview, Detective Pere
told Tobias: “[R]ight now, man, you’re looking at murder.
Looks like you’re going to get booked today for murder, so
I hope you don’t have that claustrophobia like we were
talking about.” Detectives Pere and Cortina then left the
room, telling Tobias his mother would be in to talk to him
shortly.

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TOBIAS V . A RTEAGA 33
Instead of Tobias’s mother, Detective Arteaga came in
two minutes later. Detective Arteaga had just finished
meeting with Tobias’s mother, Ms. Contreras, in another
room. Detective Arteaga had shown her a screenshot from
the security footage and asked, “that’s your son right there,
right?” She had replied, “Yes.” This identification was
made before Contreras was aware that the screenshot was
related to the investigation of a shooting. After she was
made aware of the context, she recanted her identification.
Once in the interrogation room, Detective Arteaga pulled
his chair close to Tobias and began questioning him in a
more aggressive tone than Detectives Cortina and Pere had
been using. Over the course of roughly half an hour,
Detective Arteaga repeatedly told Tobias that he would look
like a “cold-blooded killer” if he continued to lie, that it was
“f—ed up” that he was going to force his mother to have to
testify in court to identify him as the person on the video,
and (falsely) that the police already knew that Tobias had
committed the murder because somebody had given him up.
Detective Arteaga also told Tobias several times that he
might receive leniency from the judge if he admitted the
truth. After a long exchange in which Detective Arteaga
continued to emphasize that a judge would likely look
favorably upon Tobias admitting his guilt, Tobias confessed
to the shooting. Tobias said that he had gone to the location
in a car with a 19-year-old nicknamed “Diablo,” whose
girlfriend was driving, and that Diablo’s newborn baby
daughter was in the backseat. Tobias said that he and Diablo
got out of the car, that Diablo gave him a gun, and that
Diablo also had a similar gun. Tobias stated that, although
they both fired their guns, Tobias was the first one to shoot.
A juvenile delinquency petition was thereafter filed
against Tobias under California Welfare and Institutions

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34 TOBIAS V . A RTEAGA
Code § 602, alleging, inter alia, that he had murdered
Castaneda. In re Art T., 183 Cal. Rptr. 3d at 789. The trial
court denied Tobias’s motion to suppress his confession and
held a three-day hearing on the charges in the petition. Id.
at 790. As the trial court noted after the close of the
evidence, “no witness” at the hearing “identified Art from
the video,” and the court also stated that the “quality of the
video” was insufficient to determine whether the assailant
was Tobias. Id. at 793. Nonetheless, based largely on the
confession, the trial court found that the charges had been
proved beyond a reasonable doubt. Id. On appeal, however,
the California Court of Appeal reversed. Id. at 801. The
court held that Tobias “unequivocally requested an attorney
prior to his confession and that once he made this request, all
questioning should have stopped.” Id. at 793. Accordingly,
the court held that all of Tobias’s statements to the officers
“should have been suppressed.” Id. at 800. All parties now
agree that Tobias had no involvement in the Castaneda
murder.
Thereafter, Tobias was the subject of a separate juvenile
proceeding in connection with the Cruz murder, and he
pleaded guilty to a charge of involuntary manslaughter. In
describing the events leading up to Cruz’s murder, Tobias
stated that Diablo’s girlfriend had driven Diablo, their infant
daughter, Tobias, and one other person to the scene of that
shooting, but Tobias said that Diablo was the sole shooter.
II
In my view, the district court erred in denying qualified
immunity with respect to Tobias’s claims that the detectives
obtained and used an involuntary confession in violation of
his Fifth Amendment right against self-incrimination.

