Supreme

Supreme Court, U.S.FILED

~o. 10-.~ 20 ~1..6 ZOtO

OFFICE OF THE CLERKIN THE

Court of the United States

LAWRENCE N. BLUM, PH.D., Petitioner

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MICHAEL CROWE, STEPHEN CROWE, CHERYL A. CROWE,JUDITH ANN KENNEDY, SHANNON CROWE, AARON

HOUSER, MARGARET SUSAN HOUSER, CHRISTINE HUFF,AND GREGG HOUSER, Respondents

On Petition For Writ Of CertiorariTo The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DAN L. LONGO, ESQ.KENNETH H. MORENO, ESQ.SCOTT J. LOEDING, ESQ.MURCHISON & CUMMING, LLP750 "B" STREET, SUITE 2550SAN DIEGO, CA 92101(619) 544-6838

dlongo@murchisonlaw.com

Blank Page

Questions Presented For Review

1. Whether a private psychologist requestedby the police to consult on a single interrogation of acriminal suspect in a murder investigation is entitledto assert qualified immunity pursuant to Richardsonv. McKnight 521 U.S. 399 (1997).

2. Whether the holding and standards setforth for application of qualified immunity to privateparties in Richardson v. McKnight 521 U.S. 399(1997) should be clarified or re’examined due to theCircuit Courts’ disinclination to extend qualifiedimmunity to private individuals and the NinthCircuit’s blanket refusal to extend qualifiedimmunity to private individuals.

3. Whether the tactics and lines of questioningemployed during Plaintiffs’ interrogations violatedthe Fourteenth Amendment shocks the consciencestandard under prior precedent and this Court’sdecision in Chavez v. Martinez 538 U.S. 760 (2003).

4. Whether the law was clearly establishedthat the tactics and lines of questioning employedduring Plaintiffs’ interrogations were a violation ofthe Fourteenth Amendment where the presidingFederal District Court, subsequent Ninth Circuit caselaw, and this Court in Chavez v. Martinez haveindicated that such tactics and lines of questioningare not a violation of the Fourteenth Amendment.

List of PartiesWhose Judgment is Sought to be Reviewed

Lawrence N. Blum, Ph.D. seeks review of theNinth Circuit Court of Appeals’ reversal of theDistrict Court’s grant of summary judgment inLawrence N. Blum, Ph.D.’s favor and againstPlaintiffs Michael Crowe, Stephen Crowe, Cheryl A.Crowe, Judith Ann Kennedy, Shannon Crowe, AaronHouser, Margaret Susan Houser, Christine Huff, andGregg Houser.

Lawrence N. Blum, Ph.D. also joins in thePetitions filed by the Escondido and Oceansideparties seeking review of the Ninth Circuit Court ofAppeals decision.

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TABLE OF CONTENTS

Pa~e

STATEMENT OF THE CASE .................................1

I. INTRODUCTION ..........................................1

II. STATEMENT OF FACTS .............................2

III. THE LOWER COURT DECISIONS .............5

A. The District Court DecisionGranting Summary Judgmentto Dr. Blum .........................................5

B. The Ninth Circuit Reversal ofSummary Judgment on theConspiracy Claim ..............................12

LEGAL ARGUMENT .............................................14

IV. APPLICATION OF QUALIFIEDIMMUNITY TO § 1983 LAWSUITS ..........14

V. RICHARDSON V. MCKNIGHT ................. 15

A. The Richardson MajorityOpinion ..............................................16

B. The Richardson MajorityCaveats ..............................................18

C. The Richardson Dissent ...................19

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VI. CIRCUIT COURTS’ DENIAL OFQUALIFIED IMMUNITY AFTERRICHARDSON ............................................21

VII. APPLICATION OF RICHARDSONTO DR. BLUM .............................................25

to Dr. Blum is Entitled to AssertQualified Immunity Under theRichardson Caveat ............................25

Bo The Richardson MajorityCriteria for Extending QualifiedImmunity to PrivateIndividuals Should Be Re"Examined ..........................................28

