United States v. 2009-09-18 | 07-35425 | STOOT V. CITY OF EVERETT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PAUL A. STOOT, SR.; TAMMIE L.
STOOT, husband and wife, and as
parents and guardians of Paul A.
Stoot II; and PAUL A. STOOT II, a No. 07-35425
minor child, D.C. No. Plaintiffs-Appellants, CV-05-01983-TSZ v. AMENDED
CITY OF EVERETT, a municipal OPINION
corporation; OFFICER JON A.
JENSEN; JANE DOE JENSEN, and the
marital community thereof,
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
October 23, 2008—Seattle, Washington
Filed August 13, 2009
Amended September 18, 2009
Before: Barry G. Silverman and Marsha S. Berzon,
Circuit Judges, and James C. Mahan,* District Judge.
Opinion by Judge Berzon
*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
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COUNSEL
Michael J. Andrews, Cogdill Nichols Rein Wartelle Andrews,
Everett, Washington, for the plaintiffs-appellants.
Robert L. Christie, Christie Law Group, PLLC, Seattle,
Washington, for the defendants-appellees.
OPINION
BERZON, Circuit Judge:
Based solely on statements by a four-year-old that she had
been sexually abused when she was three, Everett Police
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Detective Jon Jensen seized and interrogated plaintiff Paul
Stoot II for almost two hours in the principal’s office at Paul’s
school. Near the end of the interrogation, Paul stated that he
had molested the victim three times. The confession was then
used to file criminal charges against Paul in juvenile court.
A state court subsequently dismissed the charges, holding
that the confession had been coerced and that the four-year-
old victim was incompetent to testify at trial. After the
charges against Paul were dismissed, the Stoot family filed
this action under 42 U.S.C. § 1983, asserting violation of
Paul’s rights under the Fourth, Fifth, and Fourteenth Amend-
ments. Specifically, the Stoots alleged that (1) Jensen seized
Paul without probable cause in violation of the Fourth
Amendment, as the victim’s statements, standing alone, were
unreliable; (2) Jensen coerced a confession that was later used
against Paul in a criminal proceeding, in violation of the Fifth
Amendment; and (3) Jensen’s interrogation techniques were
so coercive as to violate substantive due process under the
Fourteenth Amendment. The Stoots also asserted a claim of
municipal liability against the City of Everett based on its pol-
icies and practices regarding interrogation of juvenile suspects
and child victims, as well as a state law claim of outrage.
We conclude that the Stoots have alleged viable claims
under both the Fourth and Fifth Amendments, as Jensen
seized Paul without probable cause and then allegedly coerced
incriminating statements that were later used against Paul in
a criminal proceeding. We nonetheless affirm the district
court’s grant of summary judgment to defendants on the
Fourth Amendment claim on the basis of qualified immunity,
as the pertinent law was not clearly established at the time of
the violations. The Fifth Amendment claim, however, may
proceed in district court, as the aspects of the pertinent law
not clearly established at the time of the confession did not
affect Jensen’s role in bringing about the violation. Finally,
we affirm the district court’s grant of summary judgment to
defendants on the Stoots’ remaining claims, as Jensen’s con-
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duct did not rise to the level of a substantive due process vio-
lation or a state law claim for outrage and the Stoots have
failed to provide evidence supporting municipal liability.
FACTS & PROCEDURAL HISTORY
On December 23, 2003, Nicki Johnson contacted the City
of Everett Police Department to report that her four-year-old
daughter, A.B., had been sexually abused by an acquaintance,
Paul Stoot II (“Paul”). Officer Margaret Anders responded to
the call and briefly interviewed Nicki. Nicki stated that four
days earlier, she had walked into A.B.’s bedroom and found
her with “her pants down . . . touching herself.” Nicki asked
A.B. why she was doing that, and A.B. eventually responded
“because Paul touched me there.” Nicki then asked her to
explain exactly what happened, and A.B. replied that “[Paul]
pulled down his pants and pulled his little thing out and pulled
her pants down and put it on her.” According to Nicki, A.B.
indicated that this had happened five times between June and
September 2002, while A.B. was living with the Stoot family.
Nicki told Officer Anders that “Paul” referred to Paul Stoot
II, the 14-year-old son of Paul Stoot, a local pastor (“Pastor
Paul”). Nicki described the neighborhood in which the Stoot
family resided, and Officer Anders verified this information
by finding an address for Paul Stoot in a local directory. She
then instructed Nicki not to question her daughter any further
about the incident, wrote her report, and passed it along to
City detectives. Anders noted that “[t]hroughout my interac-
tion with her, [Nicki] appeared to be a credible person who
was not exaggerating or fabricating allegations. I had no rea-
son to doubt her or the version of events that she conveyed to
me.” Anders’s report concluded her involvement in the case.
Anders’s report was assigned to Detective Jonathan Jensen
the next day. At the time of the investigation, Jensen had been
a police officer for twenty-four years, including five years in
the Special Assault Unit, which focuses on cases of child sex-
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ual abuse. Jensen began his investigation by contacting Nicki,
who described the same conversation with her daughter previ-
ously relayed to Anders. Based on his “background and train-
ing,” Jensen “believed that [Nicki] had done [a] reliable job
of obtaining truthful and accurate information from her
daughter without leading her or planting a suggested story.”
Nicki agreed to allow Jensen to interview her daughter.
Jensen interviewed A.B. outside the presence of her mother
or anyone else. He did not videotape or audio-record the inter-
view. He did take notes, but threw them out shortly after pre-
paring his police report. The account of the interview in his
report thus constitutes the only contemporaneous description
in the record of Jensen’s interview with A.B.
According to the report, Jensen began the interview by
“telling [A.B.] some things about [himself] in a rapport build-
ing exercise.” He then asked her, “Has anyone ever touched
you in a way you don’t like?” A.B. answered, “No.” Jensen
then began working with sketches of a little boy and a little
girl, asking A.B. to identify various body parts. After pointing
to the little boy’s penis, Jensen asked if she knew what that
was called, to which A.B. responded that she didn’t remem-
ber, but that girls weren’t supposed to touch it. Jensen then
asked, “Have you ever seen another boy’s penis before?” A.B.
responded, “A boy named Paul. He has one of these. He put
it on my privates, on the bed he did, at [the Stoot’s house].”
A.B. said this happened on five days.
Jensen proceeded to ask a number of questions about Paul.
A.B. stated that “[Paul] told me to taste [his penis]” one time
in the bathroom, but that she “didn’t touch it.” She said that
they went into the bedroom, and “he put his poo poo on me.”
Jensen asked A.B. if Paul touched her anywhere else, to
which A.B. responded that “he sits on me and bounces when
he puts his poo poo on me.” She said that she “wouldn’t like
it. Sometimes, I like it but I don’t like it. Sometimes, it gets
stuck.”
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A.B.’s answers were at times confused or contradictory.
Jensen asked her, for example, “Did Paul’s penis touch your
face?” to which A.B. answered, “No.” Jensen then asked her,
“Did you touch his poo poo?” A.B. denied that she did, but
then began talking about another boy, “Preston.” She
answered, “No. I told you I didn’t. He usually puts his poo
poo inside here (she pointed to her vaginal area). Preston puts
his poo poo in my pee pee.” Jensen asked her who Preston
was, and A.B. responded that he was a six-year-old friend
who lives far away. Jensen then “told her [he] wanted to talk
more about Paul and not talk about Preston anymore.”