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TOBIAS V . A RTEAGA 35
A
Considered under current law, the overall circumstances
of Tobias’s interrogation would now be deemed to be
impermissibly coercive. Specifically, in our 2017 decision
in Rodriguez, we held that an interrogation presenting many
of the same key features as this one ultimately produced a
confession that “was not voluntary.” 872 F.3d at 923. We
noted that Rodriguez was only 14 years old at the time of his
interrogation and had a “borderline” IQ, id. at 912, 923; that
the officers had ignored his request for counsel, id. at 924;
that the officers falsely told Rodriguez that others had
implicated him, id. at 914, 924 n.3; and that, when Rodriguez
“answered in a way that conflicted with the officers’
narrative, they accused [him] of lying and told him that
‘nobody likes a liar, man, the judges [don’t] like liars, the
probation department doesn’t like liars, police don’t like the
liars,” id. at 912, 923–24 & n.3 (second alteration in
original). Given that Tobias’s interrogation, taken as a
whole, presents essentially the same key features that we
emphasized in Rodriguez, the obtaining of his confession
and its subsequent use at his juvenile proceedings violated
his Fifth Amendment right against compelled self-
incrimination.
But to defeat qualified immunity, it is not sufficient to
show that the plaintiff’s rights were violated. Rather, the
plaintiff must make the additional further showing “that the
official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.”
Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (simplified)
(emphasis added). “An officer cannot be said to have
violated a clearly established right unless the right’s contours
were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was

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36 TOBIAS V . A RTEAGA
violating it.” City of Escondido v. Emmons, 139 S. Ct. 500,
503 (2019) (emphasis added) (citations and internal
quotation marks omitted). Tobias failed to meet this
demanding standard. See Romero v. Kitsap Cnty., 931 F.2d
624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of
proof that the right allegedly violated was clearly established
at the time of the alleged misconduct.”).
Although Detectives Pere and Cortina committed a
clear-cut Miranda/Edwards violation, see Maj. Opin. at 15–
18, that fact alone is not sufficient to establish that the
resulting confession was involuntary. Bradford v. Davis,
923 F.3d 599, 616 (9th Cir. 2019) (“[S]tatements taken in
violation of Edwards . . . are not presumed to be involuntary
by virtue of the Edwards violation alone.”). Considered
against the then-controlling precedent that has found
coercion in custodial interrogation, the objective
circumstances of Tobias’s interrogation, viewed in the light
most favorable to him, were not such that any reasonable
police officer would have realized that the Fifth Amendment
right against compelled self-incrimination was being
violated.
Although Tobias was only 13 years old and his
unequivocal request for counsel was improperly brushed
aside, his early-evening interrogation lasted only
approximately 90 minutes, involved no physical threats or
abuse, and otherwise relied on interrogation techniques that
cannot be said, either singly or in the combination presented
here, to have violated then-clearly-established law (e.g.,
bluffing about the strength of the evidence the officers had,
arguing that the courts would go easier on the suspect if he
did not lie and instead told the truth about what he had done,
and shaming the suspect for the effect a prosecution would

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TOBIAS V . A RTEAGA 37
have on his family).3 Despite the violation of Tobias’s right
to counsel, in my view Tobias has failed to show that, even
considered as a whole, the detectives’ conduct in the
interrogation constituted impermissible coercion under
clearly established law as it stood in 2012.
Like the Fourth Amendment prohibition of excessive
force, the Fifth Amendment protection against the use of
involuntary statements at a criminal trial is one that involves
“an area of the law ‘in which the result depends very much
on the facts of each case.’” Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (per curiam) (citation omitted). Courts
employ “no ‘talismanic definition’ of voluntariness,” but
instead consider the “totality of the circumstances” of the
interrogation. United States v. Haswood, 350 F.3d 1024,
1027 (9th Cir. 2003) (citation omitted); see also id. (“Courts
. . . often consider the following factors: the youth of the
accused, his intelligence, the lack of any advice to the
accused of his constitutional rights, the length of detention,
the repeated and prolonged nature of the questioning, and the
use of physical punishment such as the deprivation of food
or sleep.”). Consequently, “‘[s]pecificity’” is important
here, because “‘it is sometimes difficult for an officer to
3 In seeking rehearing, Tobias and amicus curiae suggest that the
coercive nature of the officers’ tactics is confirmed by the fact that
Tobias “falsely confessed to the facts the detective fed him.” Pet. for
Reh’g En Banc at 6 (emphasis added); see also Br. for Amicus Curiae
The Center on Wrongful Convictions of Youth at 16–17. The record
does not support that assertion. In fact, as noted earlier, the key details
that Tobias supplied in his false confession to the Castaneda murder at
issue here (such as the identity of the shooter and the number and
descriptions of the other persons present with Tobias in the car) were not
supplied by the officers but instead correspond to the circumstances of
the separate Cruz murder in which Tobias was concededly involved only
a few hours earlier.