VIII. PLAINTIFFS’ FOURTEENTHAMENDMENT RIGHTS WERE NOTVIOLATED AND THE LAW WASNOT CLEARLY ESTABLISHEDTHAT THE SUBJECTINTERROGATIONS VIOLATED THEFOURTEENTH AMENDMENT .................33

no Plaintiffs’ FourteenthAmendment Rights Were NotViolated .............................................34

The Law Was Not ClearlyEstablished That the "Tacticsand Lines of Questioning" in theInterrogation Violated theFourteenth Amendment ...................36

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IX. CONCLUSION ............................................42

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TABLE OF AUTHORITIES

CASES

Bartell v. Lohiser215 F.3d 550, 556-557 (6th Cir. 2000) .........25

Beecher v. Alabama389 U.S., 36 (1967) ......................................35

Burke v. Town of Walpole405 F.3d 66 (1st Cir. 2005) ........................... 23

Camilo-Robles v. Ho¥os151 F.3d 1 (1st Cir. 1998) .............................23

Chavez v. Martinez538 U.S. 760, 766, 773 (2003) .............Passim

Clement v. City of Glendale518 F.3d 1090, 1096-1097 (9th Cir.2008) .............................................................24

Clewis v. Texas386 U.S. 707 (1967) .....................................35

Cooper v. Parrish203 F.3d 937 (6th Cir. 2000) ........................ 21

County of Sacramento v. Lewis523 U.S. 833 (1998) .....................................34

Darwin v. Connecticut,391 U.S. 346 (1968) .....................................35

Delia v. City of Rialto 2010 U.S.App. LEXIS18836 (9th Cir. 2010) ....................................24

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Franklin v. Fox312 F.3d 423, 440 (9th Cir. 2002) ............. 6, 24

Gonzales v. Spencer336 F.3d 832, 835 (9th Cir. 2003) ................. 24

Harrison v. Ash Co.539 F.3d 510, 521-525 (6th Cir. 2008) ......... 21

Hinson v. Edmond192 F.3d 1342 (11th Cir. 1999) .................... 22

Jensen v. Lane County222 F.3d 570 (9th Cir. 2000) .................. 23, 39

Malinowski v. DeLuca177 F.3d 623 (7th Cir. 1999) ........................ 22

Pearson v. Callahan129 S.Ct. 808 (2009) ............................Passim

Reck v. Pate367 U.S. 433, 439 " 440 (1961) ...................35

Richardson v. McKnight521 U.S. 399 (1997) .............................Passim

Rosewood Services v. Sunflower DiversifiedServices413 F.3d 1163 (10th Cir. 2005) .................... 22

Sain v. Wood512 F.3d 886, 892 ..................................22, 23

Sherman v. Four County Counseling Ctr.987 F.2d 397, 405406 (7th Cir. 1993) ........22

Stoot v. City of Everett582 F.3d 910 (9th Cir. 2009) ......37, 38, 39, 40

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Toussie v. David Park Estates, Inc.323 F.3d 178 (2nd Cir. 2003) ........................ 22

Warner v. Grand County57 F.3d 962 (10th Cir. 1995) .......................22

Williams v. O’Lear_v55 F.3d 320, 324 (7th Cir. 1995) .................22

Wyatt v. Cole504 U.S. 158 (1992) .........................14, 16, 29

STATUTES

42 U.S.C. § 1983 .............................................Passim

TREATISES

123 Harvard Law Review ..........................28, 29, 31

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Citations of Opinions and OrdersEntered in the Case

Crowe v. County of San Diego 608 F.3d 406 (9thCir. 2010). Filed January 14, 2010; amendedJanuary 27, 2010; second amendment June 18, 2010.

Crowe v. County of San Diego 359 F.Supp.2d994 (S.D. Cal. 2005). Decided February 28, 2005.

Crowe v. County of San Diego 303 F.Supp.2d1050 (S.D. Cal. 2004). Decided February 17, 2004.

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Basis for Jurisdiction

The Ninth Circuit Court of Appeals decisionwas filed January 14, 2010 and amended January 27,2010. The Second Amendment was filed on June 18,2010. The Ninth Circuit denied the Petition forRehearing on June 18, 2010.