Jensen also asked A.B. several times whether Paul licked
her. The first time, A.B. responded, “No. He just put his poo
poo in my pee pee.” A moment later, however, Jensen asked
her if there was anything she forgot to tell him, to which she
answered, “He actually has licked me.” A.B. also stated, “Ac-
tually, I did lick his poo poo,” although she had previously
denied doing so several times.
Following the interview, Jensen talked to Nicki, who told
him that A.B. had stayed with Paul Stoot and his family from
June 2002 to September 2002 while Nicki dealt with some
financial problems.1 Jensen then called the local school dis-
trict to find out which school Paul attended. Because he now
considered Paul “a suspect in a rape of child case,” Jensen
also notified Child Protective Services of his investigation.
On January 15, 2003, Jensen called Bree Nelson, Principal
of Voyager Middle School, to arrange an on-campus inter-
view with Paul. Before interviewing Paul, Jensen spoke with
1Jensen did not take any steps to verify that A.B. had, in fact, lived with
the Stoots during this time period. If Jensen had contacted Pastor Paul to
confirm Nicki’s account of their relationship, he likely would have learned
that the Stoots discontinued A.B.’s enrollment in the family’s daycare ser-
vice two months before Nicki made her allegations, because Nicki owed
them roughly $3,000.
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two Snohomish County prosecutors “to make sure [he] was
current on the legal standards for interviewing juvenile sus-
pects that were at least 12 years old.” According to Jensen,
From these discussions, [he] picked up two points of
information; (1) if the juvenile requests his parents
during the interview, treat the request the same as
one for legal counsel, and (2) give the juvenile
Miranda warnings and have him sign the waiver
form (if applicable) even for non-custodial inter-
views since the interview was to take place at a
school where the child was not free to leave.
Acting on this advice, Jensen told Nelson that she did not
need to contact Paul’s parents before the interview. Rather,
Jensen indicated that he would contact them afterwards.
When Jensen arrived at the school, Vice Principal Bailey
pulled Paul out of class and took him to the principal’s office,
where Jensen was waiting for him. At this point, the parties’
version of events begins to differ.2 According to Jensen,
I introduced myself and said I wanted to talk to
[Paul]. He said okay. I sat down with him at a small
table, and produced a rights form. I explained I was
required to read him his rights before I could talk to
him. He shook his head up and down. I read his
rights . . ., and he signed the form to indicate that he
understood, and signed that he was willing to talk to
me.
After Paul waived his rights, Jensen states that he questioned
Paul about A.B.’s allegations for close to two hours and that
— after denying any wrongdoing at least 13 times — Paul
2As with his interview of A.B., Jensen did not record or preserve notes
from his interview with Paul.
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eventually confessed. In Jensen’s words, he successfully
employed “the interviewing technique of blaming the victim”:
I kept talking to him about A.B. starting the contacts,
and about her being sexually aggressive. I kept tell-
ing him that it would have been normal for him to
respond to her touching him. . . . I kept talking to
him, and I finally said, ‘You touched her vagina with
your fingers, didn’t you.’ He said, ‘Yes.’ I asked,
‘How many times?’ He said, ‘Three times on her
vagina.’
According to Jensen, Paul also voluntarily agreed to pro-
vide a written statement. In that statement, Paul admitted that
“[o]ne time I did touch her on her vagina for like 5 seconds,”
although he maintained that “[n]either of us pulled down our
pants and rubbed on each other,” that “she never put her
mouth on my penis and I never put my mouth on her vagina,”
and that “[s]he never seen my penis, only when she walked
in the bathroom and grabbed it but I didn’t let her.” In a note
at the bottom of the statement, added at Jensen’s instruction,3
Paul indicated that he “rubbed on vagina 2 times with clothes
on then one time for a couple of second with clothes off.”
The Stoots provide a very different account of Paul’s inter-
view with Jensen. According to the Stoots, after Paul’s
repeated denials, Jensen “adjusted his tactics, and coerced
admissions from Paul.” They assert that this coercion “in-
cluded the making of impermissible threats of heightened
punishment if Paul denied guilt, and impermissible promises
3In his declaration, Jensen claims that “[Paul] wrote out the text of the
statement without any direction from me.” Jensen’s police report contra-
dicts his declaration. In the report, Jensen states, “I reviewed [Paul’s writ-
ten statement]. I found where he said he touched A.B. one time on her
vagina. It had been my recollection he said he touched her three times on
her bare skin. . . . I asked him to clarify this by adding a sentence to the
end of his statement.”
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of leniency if he admitted guilt.” Paul claims, for example,
that after almost two hours of interrogation,
I’m thinking, man, he’s not taking no for an answer
and I don’t know what to do. I don’t know what to
say besides tell him, yes, I did it. And I thought that
I wasn’t going to be able to walk out that room if I
kept telling him no.
At that point, Paul alleges that Jensen told him,
[I]f I say no — if I keep saying no and denying it,
then this could lead to court and you could go to jail
for three to five months. . . . And if I just said that,
yes, that all of this will be over, this won’t lead to
court. No charges will be pressed and you won’t be
going to jail and that I will only have to see a counsel-
or.”4
After these false promises, the Stoots contend, “Paul’s will
was overcome by these tactics and the physically imposing
Detective Jensen,” and Paul falsely confessed. In Paul’s
words,
I had never been so scared in my life as when he said
he didn’t believe me when I told the truth. I wanted
my mom or dad or a teacher there, but I thought I
just had to sit there and do what he said. He just kept
drilling me saying he did not believe me again and
again. . . . I felt I had to lie and tell him what he
wanted to get out of that room.
The Stoots assert that Jensen’s interviewing tactics also
violated Miranda, as Paul lacked the capacity to consent to the
interrogation. They allege that although Jensen “verbally read
4Jensen specifically denies this accusation, contending that he “never
made any promises to Paul II about what might happen to him.”
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[Paul] his ‘Miranda’ rights, and instructed [Paul] to sign the
waiver form provided,” later psychological and developmen-
tal testing confirmed that Paul “lacked the capacity to under-
stand or assert his legal rights.” Paul thought that the right to
remain silent, for example, meant that he “couldn’t say any-
thing. I had to be quiet and I just had to listen to the cop.” The
right to an attorney, in his mind, meant that “after we had the
interview, I could appoint an attorney. And if I couldn’t, then
the State will give me one.” According to the Stoots, Paul’s
failure to understand his Miranda rights should have been
apparent to Jensen at the time of the interview.
After the interview, Jensen sent Paul back to class. On July
2, 2004, Snohomish County prosecutor Janice Ellis filed an
Information charging Paul with child molestation in the first
degree. An Affidavit of Probable Cause, filed with the Infor-
mation, relied solely on (1) Nicki’s statements to police; (2)
Jensen’s interview of A.B.; and (3) Paul’s confession. At an
arraignment hearing a few weeks later, the Superior Court
found that “probable cause exists for the charge” and released
Paul on his own recognizance on various conditions, includ-
ing that he “always be supervised by an adult who is aware
of the charge.”
On November 3, 2004, the Superior Court held a hearing
pursuant to Washington Criminal Rule 3.5 (the “CrR 3.5 hear-
ing”) to determine the admissibility of Paul’s confession.5
5Criminal Rule 3.5 provides, inter alia, that “[w]hen a statement of the
accused is to be offered in evidence, the judge at the time of the omnibus
hearing shall hold or set the time for a hearing . . . for the purpose of deter-
mining whether the statement is admissible. . . . It shall be the duty of the
court to inform the defendant that: (1) he may, but need not, testify at the
hearing on the circumstances surrounding the statement; (2) if he does tes-
tify at the hearing, he will be subject to cross examination with respect to
the circumstances surrounding the statement and with respect to his credi-
bility; (3) if he does testify at the hearing, he does not by so testifying
waive his right to remain silent during the trial; and (4) if he does testify
at the hearing, neither this fact nor his testimony at the hearing shall be
mentioned to the jury unless he testifies concerning the statement at trial.”