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determine how the relevant legal doctrine’”—here, the law
against coerced confession—“‘will apply to the factual
situation the officer confronts.’” Kisela, 138 S. Ct. at 1152
(citation omitted). As a result, a plaintiff seeking to defeat
qualified immunity must establish that “‘any reasonable
official in the defendant[s’] shoes would have understood’”
that the particular circumstances of the specific
interrogation were impermissibly coercive under the then-
existing case law. Id. at 1153 (emphasis added) (citation
omitted); see also Hunter v. Bryant, 502 U.S. 224, 229
(1991) (“The qualified immunity standard gives ample room
for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”
(simplified)).
Here, the particular circumstances of the interrogation do
not present the same sort of confluence of features that, as of
2012, we had previously held to be coercive. Cf., e.g.,
Taylor v. Maddox, 366 F.3d 992, 1012, 1015–16 (9th Cir.
2004) (confession was clearly involuntary where 16-year-
old suspect was arrested late at night, questioned until
3:00 AM, threatened with a jab to the face, and had his
repeated requests for counsel denied), overruled on other
grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th
Cir. 2014); Gladden v. Holland, 366 F.2d 580, 582 (9th Cir.
1966) (finding coercion where officers ignored a request for
counsel, conducted the interrogation “throughout the night,”
and called in alleged rape victims to view the suspect). On
the contrary, they appear to be less coercive than other pre-
2012 cases in which we found that coercion had not been
established. See, e.g., Cunningham v. City of Wenatchee,
345 F.3d 802, 810 (9th Cir. 2003) (finding no coercion
where interrogation went for eight hours without a break,
officers continued to question the suspect after claims of

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TOBIAS V . A RTEAGA 39
innocence, and officers played on the suspect’s fear of
prison).
B
The majority nonetheless concludes that Detective
Arteaga violated clearly established law, based on its
conclusion that we had held, in United States v. Harrison,
34 F.3d 886 (9th Cir. 1994), that “[a]ny suggestion by a law
enforcement officer ‘that a suspect’s exercise of the right to
remain silent may result in harsher treatment by a court or
prosecutor’ is unconstitutionally coercive.” See Maj. Opin.
at 19. That is wrong, because the rule that the majority
purports to extract from Harrison involves two significant
innovations that post-date the 2012 interrogation of Tobias.
First, the majority ignores the distinction between
suggesting that silence would result in harsher treatment and
suggesting that persisting in lying would do so. Harrison
held that “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
by a court or prosecutor.” 34 F.3d at 891–92 (second
emphasis added). In Harrison, the agents advised the
defendant of her Miranda rights and then, before she said
anything, “asked her whether she thought it would be better
if the judge were told that she had cooperated or had not
cooperated.” Id. at 890. We held that “the suggestion that
they might inform the court that she had not cooperated” was
“improper conduct.” Id. at 891. We reasoned that “‘a
defendant may not be made to suffer for his [or her]
silence,’” id. (emphasis added) (quoting United States v.
Tingle, 658 F.2d 1332, 1336 n.5 (9th Cir. 1981)), and that
therefore “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

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40 TOBIAS V . A RTEAGA
by a court or prosecutor,” id. at 891–92 (second emphasis
added); see also Collazo v. Estelle, 940 F.2d 411, 414, 417
(9th Cir. 1991) (en banc) (where suspect, at the outset of the
police interrogation, refused to talk and asked for a lawyer,
the officers’ threat that “it might be worse” for him if he did
not talk was an impermissible “attempt in the police station
to impose a penalty on Collazo’s choice to remain silent”).
Given that Tobias never chose to be silent, Detective Arteaga
here never “commented on Tobias’s silence,” see Maj. Opin.
at 21–22, and Detective Arteaga did not threaten Tobias that,
had he stayed silent, that would have led to harsher
treatment. Instead, Detective Arteaga told Tobias that he
thought the affirmative story Tobias was telling was a lie and
that Tobias’s persistence in lying would make him look like
a “cold-blooded” killer, resulting in harsher treatment from
the prosecutor and the courts.4 Given this crucial distinction
4 For example, Detective Arteaga told Tobias that, when the case
was presented to the district attorney’s office, they were “going to see
that you’re a gangster who lies.” In another lengthy speech to Tobias,
Detective Arteaga stated: “[W]hen we take the case to court they’re
going to think you’re a big time gang killer who didn’t want to tell the
truth who is down for the hood. It’s going to look like you’re down—
you’re so down for the hood that you didn’t want to speak so they might
throw the book at you. But when you’re honest and you tell the truth it’s
going to help you out in the long run. I’m telling you that right now,
they’re going to have some compassion for you. But they do not like
gang murders where people lie, deny it.” Detective Arteaga later
similarly told Tobias that there are cases “where guys have told the truth,
they’ve been honest, and they get a much reduced sentence,” and that,
“I’m telling you this, [the judge is] going to look at you a lot more—with
a lot more compassion if you told the truth [about] what happened.” The
majority misleadingly cites, out of context, Detective Arteaga’s use of
the above-quoted phrase “you didn’t want to speak” as if it were a
comment on an invocation of the right to remain silent. See Maj. Opin.
at 21. But as the more complete quotation provided above makes clear,
the entire speech can only be understood as referring to Detective
Arteaga’s belief that Tobias was continuing to lie. Indeed, the majority’s