28 U.S.C. § 1291 confers jurisdiction on thisCourt to review the Ninth Circuit’s reversal of theDistrict Court’s grant of summary judgment in thismatter. The basis for federal jurisdiction in theDistrict Court was asserted under 28 U.S.C. § 1331,28 U.S.C. § 1343, and 28 U.S.C. § 1367.

STATEMENT OF THE CASE

INTRODUCTION

Lawrence N. Blum, Ph.D. is a privatepsychologist who consulted with the Escondido PoliceDepartment on a single case involving theinterrogation of Michael Crowe whom the Policesuspected brutally murdered his 12-year’old sister,Stephanie Crowe, in their home on the evening ofJanuary 20, 1998. Michael Crowe and two of hisfriends who were also accused of Stephanie’s murder,and their respective family members, brought claimsunder 42 U.S.C. § 1983 against Dr. Blum arising outof the limited consultation he had with the EscondidoPolice regarding a single interrogation of MichaelCrowe.

In reversing Dr. Blum’s successful Motion forSummary Judgment on all of Plaintiffs’ § 1983claims, the Ninth Circuit Court of Appeals did notapply the doctrine of qualified immunity to Dr. Blumas a private individual. The case against Dr. Blumdirectly implicates this Court’s decision inRichardson v. McKnight 521 U.S. 399 (1997)addressing the availability of qualified immunity forprivate individuals in § 1983 lawsuits. In particular,Dr. Blum’s involvement in the Escondido Police’smurder investigation fell squarely within theRichardson majority’s caveat of"a private individualbriefly associated with a government body, servingas an adjunct to government in an essentialgovernmental activity, or acting under close officialsupervision." Richardson, supra at p. 413. Moreover,

a review of federal circuit law decided afterRichardson, especially from the Ninth Circuit,reveals that in virtually every case the Courts haveheld that qualified immunity is not available to aprivate individual which calls into question thepractical feasibility of applying the majority’shistorical/policy approach as opposed to thefunctional approach advocated by the four dissentingJustices in Richardson.

This Court should grant review to determineimportant constitutional questions still unansweredby the Richardson decision, to clarify the scope of thecaveats set forth by the majority Opinion, and toexamine whether the current standard providessufficient certainty for lower courts and just resultsfor private individuals assisting police in criminalinvestigations.

II.STATEMENT OF FACTS

Lawrence N. Blum, Ph.D. is a clinicalpsychologist licensed by the State of California whomaintains a private psychology practice in the LosAngeles area. Dr. Blum’s practice consists of treatingand counseling law enforcement officers who sufferfrom stress and trauma associated with the officers’work environment and experiences. Dr. Blum is notan interrogation specialist and prior to the StephanieCrowe murder investigation had never consultedwith any law enforcement agency regarding theinterrogation of a criminal suspect. [App. 346]

On January 23, 1998, Dr. Blum was contactedby Sergeant Phillip Anderson of the Escondido PoliceDepartment about an interview they were going toconduct with Michael Crow whom they suspected ofmurdering his 12-year-old sister Stephanie. Dr.Blum met with Sgt. Anderson, Detective RalphClaytor, and Detective Mark Wrisley at theEscondido Police Department. The officers showedDr. Blum a videotaped portion of the previousinterrogation of Michael Crowe and provided Dr.Blum with background information regardingMichael Crowe and his relationship with his family.Based upon that information, Dr. Blum commentedto the police that Michael Crowe was probablysomewhat alienated from peer group relationshipswith his family, that he appeared to be more involvedin fantasy video games as opposed to family activity,that he likely withdrew to fantasy games as a comfortof some kind, and that his persistent drop in gradescould be a sign of some psychological or emotionalcrises. [App. 17, 332]

Dr. Blum provided the detectives with thisanalysis of Michael Crowe’s personality or characteras opposed to specific interview techniques anddiscussed broad’brushed themes of which the officersalready had an understanding. Dr. Blum suggestedthat the detectives address Michael Crowe in terms ofanalogies he would understand and that it was up tothe detectives’ independent judgment as to how toutilize that advice during the interrogation. One ofthe detectives has referred to the foregoingconsultation with Dr. Blum prior to the interrogationas the development of a "tactical plan." [App. 17,332]