Wash. Super. Ct. Crim. R. 3.5(a), (b).
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After hearing testimony from Paul, Jensen, and expert wit-
nesses, the court concluded that Paul “lacked the capacity to
understand his rights and . . . could not make an intelligent or
knowing waiver of his rights.” The court found that because
Paul did not ask for clarification of the meaning of his rights
and did not display any apparent confusion at the time of the
Miranda warnings, “it would have appeared to Detective Jen-
sen that [Paul] understood his rights.” Based on the totality of
the circumstances, however, including Paul’s age, experience,
background, and intelligence, the court concluded that any
waiver of his rights was invalid.
The Superior Court also addressed the allegedly coercive
nature of Jensen’s interrogation techniques, finding that “it is
not per se coercive to use what has been described . . . as Reid
techniques [i.e., blaming the victim] for interrogation.” The
court noted, however, that Paul also claimed that Jensen
“made certain promises of leniency if he confessed and
implied more serious consequences if he refused to confess.”
Although Jensen denied making these threats or promises, the
court found Paul’s testimony on this point persuasive, as Paul
“lacked the experience and knowledge to fabricate the nature
of the promises made” and “was not sophisticated enough to
create a scenario of promised counseling in lieu of other pun-
ishment.” The court therefore concluded that the statements
made by Paul in his interview with Jensen “were the product
of impermissible coercion,” and were therefore inadmissible.
The Superior Court also heard testimony regarding A.B.’s
competence as a witness. The court learned that A.B. had a
history of hallucinations and panic attacks, that she had been
prescribed medication for anxiety neurosis, and that doctors
had previously referred her to a child mental health specialist.
Based on these concerns as well as A.B.’s testimony, the
court found that A.B. “lacked the mental capacity at the time
of the occurrence . . . to receive accurate impressions” and
“lacked memory sufficient to retain independent recollection
of any occurrences supporting the charged offense.” The court
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thus concluded that A.B. was not competent to testify at
Paul’s trial, and excluded all “alleged hearsay statements
made on or about December 19, 2003 [the date of A.B.’s
statements to Nicki], and January 8, 2004 [the date of Jen-
sen’s interview].” The court also granted Paul’s motion to dis-
miss the charges against him with prejudice, holding that “as
a matter of law the undisputed material facts fail to establish
a prima facie case of guilt.”
After the charges against Paul were dismissed, the Stoot
family brought this action against Jensen and the City of Ever-
ett.6 As noted, the Stoots alleged various federal constitutional
claims under § 1983, as well as a claim against the City for
municipal liability and a state law claim for intentional inflic-
tion of emotional distress.7 The district court granted defen-
dants’ motion for summary judgment on all claims.
Specifically, the district court held that (1) Jensen was entitled
to qualified immunity on the Stoots’ Fourth Amendment
claims because “[a] reasonable officer in [his] position could
have believed that the statements by the victim established
probable cause, notwithstanding the significant amount of
time between the accusations by A.B. and the alleged moles-
tation, and A.B.’s young age”; (2) the Stoots “failed to make
out a cognizable § 1983 claim for violation of [Paul’s] Fifth
Amendment privilege against compelled self-incrimination”
because Paul’s statements were never used against him in a
criminal trial; (3) Jensen’s interrogation of Paul was not so
“unduly coercive or improper” as to violate Paul’s right to
substantive due process under the Fourteenth Amendment; (4)
the Stoots “failed to identify facts in support of their claim
that a government custom or policy resulted in a violation of
Paul II’s constitutional rights,” foreclosing any claim for
6The Stoots filed this action in Washington Superior Court on Novem-
ber 22, 2005. Defendants subsequently removed it to federal court.
7The Stoots also initially claimed a violation of Paul’s Sixth Amend-
ment right to counsel, but did not oppose summary judgment on that claim
and do not raise it on appeal.
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municipal liability; and (5) the Stoots’ claims for outrage or
intentional infliction of emotional distress failed as a matter
of law because Jensen’s actions were not “outrageous in char-
acter” or “extreme in degree.”
The Stoots timely appealed.
ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing the facts in the light most favorable to the
non-moving party. Blankenhorn v. City of Orange, 485 F.3d
463, 470 (9th Cir. 2007). Summary judgment is appropriate
only “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(c).
I. FOURTH AMENDMENT SEIZURE
[1] “By virtue of its ‘incorporation’ into the Fourteenth
Amendment, the Fourth Amendment requires the States to
provide a fair and reliable determination of probable cause as
a condition for any significant pretrial restraint of liberty.”
Baker v. McCollan, 443 U.S. 137, 142 (1979). In this case,
defendants concede that on plaintiff’s version of the facts,
which we must credit for purposes of summary judgment,
Jensen’s detention and interrogation of Paul constituted a sei-
zure, and we agree. See Doe v. Heck, 327 F.3d 492, 509-10
& n.15 (7th Cir. 2003). We must therefore decide whether
Jensen had probable cause to seize Paul and, if not, whether
Jensen is entitled to qualified immunity because the law was
not clearly established at the time of the interrogation.8
8Before the Supreme Court’s recent decision in Pearson v. Callahan,
129 S. Ct. 808, 818 (2009), courts addressing an official’s claim of quali-
fied immunity were required to follow the two-step sequential inquiry
established in Saucier v. Katz, 533 U.S. 194, 202 (2001), asking first
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A. PROBABLE CAUSE
[2] “Probable cause exists where the facts and circum-
stances within their [the officers’] knowledge and of which
they had reasonably trustworthy information [are] sufficient
in themselves to warrant a [person] of reasonable caution in
the belief that an offense has been or is being committed.”
Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (inter-
nal quotation marks omitted); see also Ornelas v. United
States, 517 U.S. 690, 696 (1996); Illinois v. Gates, 462 U.S.
213, 238 (1983). Further, “[b]ecause many situations which
confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mis-
takes on their part. But the mistakes must be those of reason-
able [people], acting on facts leading sensibly to their
conclusions of probability.” Brinegar, 338 U.S. at 176.
The Stoots argue that Jensen violated Paul’s Fourth
Amendment rights by relying solely on “the confused state-
ment from a 4-year-old girl made during an improperly con-
ducted interview” to justify Paul’s seizure. They note that
A.B. provided “vastly different reports about what was
alleged to have happened, when, where, and with whom” —
whether the plaintiff alleged a violation of a constitutional right and, sec-
ond, whether that right was clearly established at the time of the conduct
at issue. Pearson relieved courts of their obligation always to follow this
sequence, permitting “[t]he judges of the district courts and the courts of
appeals . . . to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Pearson, 129 S. Ct.
at 818.
Although rigid adherence to the Saucier protocol is no longer required,
the Court was careful to note that Saucier‘s two-step procedure is “often
beneficial,” as it “promotes the development of constitutional precedent.”
Id.; see also id. at 821-22. Such is the case here, where we have not previ-
ously addressed whether a police officer may rely solely on the statements
of a very young victim of alleged sexual abuse to establish probable cause
to seize a potential suspect.