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TOBIAS V . A RTEAGA 41
between Harrison and this case, it cannot be said that every
reasonable officer would have understood in 2012 that such
comments would have violated the principles established in
Harrison.
To be sure, the distinction just noted was effectively
eliminated by our decision in Rodriguez, in which we
applied the reasoning of Collazo in a factual context that
was, in all relevant respects, materially similar to the one
presented here. Although we did not cite Harrison in
Rodriguez, we cited Collazo and made clear that the same
principles discussed in that case (and in Harrison) apply in
the context of an officer’s threat that, if the suspect persisted
in lying, that might result in harsher treatment from the
prosecutor or the court. 872 F.3d at 924. The problem is
that Rodriguez was decided five years after the interrogation
in this case, and the majority points to no then-existing
precedent that extended the principles of Collazo and
Harrison to the persistence-in-lying context.5 But as the
notion that this was somehow a comment on Tobias’s supposed “silence”
is refuted by the fact that Tobias never invoked his right to silence (as
opposed to his right to counsel) and by the fact that he had been speaking
with the detectives for nearly an hour by that point.
5 The two cases cited by the majority do not support its conclusion.
Tingle did not involve a suspect who had remained silent, and we went
on to hold that the “record simply does not support Tingle’s claim that
[the officer] made any improper promise or agreed to seek her early
release” if she cooperated. 658 F.2d at 1335 (emphasis added). We
instead concluded that Tingle’s confession was involuntary due to the
officer’s effort “to cause Tingle to fear that, if she failed to cooperate,
she would not see her young child for a long time.” Id. at 1336 (emphasis
added). In a footnote, we noted in dicta that we “disapprove[d]” making
“statement[s] that failure to cooperate will be reported.” Id. at 1336 n.5
(emphasis added). That statement, by its terms, says nothing about
whether officers may admonish suspects that persistence in lying would

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42 TOBIAS V . A RTEAGA
Supreme Court has admonished, the qualified-immunity
analysis is limited to “‘existing precedent’” because future
decisions cannot give “‘fair notice’” to government officials.
Kisela, 138 S. Ct. at 1153–54 (citations omitted); see also id.
at 1154 (admonishing this court for relying on a case “that
postdated the shooting at issue” and “was therefore ‘of no
use in the clearly established inquiry’” (citation omitted)).
For the same reasons, the majority’s argument today for
extending the principles of Harrison to the different context
presented here, see Maj. Opin. at 20–22, is of no value in
determining what was clearly established law in 2012.
Because it would not have been clear to every reasonable
officer in 2012 that a suspect could not be warned that
continuing to lie during an interrogation could lead to
harsher consequences, Detective Arteaga did not violate
clearly established law and is entitled to qualified
immunity.6
Second, in addition to extending the Harrison rule to a
context in which it had not been applied pre-2012, the
majority radically transforms that rule in a further respect
that is unsupported by precedent. According to the majority,
not be viewed favorably. And in United States v. Guerrero, 847 F.2d
1363 (9th Cir. 1988), we found the confession there to have been
voluntarily given, and we distinguished Tingle on its facts. Id. at 1366–
67 & n.2.
6 Indeed, it is ironic that, even after Rodriguez, this court itself
distinguished Harrison on precisely the ground that, unlike in Harrison,
the officer there “was merely warning [the suspect], who was already
talking with him, that if he was not honest in his statements to police, it
could make the situation he was in worse.” United States v. Cragg,
807 F. App’x 640, 643 (9th Cir. 2020) (emphasis added). If we are still
making this distinction three years after Rodriguez, we cannot expect
officers to have foreseen in 2012 that Rodriguez would effectively
eliminate that distinction in 2017.