Dr. Blum observed a portion of the January 23,1998 interrogation of Michael Crowe conducted byDetectives Claytor and Wrisley. Dr. Blum did notinterrogate Michael Crowe at any point in time. Dr.Blum did not direct or advise the police as to thelength or timing of the interview with Michael Crowe,the manner in which Michael Crowe should betreated during the interview, or any questions whichthe detectives should ask Michael Crowe. Dr. Blumdid not direct or advise the detectives that theyshould confront Michael Crowe with forensic evidenceof his guilt, that they should threaten him in anymanner, that they should promise him any leniency,or that they should lie to or deceive him. DetectivesClaytor and Wrisley testified that the January 23,1998 interrogation of Michael Crowe was based upontheir own independent judgment and was not underthe direction and control of Dr. Blum. [App. 284, 297]

Dr. Blum did not consult or participate in anymanner in any other interrogations conducted by theEscondido Police Detectives, including the three preJanuary 23 interrogations of Michael Crowe, the 1½"hour and 9½hour interrogations of Aaron Houser, 1 orthe 13½-hour and 12-hour interrogations of JoshuaTreadway.

Michael Crowe, Aaron Houser and their familymembers have alleged a variety of claims against Dr.Blum under 42 U.S.C. § 1983. Dr. Blum assertedthat he is entitled to qualified immunity on Plaintiffs’

~ Although Dr. Blum had nothing to do with AaronHouser’s interrogations, the arguments raised in this Petitionare fully applicable to Houser’s interrogations and claimsagainst Dr. Blum.

§ 1983 claims before both the District Court and theNinth Circuit. Neither Court applied qualifiedimmunity to the claims asserted against Dr. Blum.

III.THE LOWER COURT DECISIONS

The District Court granted summary judgmentin favor of Dr. Blum on all claims made by Plaintiffs.The Ninth Circuit Court of Appeals reversed theDistrict Court on Plaintiffs’ conspiracy claims only.

no The District Court DecisionGrantingSummary Judgment to Dr. Blum

The District Court, Honorable John S. Rhodes,granted summary judgment to Dr. Blum on each andevery claim alleged by Plaintiffs. [App. 354]

With respect to the Fourth Amendment § 1983claims raised by Plaintiffs, the District Court notedthat it was undisputed that Dr. Blum did notphysically participate in the arrests of the boys or thesearches of their residences. [App. 213] The DistrictCourt further determined that under Ninth Circuitlaw, in any § 1983 action against a private individualthe plaintiff must establish that the privateindividual was a proximate cause of theConstitutional violation. [App. 214] The DistrictCourt held:

"Here, there is absolutely no evidencethat defendant Blum had any controlover the other defendants’ decision toconduct the challenged searches and

arrests. Accordingly, as a matter oflaw, defendant Blum did notproximately cause any FourthAmendment violation and thus isentitled to summary judgment withrespect to the Fourth Amendmentclaims of all three boys." [App. 214-215]

As to Plaintiffs’ Fifth Amendment claimsarising out of the alleged coercive interrogations, theDistrict Court again determined that there was noevidence that Dr. Blum was the cause of any FifthAmendment violation. The District Court held:

"As for defendant Blum, as noted insection I.A. supra, defendant Blum, as aprivate actor, is not the proximate causeof a constitutional violation committedby a state actor unless he ’had somecontrol over’ the state actors’ decision tocommit the unconstitutional act. SeeFr~nk]in, 312 F.3d at 446. There is noevidence in the record suggesting thatdefendant Blum had such control overthe police officer defendants." [App.284]

With respect to Plaintiffs’ FourteenthAmendment claims, the District Court held that theevidence was insufficient to meet the rigorous shocksthe conscience standard necessary for a violation ofthe Fourteenth Amendment. In its detailed decisionthe District Court held:

"Having viewed the videotapedinterviews and interrogations of JoshuaTreadway and Aaron Houser in theirentirety,2 and having also reviewed thetranscripts thereof, the court concludesthat defendants’ behavior during theinterviews and interrogations, althoughnot commendable, was not ’so egregious,so outrageous that it may fairly be saidto shock the contemporary conscience.’[citation omitted] While it cannot beforgotten that the boys were juveniles atthe time of the interrogations, andwhile some of the interrogations werelong, the manner of interrogations wasneither egregious, outrageous, norshocking. This is not a case of physicalor psychological torture. Defendantsnever yelled at the boys or even raisedtheir voice. The boys were given foodand water and bathroom breaks, even ifnot always immediately. Although thepolice may lied at times, such conduct isnot outrageous and, in fact, does noteven necessarily amount to coerciveconduct. [citation omitted] Similarly, itis not outrageous that defendantsattempted to extract confessions fromthe boys by telling them that they could

2 The District Court reviewed the videotapes of theentire interrogations in open court with an invitation to allcounsel that they may be present.

get treatment rather than jail if theyconfessed given that the Ninth Circuitrecently found that similar statementsdo not even rise to the level of beingcoercive. [citation omitted] Moreover,although the boys became emotional attimes during the questioning, the use ofquestions that elicit an emotionalresponse does not transform theinterrogation into one that ’shocks theconscience.’ [citation omitted] Finally,although defendants employed a ’goodcop/bad cop’ approach during some ofthe interviews, such a manner ofinterrogation is relatively common andcertainly not shocking, even whenjuveniles are involved." [App. 291-293]

In addition, the District Court determined thatat least as to the police officers, qualified immunitywould entitle them to summary judgment onPlaintiffs’ Fourteenth Amendment claims.

"Moreover, even if it were determinedthat defendants’ conduct did violate theboys’ Fourteenth Amendmentsubstantive due process rights, areasonable officer would not haveknown that the interrogation of theboys amounted to a violation of theirFourteenth Amendment rights ofsubstantive due process given that theinterrogations lacked the brutality thathas previously marked the police

conduct found by the courts to be’shocking to the conscience."’ [App. 295"296]

With respect to Michael Crowe’s FourteenthAmendment claim, the Court determined that therewas no concrete evidence that Dr. Blum engaged inany conspiracy to violate Michael Crowe’s rights to befree from government conduct that shocks theconscience and furthermore that Dr. Blum did notengage in any behavior that shocked the conscience.In particular, the District Court found:

"The Crowe plaintiffs’ claims againstdefendants Blum and McDonoughappear to be predicated upon theconduct of Michael’s interrogation. Areview of the record reveals no concreteevidence of a conspiracy encompassingthe violation of Michael Crowe’s Fourth[sic] [Fourteenth] Amendment right tobe free of government conduct that’shocks the conscience’ of which thesedefendants were a part.

Moreover, neither defendant himselfdirectly engaged in conduct that ’shocksthe conscience.’ The purpose of aninterrogation is procure a confession.Therefore, it does not ’shock theconscience’ that defendant Blumprovided the police with adviceregarding how to best procure aconfession from Michael Crowe based on

Michael’s psychological makeup wherethere is no evidence that defendantBlum advised using the type of ’brutal’techniques that have been held toviolate the Fourteenth Amendmentsubstantive due process clause ....Because defendant Blum andMcDonough did not engage in behaviorthat ’shocks the conscience’ so as tosupport a claim for violation of theFourteenth Amendment substantivedue process clause, these defendants areentitled to summary judgment." [App.297]

With respect to Aaron Houser’s defamationclaims against Dr. Blum arising from his commentsto the police, the District Court granted summaryjudgment in favor of Dr. Blum on First Amendmentgrounds. [App. 333-336]

Finally, the District Court addressed Plaintiffs’claims that Dr. Blum engaged in a conspiracy toviolate Plaintiffs’ civil rights, holding that there wasno evidence that Dr. Blum was involved in such aconspiracy. The District Court held:

"As noted in section I.A., supra,plaintiffs allege that there was a’common objective to convict andincarcerate the boys’ and that defendantBlum was a part of this ’scheme toblame and punish the boys’ forStephanie’s murder. [citation omitted]According to plaintiffs, the objective of

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the conspiracy was to be accomplishedby means of illegal interrogations,arrests, searches, and seizures.