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inconsistencies that should have raised “serious concerns
about the veracity and reliability of the allegation made by
A.B.” And they maintain that a reasonable officer, presented
with A.B.’s contradictory account of alleged abuse, should
have engaged in a more thorough investigation to corroborate
A.B.’s allegations before seizing and interrogating Paul. Had
Jensen done so, the Stoots contend, he quickly would have
learned that A.B. was “a confused young girl, with a long his-
tory of hallucinations, vaginal issues, and reports of sexual
abuse by other persons,” whose statements, standing alone,
were not sufficiently reliable to constitute probable cause.9
9The Stoots present two other arguments in support of their Fourth
Amendment claim, neither of which has merit. First, they argue that defen-
dants conceded in the proceedings below that Jensen lacked probable
cause. This argument is based on the district court’s characterization of an
exchange with counsel at oral argument, in which defense counsel admit-
ted that “reasonable minds could differ as to whether Detective Jensen had
probable cause to arrest Paul II before the questioning at the school.” An
admission that reasonable minds could differ, however, is not a concession
that the opposing party is correct. Moreover, defendants clearly do not
concede that Jensen lacked probable cause on appeal, as they address the
issue at some length in their brief.
Second, the Stoots challenge Jensen’s interviewing techniques, arguing
that his interview with A.B. was riddled with “leading and/or coercive
questions” that undermined the reliability of her answers. This argument
is foreclosed by our decision in Devereaux v. Abbey, 263 F.3d 1070 (9th
Cir. 2001) (en banc), in which we rejected a foster parent’s claim that gov-
ernmental officials acted unconstitutionally by “fail[ing] . . . to conduct
and monitor these interrogations [of a child] in a manner that would ensure
the veracity of the information obtained.” Id. at 1076 (quotation omitted).
See also Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir.
2003) (relying on Devereaux, rejecting a claimed constitutional violation
premised on “mere allegations that [an official] used improper interview
techniques” when interviewing a child, including continuing the question-
ing after an initial denial of abuse.). Thus, even if Jensen employed
improper techniques in his interview with A.B., that would not give rise
to a separate constitutional claim. Rather, the question before us remains
whether the information available to Jensen at the time of the seizure was
sufficiently reliable to constitute probable cause.
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[3] We agree with the Stoots that A.B.’s statements were
not sufficiently reliable to establish probable cause to seize
Paul. Law enforcement officers may obviously rely on state-
ments made by the victims of a crime to identify potential
suspects. But such information does not, on its own, support
a finding of probable cause if the information is not reason-
ably trustworthy or reliable. See Cortez v. McCauley, 478
F.3d 1108, 1116-22 (10th Cir. 2007) (en banc); United States
v. Shaw, 464 F.3d 615, 623-26 (6th Cir. 2006); Clay v. Con-
lee, 815 F.2d 1164, 1168 (8th Cir. 1987). In this case, three
factors, taken together, compel the conclusion that the state-
ments made by A.B. to Jensen were not sufficiently trustwor-
thy or reliable to establish probable cause on their own.
[4] First, A.B. was four years old at the time of the inter-
view, and she was reporting events that purportedly occurred
when she was three. Common experience counsels extreme
caution in crediting detailed recollections of events said to
have occurred at such an extremely young age, particularly
those reported over a year later by a child still very young.
See Shaw, 464 F.3d at 624.
[5] Second, A.B. changed her answers at several points dur-
ing the interview. She began by stating that no one had
touched her in a way she didn’t like, but proceeded to make
several allegations — in response to specific questions from
Jensen — that Paul had touched her in ways she “wouldn’t”
or “didn’t” like. She also initially denied that Paul had licked
her or that she had licked him, but then reversed herself on
both counts by the end of the interview, claiming both that
“[Paul] actually has licked me” and that “[she] did lick his
poo poo.”
[6] Third, A.B. at one point confused Paul with another
boy. In response to a question about Paul, A.B. stated that
“Preston puts his poo poo in my pee pee.” She did so right
after denying that Paul’s penis had touched her face, or that
she had touched Paul’s penis.
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[7] These three circumstances, considered together, point to
the need for further investigation and corroboration to estab-
lish probable cause. In cases involving very young child vic-
tims, the courts have repeatedly emphasized the need for
some evidence in addition to the statements of the victim to
corroborate the allegations and establish probable cause. See
Shaw, 464 F.3d at 624 (discussing this line of cases and not-
ing that, in each case, “the court specifically noted that a
child’s testimony was not the only evidence supporting proba-
ble cause”). The need for further investigation was particu-
larly acute in this case, in which a four-year-old victim
struggled to provide a coherent description of abuse that
allegedly occurred eighteen months earlier, when she was
three years old. Cf. id. (“We are not aware . . . of any situation
in which the uncorroborated hearsay statement of a child as
young as three, standing alone, has been considered sufficient
to establish probable cause.”).
Defendants maintain that the statements of child victims —
even if internally conflicting — can establish probable cause
to arrest a suspect. For support, they rely primarily on the
Tenth Circuit’s decision in Easton v. City of Boulder, 776
F.2d 1441 (10th Cir. 1985).
In Easton, the parents of a three-year-old boy reported that
he had been molested the previous day. Id. at 1443. After
interviewing the alleged victim among others, the police
secured a warrant for Easton’s arrest. Id. at 1446. The district
attorney subsequently decided not to press formal charges. Id.
Easton then brought suit under § 1983, challenging the reli-
ability of the child testimony used by the police. Id. at 1449.
The Tenth Circuit rejected Easton’s claim that the police
unreasonably relied on the statements of the child victim, not-
ing that “[i]n a great many child molestation cases, the only
available evidence that a crime has been committed is the tes-
timony of children” and that “[t]o discount such testimony
from the outset would only serve to discourage children and
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parents from reporting molestation incidents and to unjustly
insulate the perpetrator of such crimes from prosecution.” Id.
The court therefore flatly repudiated a per se rule that the tes-
timony of very young child victims may not be relied upon at
all in a probable cause determination. Id.
The court also rejected Easton’s claim that “apparent incon-
sistencies” in the child testimony rendered the police officers’
reliance on those statements unreasonable. Although it
described this argument as “the one point which does lend
some merit to [Easton’s] case,” the court began by explaining
that “when examining informant evidence used to support a
claim of probable cause . . . the skepticism and careful scru-
tiny usually found in cases involving informants . . . is appro-
priately relaxed if the informant is an identified victim or
ordinary citizen witness.” Id. The court noted that while cer-
tain statements of the child victim were undeniably self-
contradictory, those inconsistencies “[did] nothing to under-
mine the solid core of the children’s statements regarding
[one instance of assault] and the location of the perpetrator’s
apartment.” Id. at 1450. The court therefore held that the
police had probable cause to arrest Easton once they had com-
pleted their interviews.
Easton simply cannot bear the weight placed upon it by
defendants in this case. Although defendants cite Easton for
the general proposition that police may reasonably rely solely
on the partially-conflicting statements of child victims, the
investigating officers in that case did no such thing. To the
contrary, the police interviewed both the victim and his five-
year-old playmate, who had allegedly witnessed one of the
two incidents of molestation. 776 F.2d at 1443. The Tenth
Circuit emphasized that the officer’s “separate interview of
[the victim’s playmate] also corroborated all the facts given
by [the victim] and by his father.” Id. The court also stressed
that the two children “together led [the officer] to the laundry
room where the second assault took place,” and that the offi-
cer there observed the blanket and black vinyl chair that both
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boys had mentioned in their statements. Id. at 1443-44. The
officer also interviewed the apartment manager, learning that
Easton was a loner with few friends who “had been observed
in the past staring at the children playing in the common area
of the apartment complex.” Id. at 1444 (internal quotation
marks omitted).
The police in Easton therefore had substantial evidence
corroborating the victim’s statements of alleged abuse, ren-
dering the officers’ reliance on those statements reasonable.