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TOBIAS V . A RTEAGA 43
a violation of its broader Harrison rule is now per se
“unconstitutionally coercive.” See Maj. Opin. at19. This
principle was not clearly established law in 2012; indeed, it
was not the law at all until the majority announced this novel
rule in its decision today. Harrison itself nowhere adopts the
majority’s per se rule requiring an automatic finding of
involuntariness. On the contrary, it reiterated that the
voluntariness inquiry turns on “the totality of the
circumstances” and requires a court to consider whether
“‘the government obtained the statement by physical or
psychological coercion or by improper inducement so that
the suspect’s will was overborne.’” 34 F.3d at 890 (citation
omitted). The majority points to Harrison’s statement that
“‘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 by a court or
prosecutor.’” See Maj. Opin. at 20 (quoting 34 F.3d at 891–
92). But the majority ignores the very next sentence of
Harrison, which confirms that the court there was not
creating a per se rule about voluntariness: “‘The
admissibility of a confession turns as much on whether the
techniques for extracting the statements, as applied to this
suspect, are compatible with a system that presumes
innocence and assures that a conviction will not be secured
by inquisitorial means as on whether the defendant’s will
was in fact overborne.’” See Harrison, 34 F.3d at 892
(quoting Miller v. Fenton, 474 U.S. 104, 116 (1985))
(alteration omitted). Harrison thus may have established a
per se prophylactic rule about how officers should behave in
an interrogation,7 but Harrison made clear that voluntariness
7 The additional language that the majority quotes from Harrison
only serves to confirm this point. As the majority notes, see Maj. Opin.
at 20 n.8, Harrison suggested that the technique used there was
unacceptable because it “risks overcoming the will of the run-of-the-mill

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still had to be considered in light of all of the circumstances,
and we proceeded to do just that in evaluating the
voluntariness of Harrison’s confession.8 Id. at 892
(considering, in addition to the improper statement to
Harrison, the fact that “fifteen armed federal agents had just
searched the house, arrested her, and taken her companion
away to jail”). The majority’s clear misreading of Harrison
as establishing an automatic rule of involuntariness was not
the law in this circuit until the majority announced it today,
and it certainly was not clearly established law in 2012.
III
I agree with the majority’s decision to reverse the district
court’s denial of qualified immunity with respect to Tobias’s
substantive due process claim under the Fourteenth
Amendment, but I reach that conclusion for somewhat
different reasons than the majority.
Although this claim (unlike the Fifth Amendment claim)
does not require a showing that the confession was used
suspect.’” 34 F.3d at 892 (emphasis added) (citation omitted). That is
the language of a prophylactic rule and not of conclusively-presumed
involuntariness.
8 Although the operative complaint’s Fifth Amendment claim
contains separate paragraphs alleging both that the confession was
involuntary and that the confession was unlawfully obtained in violation
of Edwards’ prophylactic per se rule, it does not contain a comparable
specific allegation that the confession was obtained in violation of a per
se prophylactic rule of the sort suggested by Harrison. Rather, the
complaint only mentions the threats of harsher treatment as a factor
weighing in favor of involuntariness. Accordingly, we do not have a
separate Harrison-based prophylactic-rule claim before us, and I
therefore have no occasion to address whether such a claim would be
cognizable under § 1983.