Here, although defendant Blumparticipated in the interrogation of theboys, there is absolutely no evidencethat he was even aware of the allegedconspiracy or its objectives, let alonethat he was a part of this conspiracy .....

First, defendant Blum did not have aprior relationship with the otherdefendants from which one could inferthat he was a participant in the allegedconspiracy to wrongfully arrest the boysor that he would have any interest inparticipating in a conspiracy which,plaintiffs contend, was directed atprotecting Officer Walters and theEscondido Police Department fromcriticism ....

Finally, it should be emphasized thateven if by giving the advice he gave,defendant Blum violated the boys’ FifthAmendment rights (which the court hasconcluded he did not), to be held liablefor false arrest/false imprisonment, theevidence must disclose not only thatdefendant Blum’s actions were illegalbut that his conduct was ’in furtheranceof a common agreement orunderstanding to achieve the unlawful

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purpose of the Escondido defendants.[citation omitted] As stated, there issimply no evidence that defendantBlum’s participation in theinterrogation of Michael Crowe,whether constitutional or not, was infurtherance of a common agreement orunderstanding to achieve the allegedunlawful purpose of the Escondidodefendants in pursuing the arrests andprosecution of the boys.

Because no reasonable factfinder couldfind that defendant Blum was aparticipant in the alleged conspiracy,defendant Blum is entitled to summaryjudgment with respect to the boys’ falsearrest/false imprisonment claim." [App.345"347]

The District Court granted Dr. Blum’s Motionfor Summary Judgment as to all claims by Plaintiffs.[App. 354]

B. The Ninth Circuit Reversal of SummaryJudgment on the Conspiracy Claim

The Ninth Circuit Court of Appeals reversedthe District Court’s grant of summary judgment toDr. Blum on Plaintiffs’ conspiracy claim alone. Incontrast to the District Court’s extraordinarilydetailed and thorough evaluation of Dr. Blum’sconduct and involvement with the Escondido PoliceDepartment’s investigation of Stephanie Crowe’s

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murder, the Ninth Circuit dedicated a singleparagraph to Dr. Blum’s involvement in this matter.The Ninth Circuit stated:

"The record shows that the quality ofBlum’s involvement in theinterrogations is not categoricallyinconsistent with a tacit ’meeting of theminds.’ According to one of thedetectives, Blum helped the policeformulate a ’tactical plan’ to approachthe interview. Moreover, the detectives’pretty much’ followed his advice afterthese consultations. Insofar as thesetactics and lines of questioning by thedetectives shock the conscience, asdemonstrated above, summaryjudgment in favor of Blum isunwarranted. A meeting of the mindscan be inferred from circumstantialevidence, and Blum’s involvement inthe interrogations, particularly informulating and directing the tacticalplan, is sufficient for a reasonablefactfinder to conclude that it was’unlikely to have been undertakenwithout an agreement,’ of some kindbetween the defendants. [citationomitted] We therefore reverse thedistrict court’s grant of summaryjudgment on this point." [App. 67-68]

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LEGAL ARGUMENT

APPLICATION OF QUALIFIED IMMUNITYTO § 1983 LAWSUITS

A public law enforcement officer is entitled toassert qualified immunity as to § 1983 claimsalleging constitutional violations arising out of aninterrogation of a criminal suspect as well asconspiracies to violate constitutional rights. Chavezv. Martinez 538 U.S. 760, 766, 773 (2003); Wyatt v.Cole 504 U.S. 158 (1992). The doctrine of qualifiedimmunity presents significant substantive andprocedural protections against § 1983 lawsuits.