Id. at 1449-50. In this case, by contrast, defendants submit
that A.B.’s statements standing alone, without any corroborat-
ing evidence, provided probable cause to arrest Paul. Easton
provides no support for that proposition.10
[8] We hold that Jensen could not rely solely on the uncor-
roborated, inconsistent statements of this very young child to
establish probable cause to arrest Paul. Given A.B.’s age at
the time of the purported events and at the time she reported
them, as well as the inconsistencies noted above, A.B.’s state-
ments, standing alone, were insufficient to establish probable
cause to seize Paul.11
10Indeed, the Tenth Circuit has cited its opinion in Easton for precisely
the opposite principle, describing Easton as a case involving statements by
child victims that were “independently corroborated by police investiga-
tion.” Cortez, 478 F.3d at 1119.
11Requiring officers to conduct some further investigation to corrobo-
rate the allegations of a young child victim would not impose any substan-
tial burden on law enforcement. In this case, for example, there were
several, easy approaches Jensen could have used to attempt to corroborate
A.B.’s statements, approaches which also would have allowed him to
learn that A.B. and her mother were less than credible. Jensen could have
verified that A.B. had lived with the Stoots and why she was living there;
determined whether A.B. could successfully identify Paul; and sought
medical information to assess whether A.B.’s 18-month-old allegations
were supported by any physical evidence. As it turned out, any such effort
to corroborate A.B.’s statements likely would have cast serious doubt on
her allegations, as her mother was engaged in an ongoing financial dispute
with the Stoots at the time of her allegations, and A.B. had a history of
mental health problems.
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B. QUALIFIED IMMUNITY
Even if Jensen did violate Paul’s Fourth Amendment rights
by seizing him without probable cause, Jensen may still be
entitled to qualified immunity if his conduct “ ‘[did] not vio-
late clearly established statutory or constitutional rights of
which a reasonable person would have known.’ ” Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitz-
gerald, 457 U.S. 800, 818 (1982)). Defendants argue, and the
district court held, that Jensen is entitled to qualified immu-
nity because “[a] reasonable officer in Detective Jensen’s
position could have believed that the statements by the victim
established probable cause.” Defendants argue, in other
words, that although Jensen was mistaken in his belief that
A.B.’s statements established probable cause, the mistake was
a reasonable one.
[9] The doctrine of qualified immunity “operates to ensure
that before they are subjected to suit, officers are on notice
their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (internal quotation marks omitted). In this case, the
Stoots have not cited a single case squarely holding that an
officer cannot rely solely on the statements of a child sexual
assault victim obtained during a personal interview to estab-
lish probable cause, nor are we aware of one. To the contrary,
although two circuit courts of appeals have held that uncor-
roborated hearsay statements of a child victim are insufficient
to establish probable cause, both of those opinions could be
read to imply — although we do not so read them — that the
officers lacked probable cause primarily because they had not
personally interviewed the victim and therefore had no basis
upon which to assess credibility. See Cortez, 478 F.3d at
1119; Shaw, 464 F.3d at 624.
[10] In this case, of course, Jensen personally interviewed
the victim and determined that she was credible before he
seized Paul. Although we disagree with his assessment of
A.B.’s credibility and read the applicable case law as consis-
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tent with our conclusion, none of the cases cited by the Stoots
put him directly on notice that his decision to rely on A.B.’s
statements, without any corroboration, was unlawful. We
therefore affirm the district court’s judgment that he is enti-
tled to qualified immunity on the Stoots’ Fourth Amendment
claim.
II. FIFTH AMENDMENT CLAIMS
The Stoots also allege that Jensen violated Paul’s Fifth
Amendment right against self-incrimination by coercing a
confession during the interrogation at Paul’s school. Defen-
dants argue — and the district court held — that the Stoots
cannot state a claim under the Fifth Amendment because
Paul’s statements were never used against him at trial. For the
reasons set forth below we disagree.
A. “USE” OF A STATEMENT IN A “CRIMINAL CASE”
Our consideration of this coerced confession issue begins
with a fairly recent Supreme Court case, Chavez v. Martinez,
538 U.S. 760 (2003), which establishes the parameters of the
problem we face but does not solve it. Chavez addressed
whether a former criminal suspect could sue a police officer
under § 1983 for coercing a confession in violation of his
Fifth Amendment rights. Specifically, the police failed to give
the suspect, Oliverio Martinez, any Miranda warnings, and
interrogated him under circumstances alleged to be extremely
coercive. Martinez made several incriminating statements but
was never charged with any crime. Id. at 764. He subse-
quently brought suit under § 1983 for violation of his Fifth
Amendment right “not to be compelled in any criminal case
to be a witness against himself” and his Fourteenth Amend-
ment substantive due process right to be free from coercive
questioning. Id. at 765 (internal quotation marks omitted).
[11] In a set of opinions, none of which commanded a
majority on the Fifth Amendment issue, the Court held that
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coercive police questioning does not violate the Fifth Amend-
ment, absent use of the statements in a criminal case. See id.
at 766 (“We fail to see how, based on the text of the Fifth
Amendment, Martinez can allege a violation of this right,
since Martinez was never prosecuted for a crime, let alone
compelled to be a witness against himself in a criminal case.”)
(Thomas, J., joined by Rehnquist, C.J., O’Connor, J., and
Scalia, J.); id. at 777-78 (describing “the core of the guarantee
against compelled self-incrimination” as “the exclusion of any
such evidence” and declining to “expand protection of the
privilege . . . to the point of [ ] civil liability” in the absence
of a more “powerful showing” that the conduct at issue placed
this “core guarantee, or the judicial capacity to protect it,” at
risk) (Souter, J., joined by Breyer, J.). The Court held that
unlawful police interrogation techniques might give rise to a
substantive due process claim under the Fourteenth Amend-
ment, see id. at 773 (plurality opinion of Thomas, J.); id. at
779 (Souter, J.); id. at 787 (Stevens, J.); id. at 799 (Kennedy,
J.), but that the Fifth Amendment was not violated unless and
until allegedly coerced statements were used against the sus-
pect in a criminal case.
Chavez poses but does not decide the issue we face, as the
Court had no occasion to explicate the sort of “use” in a
“criminal case” that gives rise to a Fifth Amendment viola-
tion. The plurality stated that “a ‘criminal case’ at the very
least requires the initiation of legal proceedings,” but, as Mar-
tinez never faced criminal charges, did not decide “the precise
moment when a ‘criminal case’ commences.” Id. at 766-67.
Justice Souter’s concurring opinion also did not discuss when
a statement has been “used” in violation of the Fifth Amend-
ment, focusing instead on Martinez’s failure to demonstrate
that a damages remedy was necessary in every case of police
coercion to protect the Fifth Amendment right. See id. at 778-
79 (Souter, J., concurring).
[12] The Stoots’ Fifth Amendment claim in this case falls
squarely within the gray area created by Chavez. Unlike Mar-
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tinez, who was never charged with any crime, Paul’s state-
ments were used against him in (1) the Affidavit filed in
support of the Information charging him with child molesta-
tion; (2) a pretrial arraignment and bail hearing (the CrR 3.2
hearing);12 and (3) a pretrial evidentiary hearing (the CrR 3.5
hearing) to determine the admissibility of his confession. The
question is whether these forms of reliance on Paul’s state-
ments constitute “use” in a “criminal case” under Chavez. We
conclude that (1) and (2) above do constitute such “use.”