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TOBIAS V . A RTEAGA 45
against Tobias, “[t]he standard . . . is quite demanding,”
requiring something akin to “‘police torture or other abuse’”
or comparable conduct that “‘shocks the conscience.’” Stoot
v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009)
(citations omitted). In contending that the detectives
violated clearly established law in this regard, Tobias relies
on Crowe v. County of San Diego, 608 F.3d 406 (9th Cir.
2010), and Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992),
but the facts of both cases are materially different from those
presented here.
In Crowe, police interrogated three 14- and 15-year-old
boys, Michael, Aaron, and Joshua, regarding the murder of
Michael’s sister, Stephanie. 608 F.3d at 417. During the
third of Michael’s four interrogations, at least one of which
lasted six hours, Michael consented to a “truth verification
exam,” after which an officer told him that some of his
answers indicated “some deception.” Id. at 419. The officer
then asked, “Is there something, though, that maybe you’re
blocking out . . . in your subconscious mind that we need to
be aware of?” Id. After Michael denied this claim, another
officer “told Michael they found blood in his room, lifted
fingerprints off the blood stains, and that the police now
knew who killed” his sister, and asked Michael “what [he]
did with the knife.” Id. The officer urged Michael to do “the
right thing by Stephanie’s name and . . . by your parents,”
before he suggested the idea that Michael “killed Stephanie
but did not remember it,” given that the officers were
“[a]bsolutely” “sure about the evidence.” Id. at 419–20.
Other tactics included telling Michael that there were “two
Michaels” and that “the good part of Michael didn’t do it,”
and telling Michael that if he confessed, as opposed to
“ma[king] the system prove” the murder, “he would get help
rather than go to jail.” Id. at 421–22. Michael then made up
a story of how he committed the murder, explicitly and

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repeatedly stating—as he was telling it—that the story was a
“complete lie” that he was providing to avoid jail based on
the officers’ advice. Id. at 422.
The officers also interrogated Joshua and Aaron using
similar tactics, getting a false confession out of Joshua but
not Aaron. 608 F.3d at 423–25. Joshua was interrogated for
12 hours on one occasion and 13½ hours in a second session
weeks later, and Aaron was interrogated for 9½ hours on one
occasion. Id. We noted that, at around “3:00 a.m.,” one of
the officers used “the computer stress voice analyzer” on
Joshua, “describing the device to Joshua in the same way as
he had to Michael and Aaron.” Id. at 424. Moreover, the
officer continued Joshua’s interrogation “for several hours
and he repeatedly denied Joshua’s requests for sleep.” Id. at
424–25.
We concluded in Crowe that these interrogation tactics
“shock[ed] the conscience,” emphasizing that the children
were minors, that one of the suspects was deeply distraught
over his sister’s murder, that the interrogations involved
significant psychological manipulation, and that the
interrogations lasted for “hours and hours.” Id. at 532.
Given that the circumstances of the interrogations in
Crowe were so much worse than those in this case, Crowe
cannot be said to have made clear to every reasonable officer
that the methods used in interrogating Tobias violated his
substantive due process rights. As the majority notes, the
interrogations of all of the suspects in Crowe lasted for many
hours, whereas Tobias’s interrogation (including the initial
preliminary questions) lasted only about 90 minutes. But the
differences go well beyond that. The questioning of each of
the boys involved the psychologically manipulative use of a
“computer stress voice analyzer,” and Joshua’s interrogation
involved deliberate sleep deprivation. The detectives’

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TOBIAS V . A RTEAGA 47
behavior in this case simply does not compare to the
“[p]sychological torture” that the officers in Crowe inflicted
upon the suspects in that case. 608 F.3d at 432.
Cooper is even further afield. There, police officers—
who were “quite candid” about the intent of their scheme—
meticulously “developed a strategy for interrogating” an
adult defendant, which involved “cut[ting] [him] off from
the rest of the world,” “creating [a] sense of hopelessness,”
making him “emotionally worn down,” and intentionally
“not honor[ing] an assertion of counsel or silence.” 963 F.2d
at 1223–25 (emphasis omitted). The officers’ plan was to
“prevent the defendant from testifying at his own trial” by
obtaining material for impeachment during the interrogation.
Id. The officers “knew their plan patently was
unconstitutional.” Id. at 1225. Executing their plan, the
officers deliberately ignored the defendant’s repeated
invocations of his right to counsel. Id. at 1129–31. Although
Detectives Pere and Cortina also ignored Tobias’s single
invocation of the right to counsel, there is no evidence that
they went into the interrogation with a plan to do so, not to
mention a “purpose of making it difficult, if not impossible,
for [Tobias] to take the stand in his own defense” through
methods that are “deliberately unlawful and flout the
Constitution.” Id. at 1249–50.
Because controlling precedent does not establish
“beyond debate” that the detectives’ conduct here shocks the
conscience, Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011),
the detectives are entitled to qualified immunity on this
claim. I therefore concur in the majority’s judgment
reversing the denial of summary judgment as to this claim.
* * *

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For the foregoing reasons, I concur in part, concur in the
judgment in part, and respectfully dissent in part.

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