Chavez, Ben v. Martinez, Oliverio

Questions presented: (1) Was the 9th Circuit correct in characterizing the Supreme Court's 5th Amendment discussion in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), as non-binding dicta and ignoring its holding favorable to a civil rights defendant? (2) Does violation of the 5th Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding? (3) Was the 9th Circuit correct in holding that the conduct of the investigating officer in this case was so offensive as to deny him qualified immunity?

BY BRITTANY MOREHOUSE, MEDILL NEWS SERVICE

On Nov. 28, 1997, California field worker Oliverio Martinez was riding his bicycle home through a neighborhood in Oxford when two police officers investigating narcotics stopped him. The officers asked him to get off the bike and put his hands behind his head. They searched him and discovered a knife in his pocket. Martinez used the knife everyday at work to pick strawberries. Immediately after that, the officers attempted to handcuff him.

Although Officers Maria Pena and Andrew Salinas allege Martinez resisted arrest, Martinez claims he did not move until Salinas tackled him to the ground. The two men struggled and Salinas shouted that Martinez had grabbed his gun. Pena fired several shots at Martinez, who was struck in the face, vertebrae and legs. Martinez was instantly blinded and paralyzed.

A year later, Martinez, who now lives with his father and struggles to make ends meet, sued the officers. He claimed his constitutional rights were violated by the stop and use of deadly force. But the case was dismissed because of a legal battle over the audiotaped confession another officer obtained from Martinez while he was in the emergency room.

The confession was obtained by patrol supervisor Sgt. Ben Chavez, who arrived minutes after Martinez was shot. He rode in the ambulance with Martinez to get his side of the story. When they arrived at the hospital, both Chavez and Martinez thought Martinez would not survive. Chavez now says that was the reason he was so persistent in questioning Martinez. He wanted to get Martinezs version of the episode before he died.

Although the field worker repeatedly cried out that he was in pain and was dying, Chavez continued to ask Martinez in the emergency room what happened. Chavez did not read Martinez his Miranda rights and ignored the medical staffs and Martinezs pleading to leave him alone.

Chavez claims the interview lasted only 10 minutes, but in fact, that was only the tape-recorded part. Chavez would turn off the tape recorder every time hospital personnel requested him to leave the room. The interview actually lasted more than 45 minutes. Chavez recorded Martinez admitting that he grabbed Salinas gun. Since his recovery, Martinez has denied thats what happened, claiming instead that he reached for Salinas leg during the struggle.

When Martinezs case against Pena and Salinas first appeared before a settlement judge, the officers relied on the tape-recorded confession. Martinezs lawyer argued that it was a coerced statement. U.S. District Judge Florence-Marie Cooper granted Martinezs motion for summary judgment on the issue. In ruling against Chavez, she said he is not entitled to "qualified immunity [in a civil suit] for interviewing [Martinez] at the hospital." The ruling meant the case would go to trial.

Chavez appealed. In October, the San Francisco-based 9th Circuit Court of Appeals affirmed. In his opinion for a unanimous panel, Judge Richard Tallman cited a 1978 U.S. Supreme Court case, Mincey v. Arizona, in which an officers conduct during an interview with a suspect receiving medical treatment was found to be unconstitutional and the confession was inadmissible.

Tallman wrote: "To the extent Sgt. Chavez's conduct differs from that of the officers in Mincey, it is more egregious. In light of the extreme circumstances in this case, a reasonable police officer in Sgt. Chavez's position could not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments."

In a footnote, Tallman referred to another Supreme Court case which could be interpreted as supporting Chavezs immunity. The 9th Circuit recognized the Supreme Courts comment in 1990 in U.S. v. VerdugoUrquidez that a violation of the 5th Amendment is a "fundamental trial right of criminal defendants," and even though law officials may act in violation of that right at other times, it is only considered during a criminal and not a civil trial.

But the 9th Circuit found this to be non-binding dicta. "Where the two are at odds," wrote Tallman, "we are bound to follow our own binding precedent rather than Supreme Court dicta."

On June 3, 2002, the U.S. Supreme Court granted certiorari in the case. The Court was being asked to consider whether the 9th Circuit was wrong in interpreting the Supreme Courts reference to the 5th Amendment in Verdugo-Urquidez. In his petition, Chavez's lawyer, Alan E. Wisotsky, wrote that the appeals court ignored what should be considered a Supreme Court statement on an issue of law.

"The 9th Circuit is saying because it is dicta, it doesnt hold the same authority as its two holdings in other cases regarding the 5th Amendment," says Wisotsky. In short, the appeals court defiantly ruled contrary to the high courts findings.

Martinezs lawyer, R. Samuel Paz, says if that is true, "it is a very devastating blow to the 5th Amendment." For example, he says, a previous 9th Circuit ruling on the 5th Amendment involved a series of incidents where the police purposely did not read people their Miranda rights because they knew they were protected from civil lawsuits. If the 5th Amendment only becomes an issue in criminal cases, officers are granted immunity as long as they dont charge the people they question, Paz explains.

The Supreme Court was also being asked to consider whether Chavez is entitled to immunity. Wisotsky says that even if Chavez was violating Martinezs 5th Amendment rights, the law wasnt clearly established enough for him to know that. According to Wisotsky, Chavez thought he was doing the right thing at the time. "He thought he was right to do this in the presence of all these doctors and nurses," Wisotsky says, "and to tape record it."

But Paz disagreed.

"If the Supreme Court finds the law wasnt sufficiently well developed, conceptually its one free bite at the apple for Chavez," he says.

On May 27, 2003, a divided Court reversed, holding for Chavez that the officer did not deprive Martinez of his 5th Amendment protection against self-incrimination because compulsive questioning alone does not violate the Constitution without a criminal case resulting from the interaction.

After that, the Court's direction was less clear. In all, six justices wrote opinions.

Justice Clarence Thomas, who wrote the lead opinion for himself, Justices Sandra Day O'Connor and Antonin Scalia and Chief Justice William Rehnquist, noted that Martinez was never made to be a "witness" against himself because his statements were never admitted as testimony against him in a criminal case.

In explaining orally how the justices divided on the case, Thomas quipped: "So you can see I'm a consensus builder."

Justice David Souter wrote a concurrence for himself and Justice Stephen Breyer for the proposition that they agreed that Martinez couldn't make the "powerful showing" necessary to expand protection of the privilege against self-incrimination to the point of the civil liability he requested. With those two votes, a majority of six found against Martinez on his claim under the sel-incrimination clause.

Justices John Paul Stevens, Anthony Kennedy and Ruth Bader Ginsburg wrote separately to concur in part and dissent in part.

Justice Stevens wanted to make the point that the interrogation of Martinez "was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods," and therefore that Chavez was not entitled to qualified immunity as a matter of law because that type of brutal police conduct constituted an immediate deprivation of the prisoners constitutionally protected interest in liberty.

Justice Kennedy took issue with the majority's conclusion that a violation of the self-incrimination clause does not arise until a privileged statement is introduced at some later criminal proceeding. "A constitutional right is traduced the moment torture or its close equivalents are brought to bear," Kennedy wrote.

Justice Ginsburg indicated she was writing separately to underscore that Martinez's interrogation remained a "clear instance of the kind of compulsion no reasonable officer would have thought constitutionally permissible."

Those three justices, along with Justices David Souter and Stephen Breyer, argued that the due process clause requires a different analysis than the self-incrimination clause because it need not be tied to the existence of a later criminal proceeding. In remanding that part of the case, there was a majority of five keeping a door open for recovery by Martinez.