Although we have not, after Chavez, addressed the scope
of the “use” concept for Fifth Amendment purposes, other cir-
cuit courts have, with mixed results. The Third, Fourth, and
Fifth Circuits have applied Chavez to bar recovery under the
Fifth Amendment unless the allegedly coerced statements
were admitted against the defendant at trial. See Burrell v.
Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005) (holding that
because plaintiff did not allege “any trial action that violated
his Fifth Amendment rights[,] . . . ipso facto, his [§ 1983]
claim fails”) (emphasis in original); Murray v. Earle, 405
F.3d 278, 285 (5th Cir. 2005); Renda v. King, 347 F.3d 550,
12Following oral argument in this case, we asked the Stoots to provide
documentation supporting their assertion that Paul’s statements were used
against him at arraignment on July 23, 2004. The Stoots have provided us
with copies of the clerk’s minute entry and a transcript of the July 23 hear-
ing, as well as a copy of Washington Superior Court Rule 3.2, which gov-
erns pretrial release. We take judicial notice of these documents and
conclude, as the Stoots suggest, that the Superior Court necessarily took
Paul’s statements as described in the Information and supporting docu-
ments into account when setting conditions for his release. Rule 3.2 spe-
cifically requires the court to make a finding of probable cause or release
the accused without conditions, and the court did so. See Wash. Super. Ct.
Crim. R. 3.2. To determine appropriate conditions for release, the court is
to consider, inter alia, the “nature of the charge” based on “the available
information.” Wash. Super. Ct. Crim. R. 3.2(e). In this case, it appears that
the only “available information” on the nature of the alleged offense was
the Information and Affidavit of Probable Cause which, as noted above,
included Paul’s statements; the oral hearing did not involve the factual
allegations concerning the offense at all.
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552 (3d Cir. 2003). Emphasizing the Court’s description of
the Fifth Amendment privilege against self-incrimination as a
“trial right,” see Withrow v. Williams, 507 U.S. 680, 692
(1993), these courts have held “that it is the use of coerced
statements during a criminal trial, and not in obtaining an
indictment, that violates the Constitution.” Renda, 347 F.3d at
559; see also Burrell, 395 F.3d at 513-14 & n.4.
The Seventh and Second Circuits disagree. In Sornberger
v. City of Knoxville, Illinois, 434 F.3d 1006 (7th Cir. 2006),
the Seventh Circuit addressed the claims of a couple mis-
takenly arrested and charged with bank robbery. Id. at 1009-
12. During their investigation police interviewed the wife,
who falsely confessed to assisting her husband with the rob-
bery but subsequently claimed that this confession was the
product of psychological coercion. Id. at 1011. Police used
this confession to support charges filed against the couple,
and the trial court denied a motion to suppress after a prelimi-
nary hearing. Id. at 1012. Charges were subsequently
dropped, and the Sornbergers then brought suit under § 1983.
Evaluating the wife’s Fifth Amendment claim, the Seventh
Circuit began by noting that “her ‘criminal case’ advanced
significantly farther than did that of the Chavez plaintiff, who
never had criminal charges filed against him at all. Teresa’s
statement, by contrast, allowed police to develop probable
cause sufficient to charge her and initiate a criminal prosecu-
tion.” Id. at 1025. Although the Seventh Circuit noted the
Third and Fourth Circuit’s decisions in Renda and Burrell, see
id. at 1025-26, it reached the opposite conclusion:
[W]e are satisfied that her unwarned statements were
used against her in a ‘criminal case’ and in a manner
that implicates the Self-Incrimination Clause. Before
charges against Teresa and her husband eventually
were dropped, a preliminary hearing was held to
determine whether probable cause existed to allow
the case against her to go to trial. Teresa’s confes-
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sion was offered by the prosecution to support a
determination of probable cause. Her confession was
then used to set the amount of bail . . . . At a subse-
quent arraignment on charges stemming from the . . .
robbery, Teresa’s confession was once again admit-
ted before she was called upon to plead guilty or not
guilty.
Id. at 1026 (footnote omitted). Sornberger concluded that
“where, as here, a suspect’s criminal prosecution was not only
initiated, but was commenced because of her allegedly un-
warned confession, the ‘criminal case’ contemplated by the
Self-Incrimination Clause has begun. . . . This use of Teresa’s
confession, if the confession is indeed found to have been
elicited without Miranda warnings, allows a suit for damages
under § 1983.” Id. at 1026-27 (emphasis in original). The
court specifically “refuse[d] to hold that the right against self-
incrimination cannot be violated unless a confession is intro-
duced in the prosecution’s case-in-chief at trial before the ulti-
mate finder of fact.” Id. at 1027 n.15.
More recently, the Second Circuit joined the Seventh Cir-
cuit in rejecting the view that police coercion violates the
Fifth Amendment only if the confession is used at trial. In
Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007), govern-
ment officials used allegedly coerced statements by Higazy as
the basis for filing a criminal complaint and opposing bail. Id.
at 167. The government later withdrew its complaint, and
Higazy was released. Id. He then filed a Bivens action against
federal officials. Id. at 168.
Although Higazy’s statements were never used against him
at a criminal trial, the Second Circuit held that the govern-
ment’s use of his statements against him at the preliminary
bail hearing was a sufficient basis for alleging a violation of
his Fifth Amendment rights. Id. at 170. “Higazy’s initial
appearance . . ., which included the determination of whether
he would be detained or released on bail, was part of the crim-
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inal case against Higazy,” held the Second Circuit, so the gov-
ernment’s use of coerced statements at that hearing violated
his Fifth Amendment rights.13 Id. at 173.
[13] We adopt the general approach of Sornberger and
Higazy: A coerced statement has been “used” in a criminal
case when it has been relied upon to file formal charges
against the declarant, to determine judicially that the prosecu-
tion may proceed, and to determine pretrial custody status.
Such uses impose precisely the burden precluded by the Fifth
Amendment: namely, they make the declarant a witness
against himself in a criminal proceeding. Here, for example,
in the Affidavit of Probable Cause supporting the Information
and in the arraignment hearing, defendants essentially stated,
“Paul said [insert coerced statement here],” rendering Paul a
witness against himself.14 We therefore join the Second and
Seventh Circuits in holding that use of the coerced statements
at trial is not necessary for Paul to assert a claim for violation
of his rights under the Fifth Amendment.15
13Higazy reaffirmed the Second Circuit’s pre-Chavez ruling in Weaver
v. Brenner, 40 F.3d 527 (2d Cir. 1994), which held that “use or derivative
use of a compelled statement at any criminal proceeding,” including grand
jury proceedings, violates the declarant’s rights under the Fifth Amend-
ment. Id. at 535 (emphasis omitted). Weaver specifically held that “use of
the statement at trial is not required.” Id.
14We do not agree with the Stoots’ circular argument that Paul’s state-
ments were “used” against him at the pretrial hearing to determine the
admissibility of those same statements. Because we conclude that the
statements were “used” against Paul in the relevant sense in both the Affi-
davit of Probable Cause supporting the Information and at his arraign-
ment, however, the fact that the statements were not “used” at the
admissibility hearing is of no moment.