In Pearson v. Callahan 129 S.Ct. 808 (2009)this Court recently enunciated the important policiesunderlying the application of qualified immunity to §1983 claims:

"The doctrine of qualified immunityprotects government officials ’fromliability for civil damages insofar astheir conduct does not violate clearly-established statutory constitutionalrights of which a reasonable personwould have known.’ [citation omitted]... The protection of qualified immunityapplies regardless of whether thegovernment officials’ error is ’a mistakeof law, a mistake of fact, or mistakebased on mixed questions of law andfact.’ [citation omitted]

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Because qualified immunity is animmunity from suit rather than a meredefense to liability.., it is effectively lostif a case is erroneously permitted to goto trial. [citation omitted] ...Accordingly, ’we repeatedly havestressed the importance of resolvingimmunity questions at the earliestpossible stage in litigation.’ [citationomitted] Pearson, supra, 129 S.Ct. at p.815.

While the legal significance of qualifiedimmunity for public officials is unquestioned, theapplication of qualified immunity to private parties isfar from settled.

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RICHARDSON V. MCKNIGHT

In Richardson v. McKnight (1997) 521 U.S.399, supra, two prison guards who were employed bya private company which operated a Tennesseeprison were sued by a prisoner under 42 UoS.C. §1983 for allegedly injuring the prisoner through theuse of extremely tight physical restraints. Theprivate guards asserted a qualified immunity from §1983 lawsuits. After the District Court and SixthCircuit denied the guards’ assertion of qualifiedimmunity, this Court granted certiorari.

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A. The Richardson Majority Opinion

In the Court’s 5-4 decision, the majorityopinion in Richardson determined that under thenarrow facts and circumstances involving a privatecompany managing a prison, the private prisonguards were not entitled to assert qualified immunityfrom suit under § 1983. Richardson, supra at pp.401,413. In reaching this conclusion, the Richardsonmajority analyzed the Court’s decision in Wyatt v.Cole 504 U.S. 158 (1992) which held that a privateindividual accused of conspiring with governmentemployees was not entitled to assert qualifiedimmunity on the "narrow" circumstance where theprivate individual was "invoking the state replevin,garnishment or attachment statute." Wyatt, supra atpp. 168-169; Richardson, supra at p. 404. Inanalyzing the Wyatt decision, the Richardsonmajority determined that there were two factorswhich must be analyzed in order to determinewhether qualified immunity applied to the privateprison guards in the § 1983 action before it: anyhistory of providing immunity to prison guards andthe policy concerns or purposes underlying immunitywhich would warrant applying it to the prison guardsin the § 1983 action before it.

The Richardson majority concluded thathistory; did not reveal a "firmly’rooted" tradition ofimmunity applicable to privately employed prisonguards. Richardson, supra at p. 404. The majoritydetermined that private contractors were heavilyinvolved in prison management activities as far backas the 19th century and there was no conclusiveevidence of a historical tradition of immunity for

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private parties carrying out these functions.Richardson, supra at pp. 405-407. History, therefore,did not provide any significant support for theimmunity claim of the private prison guards.Richardson, supra at 407.

The majority in Richardson determined that itwas a closer question as to whether the purposesunderlying qualified immunity warranted itsapplication to the prison guards. Richardson, supraat pp. 407-408. The Court recognized that one of theprimary purposes of the immunity doctrine is toprotect public officials, as well as society, fromunwarranted timidity by public officials who may bedeterred from exercising their authority through thethreat of lawsuits. Richardson, supra at pp. 407"408.The majority opinion rejected the prison guards’argument that since they perform the same work asstate prison guards, qualified immunity must beapplied to a similar degree. The majority held thatthe mere performance of a government functionshould not make the difference between unlimited §1983 liability and qualified immunity especially for aprivate person who performs a job withoutgovernment supervision or direction. Richardson,supra at p. 409. The majority also noted thatmarketplace pressures were different for a privatecompany versus a government employer and thusthere was less concern with unwarranted timidity.Richardson, supra at p. 409-410. The majorityindicated that private employees may not be deterredby the threat of damages due in part to theavailability of the comprehensive insurancerequirements for private companies as well as theability to offer higher pay or extra benefits

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unavailable to civil service employers. Richardson,supra at p. 412-413. Finally, the majority noted thatthe risk of distraction from lawsuits alone is not asufficient ground for immunity. Richardson, supra atp. 412.