15We note that our conclusion is responsive to the concerns expressed
in Justice Souter’s concurring opinion in Chavez. Justice Souter noted that
his primary problem with plaintiff’s argument in Chavez was that he “of-
fers no limiting principle or reason to foresee a stopping place short of lia-
bility in all [cases involving coerced statements].” 538 U.S. at 778-79. The
rule we adopt today, holding that the Fifth Amendment has been violated
only when government officials use an incriminating statement to initiate
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B. CAUSATION
[14] Because Paul’s rights under the Fifth Amendment
were not violated until the allegedly coerced statements were
used against him in an affidavit filed by the prosecutor and at
arraignment, we must also decide whether the prosecutor’s
separate decision to rely on the statements in this manner
served, as a matter of law, as a superseding cause that pre-
cludes Jensen’s liability. See Higazy, 505 F.3d at 175; Mur-
ray, 405 F.3d at 289-93. Doing so, we conclude that on the
present record, a jury could conclude that the use of the alleg-
edly coerced statements against Paul was a reasonably fore-
seeable consequence of Jensen’s decision to interrogate Paul
and file a police report detailing his alleged confession, and
that Jensen is therefore an appropriate defendant in this
§ 1983 suit.
Evaluating causation in this type of case requires us to con-
sider two basic tort principles. See Higazy, 505 F.3d at 175;
Murray, 405 F.3d at 292. On one hand, government officials,
like other defendants, are generally responsible for the “natu-
ral” or “reasonably foreseeable” consequences of their
actions. Higazy, 505 F.3d at 175 (citing Monroe v. Pape, 365
U.S. 167, 187 (1961)); Murray, 405 F.3d at 292. At the same
time, however, liability may not attach if “an intervening
decision of an informed, neutral decision-maker ‘breaks’ the
chain of causation,” meaning that the harm to the plaintiff can
be traced more directly to an intervening actor. Murray, 405
F.3d at 292; see also Higazy, 505 F.3d at 175. The question
is therefore whether use of the allegedly coerced statements
was reasonably foreseeable to Jensen and, if so, whether some
intervening decision broke this chain of causation.
or prove a criminal charge, provides a sensible “stopping place.” In cases
like Chavez, where the suspect was never charged, there would be no vio-
lation. Similarly, in cases where police coerce a statement but do not rely
on that statement to file formal charges or oppose bail, the Fifth Amend-
ment would not be implicated.
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[15] Like the other circuits to address this question, we
conclude that, absent unusual circumstances, a police officer
eliciting incriminating statements from a criminal suspect
“could reasonably have foreseen that a coerced confession
would be used against [the suspect] and would lead to [the
suspect’s] detention.” Higazy, 505 F.3d at 177; see also
McKinley v. City of Mansfield, 404 F.3d 418, 436-39 (6th Cir.
2005). By the time he went to Paul’s school to investigate
A.B.’s allegations, Jensen viewed Paul as a suspect in a crimi-
nal case. At the interrogation, he employed the “Reid tech-
nique” to confirm his suspicion that Paul was guilty of
molesting A.B. and then included several of Paul’s incrimi-
nating statements in his official police report. Absent some
evidence that Jensen later “attempted to prevent the use of the
allegedly incriminating statements . . . or that he never turned
the statements over to the prosecutor in the first place,”
McKinley, 404 F.3d at 439, a jury could infer that the subse-
quent uses of the statements to file criminal charges against
Paul and to set conditions for his release at arraignment were
reasonably foreseeable consequences of Jensen’s conduct.
Given that reasonable inference, the prosecutor’s decision
to use the allegedly coerced statements in the affidavit and at
arraignment did not serve, as a matter of law, as an interven-
ing or superseding cause that cut off Jensen’s liability. Just as
a police officer may be held liable when a prosecutor files
criminal charges against a defendant without probable cause,
see Hartman v. Moore, 547 U.S. 250, 261-63 (2006), so too
may an officer be held liable for wrongfully procuring state-
ments then used by the prosecutor to initiate legal proceed-
ings, see McKinley, 404 F.3d at 439. Here, there is no doubt
that the prosecutor acted in reliance on the information Jensen
provided rather than independently, as the Affidavit of Proba-
ble Cause specifically states that it is “based entirely” on “in-
formation . . . obtained through police reports and witness
statements submitted by the [police department],” and “not on
[the prosecutor’s] personal knowledge.”
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[16] We therefore join the Sixth Circuit in concluding that
ordinarily, “in actions brought under § 1983 for alleged viola-
tions of [the Fifth Amendment], it is the person who wrong-
fully coerces or otherwise induces the involuntary statement
who causes the violation of the [Fifth Amendment] privilege.”
McKinley, 404 F.3d at 439 (internal quotation omitted).
C. QUALIFIED IMMUNITY
Although we thus hold that the Stoots have alleged a viola-
tion by Jensen of Paul’s rights under the Fifth Amendment,
we also must decide whether Jensen is entitled to qualified
immunity because his conduct did not violate “clearly estab-
lished statutory or constitutional rights of which a reasonable
person would have known.” Harlow, 457 U.S. at 818 (internal
quotation marks omitted). Defendants argue that Jensen is
entitled to qualified immunity because, “[i]n light of the hold-
ing[ ] in Chavez . . ., a reasonable police officer would believe
that a Fifth Amendment violation does not occur until the
coerced statement is used against the person during the trial
at which the suspect’s guilt is determined.” We disagree that
the uncertainty resulting from Chavez is pertinent to the quali-
fied immunity determination. Jensen’s immunity cannot turn
on whether, and in what way, a prosecutor ultimately “used”
the statements allegedly coerced during Jensen’s interrogation
of Paul, as Jensen’s role in the constitutional violation ended
before that use.
At the time of the interrogation, Jensen was on notice under
clearly established law that if he failed to provide Paul with
appropriate Miranda warnings or physically or psychologi-
cally coerced a statement from Paul, the use of the confes-
sions could ripen into a Fifth Amendment violation. That
there was some uncertainty as to precisely what “use” in a
criminal case would suffice does not matter. Qualified immu-
nity is accorded so that reasonable officers are not deterred in
carrying out their duties vigorously. See Harlow, 457 U.S. at
806-07. The qualified immunity evaluation must therefore
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focus on an officer’s duties, not on other aspects of the consti-
tutional violation.
That the allegedly coerced confession did not “ripen” into
a Fifth Amendment violation until it was “used” against Paul
in a criminal case does not change this analysis, as Jensen had
no reason to believe that the statements would not be used
against Paul. See Higazy, 505 F.3d at 174. As the Second Cir-
cuit has explained, the reasonableness of a police officer’s
conduct in such a case depends on whether a reasonable offi-
cer in the defendant’s position “would have understood that
the confession allegedly coerced from [the suspect] would
have been used in a criminal case against [the suspect],” in
violation of his Fifth Amendment right to be free from com-
pelled self-incrimination. See id. The question, in other words,
is not whether a reasonable officer could have discerned the
precise meaning of “use” in a criminal case under Chavez, but
rather whether the officer obtained the allegedly coerced
statements so that they could later be used against the suspect
in a criminal case.
[17] As we have already explained in Part B above, a
properly-instructed jury could find that some “use” of Paul’s
statements was reasonably foreseeable to Jensen at the time of
the interrogation. We thus join the Second Circuit in holding
that an officer is not entitled to qualified immunity where “[a]
reasonable fact finder could conclude that it was not reason-
able for an officer to believe that it was constitutional to
coerce a confession and then to hand that information to a
prosecutor — without divulging the means by which the con-
fession was acquired — for use in a criminal case.” Id. at 174-
75.
[18] The district court did not separately analyze the merits
of the Stoots’ Fifth Amendment claim, focusing instead on the
uncertainty in the lower courts regarding the meaning of
“use” under Chavez.16 As we explain above, the meaning of
16In a footnote, the district court did state that “[a] Fifth Amendment
violation for a coercive interrogation was not clearly established where
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“use” was irrelevant from Jensen’s perspective, as his role in
the potential violation of Paul’s Fifth Amendment rights was
complete the moment he turned over the allegedly coerced
statements to prosecutors. We therefore reverse the district
court’s order granting summary judgment to defendants on
this claim, and remand to the district court for further pro-
ceedings consistent with this opinion.
III. REMAINING CLAIMS
The Stoots raised several additional claims in the district
court, none of which have merit.
A. SUBSTANTIVE DUE PROCESS
First, the Stoots argue that Jensen’s coercive interrogation
techniques violated Paul’s right to substantive due process
under the Fourteenth Amendment. As noted above, Chavez
specifically held that claims for coercive interrogation can be
brought under the Fourteenth Amendment. See 538 U.S. at
773 (plurality opinion of Thomas, J.); id. at 779 (Souter, J.);
id. at 787 (Stevens, J.); id. at 799 (Kennedy, J.). The standard
for showing a Fourteenth Amendment substantive due process
violation, however, is quite demanding. Chavez refers to “po-
lice torture or other abuse” as actionable under the Fourteenth
Amendment, 538 U.S. at 773, and Justice Kennedy’s opinion
Detective Jensen provided Paul II with a Miranda warning, and could rea-
sonably have believed that Paul II understood his rights.” It is not clear
whether the district court intended to pass on the merits of Paul’s Fifth
Amendment claim in this single sentence, as the district court did not pro-
vide any explanation for its conclusion that Jensen reasonably could have
believed that he had complied with Miranda and did not specifically
address the Stoots’ allegations to the contrary in their complaint. More-
over, the district court did not address the totality of Stoots’ Fifth Amend-
ment claim, as, apart from their Miranda claim, the Stoots also allege that
Jensen made improper promises to Paul and engaged in psychological
coercion.
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states that “a constitutional right is traduced the moment tor-
ture or its close equivalents are brought to bear.” Id. at 789.
Such language is consistent with the general rule that “only
the most egregious official conduct can be said to be ‘arbi-
trary in the constitutional sense’ ” and therefore a violation of
substantive due process. County of Sacramento v. Lewis, 523
U.S. 833, 846 (1998) (quoting Collins v. Harker Heights, 503
U.S. 115, 129 (1992)). More specifically, a Fourteenth
Amendment claim of this type is cognizable only if the
alleged abuse of power “shocks the conscience” and “violates
the decencies of civilized conduct.” Id. at 846 (internal quota-
tions omitted).
[19] Jensen’s interrogation techniques, even when con-
strued in the light most favorable to the Stoots, did not rise to
the level of a Fourteenth Amendment violation. The Stoots
allege that Jensen used “improper promises and threats . . . .
[that] clearly overcame whatever will this child could have in
denying these allegations.” They claim that because Paul was
“a developmentally delayed young boy, he could not fully and
accurately comprehend if these promises were reasonable, or
make an accurate assessment of the potential outcomes in the
same manner as an adult.” And they correctly note that under
this court’s precedent, psychological coercion is sufficient to
state a claim under the Fourteenth Amendment. See Cooper
v. Dupnik, 963 F.2d 1220, 1245 (9th Cir. 1992) (en banc).
While these allegations might be relevant to the question of
whether Paul’s confession was in fact voluntary and therefore
admissible, an issue the juvenile court resolved in Paul’s
favor, they fall below what is required to state a claim under
the Fourteenth Amendment. Noticeably lacking, for example,
is any allegation that Jensen “intended to injure [Paul] in
some way unjustifiable by any government interest,” as
required by precedent. Lewis, 523 U.S. at 849. Nor do the
cases cited by the Stoots support their position. Cooper, for
example, involved a calculated plan “to ignore the suspect’s
Constitutional right to remain silent as well as any request he
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might make to speak with an attorney . . ., to hold the suspect
incommunicado, and to pressure and interrogate him until he
confessed,” in full recognition that such actions were unlaw-
ful under Miranda and would render any confession inadmis-
sible at trial. 963 F.2d at 1224. This court described the
officers’ techniques as “sophisticated psychological torture”
designed to “extract a confession” after “hours of mistreat-
ment,” the “twentieth-century inquisitorial version of the Star
Chamber.” 963 F.2d at 1248.
As nothing in the Stoots’ complaint alleges conduct of a
similar nature, we affirm the district court’s grant of summary
judgment to defendants on the Stoots’ Fourteenth Amendment
claim.
B. MUNICIPAL LIABILITY
[20] The Stoots also assert a claim for municipal liability,
arguing that the City’s policies led to the violation of Paul’s
rights. But the Stoots have not shown that any constitutional
violation was caused by a policy or custom of the City of
Everett, as required to impose municipal liability. See Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978).
With regard to the Fourth Amendment claim, the Stoots
allege that the City routinely violated its own policy of requir-
ing all child victims under the age of ten to be interviewed by
a child victim specialist. The Stoots maintain that the official
policy demonstrates the City’s awareness of “the problem of
child suggestibility” in forensic interviews, and that its de
facto policy of ignoring these guidelines shows that the City
was deliberately indifferent to the risk of false allegations.
This argument is unpersuasive, for two reasons.
First, as discussed above, see supra note 9, we have previ-
ously held that an official’s mere “fail[ure] to adhere to estab-
lished guidelines and policies concerning the questioning of
child witnesses” does not give rise to an independent claim
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under § 1983. See Devereaux, 263 F.3d at 1076 (internal quo-
tations omitted). The fact that the city violated its own written
policy in this regard is thus irrelevant, as that policy did not
create any rights remediable under § 1983.
Second, as the district court noted, “there is no evidence
that Detective Jensen was unqualified to interview A.B.”
Rather, the record reflects that Jensen had 280 hours of train-
ing focused on child physical and sexual abuse, and 32 hours
on forensic child interviewing techniques. We therefore can-
not fault any city policy or practice that permitted Jensen to
interview A.B., as he appears well-qualified to have done so.
With regard to the Fifth Amendment claim, the Stoots
allege that the City failed to properly train or supervise Jensen
in conducting juvenile interrogations, and that the continued
use of the so-called “Reid technique” of blaming the victim
“amount[s] to a deliberate indifference to the need to protect
the most vulnerable members of society.” Again, however,
the Stoots have failed to identify any case law establishing
that a particular interview technique, applied to juveniles, vio-
lates their constitutional or statutory rights, nor have they
identified any incident other than Paul’s to corroborate their
claims of deliberate indifference.
In short, the Stoots have failed to provide any evidence that
the violation of Paul’s rights resulted from a policy or practice
of the City of Everett that repeatedly caused such violations.
We therefore affirm the district court’s grant of summary
judgment to defendants on this claim.
C. STATE LAW CLAIM FOR OUTRAGE
[21] Finally, the Stoots allege a state law claim for inten-
tional infliction of emotional distress or “outrage.” This state
law cause of action requires showing, inter alia, “extreme and
outrageous conduct” and “intentional or reckless infliction of
emotional distress,” see Grimsby v. Samson, 530 P.2d 291,
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295 (Wash. 1975), an exacting standard. “Liability exists only
where the conduct has been [s]o outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolera-
ble in a civilized community.” Id. (internal quotation omit-
ted). Applying this standard, the Stoots’ state law claim fails
for the same reasons outlined above with respect to substan-
tive due process. We therefore affirm the district court’s grant
of summary judgment to defendants on this claim as well.
CONCLUSION
We AFFIRM the district court’s grant of summary judg-
ment to defendants on all claims, except the Fifth Amendment
coerced confession claim. With regard to that claim, we
REVERSE the district court’s order granting summary judg-
ment to Jensen and remand for further proceedings. The par-
ties shall bear their own costs on appeal.
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