The majority concluded that private prisonguards, unlike those who work directly for thegovernment, do not enjoy immunity from suit in a §1983 case. Richardson, supra at p. 412.

B. The Richardson Majority Caveats

The majority opinion in Richardson carefullyset forth three caveats to their holding that qualifiedimmunity did not apply to the private prison guardsfor § 1983 liability under the particularcircumstances of the case. First, the Court was notdeciding whether the defendants were liable under §1983 or whether they acted under color of state law.Richardson, supra at. po 413. The second caveat,which has significant applicability to Dr. Blum’s case,was stated by the majority as follows:

"Second, we have answered theimmunity question narrowly, in thecontext in which it arose. That contextis one in which a private firm,systematically organized to assume amajor lengthy administrative task(managing an institution) with limiteddirect supervision by the government,undertakes that task for profit andpotentially in competition with otherfirms. The case does not involve a

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private individual briefly associatedwith a governmental body, serving asan adjunct to government in anessential governmental activity, oracting under close official supervision."Richardson, supra at p. 413.

The third caveat set forth by the majority wasthe potential applicability of a "good faith" defensewhich the Richardson majority declined to decide inthat case. Richardson, supra at p. 413.

C. The Richardson Dissent

Four Justices dissented from the majorityopinion in Richardson. The dissent authored byJustice Scalia and joined by Chief Justice Rehnquist,Justice Kennedy, and Justice Thomas, argued that afunctional approach should be applied to determinewhether qualified immunity should be extended toprivate individuals. Richardson, supra at pp. 414416. The dissent contended that the historicalunderpinnings underlying immunity established thatprivate parties who were performing governmentalfunctions which give rise to qualified immunityshould also be entitled to assert qualified immunity.Richardson, supra at pp. 414"416.

The dissent questioned the holding thatqualified immunity should be "unavailable toemployees of private prison management firms, whoperform the same duties as state-employedcorrectional officials, who exercise the most palpableform of state police power, and who may be sued foracting ’under color of state law.’" Richardson, supra

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at p. 414. The dissent argued that the majority’shistorical approach was flawed and that the lack ofcase law supporting qualified immunity for privateprison employees should not be disqualifying.Richardson., supra at pp. 414"416. Instead, thedissent relied upon prior Supreme Court precedentwhich held that immunity analysis rests onfunctional categories, not on the status of thedefendant. Richardson, supra at p. 416-417. Thedissent recognized that private individuals haveregularly been accorded immunity when they performa governmental function that qualifies. Richardson,supra at pp. 417-418.

The dissent suggested that the history of thefunctional approach should govern whether qualifiedimmunity is extended to a private individual and thatit should not be dependent upon policy reasons.Richardson, supra at p. 418. The dissent nonethelessanalyzed the majority’s policy reasons and concludedthat the market pressures and insurance analysisemployed by the majority was incorrect. Richardson,supra at pp. 419-420.

The dissent concluded that:

"[S]ince there is no apparent reason,neither in history nor in policy, formaking immunity hinge upon thecourt’s distinction between public andprivate guards, the precise nature ofthat distinction must also remainobscure ....

Today’s decision says that two sets ofprison guards who are indistinguishable

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in the ultimate source of their authorityover prisoners, indistinguishable in thepowers that they possess over prisoners,and indistinguishable in the duties thatthey owed toward prisoners, are to betreated quite differently in the matter oftheir financial liability ..... Neither ourprecedent, nor the historicalfoundations of section 1983, nor thepolicies underlying section 1983,support this result." Richardson, supraat pp. 422-423.

CIRCUIT COURTS’ DENIAL OFQUALIFIED IMMUNITY AFTER RICHARDSON

Since Richardson was decided nearly everyCircuit Court which has considered whether qualifiedimmunity is available to a private in~lividual in a §1983 action has denied the private party’s assertionof qualified immunity.

The Sixth Circuit in Harrison v. Ash Co. 539F.3d 510, 521-525 (6th Cir. 2008) applied the analysisemployed in Richardson to hold that nurses whoworked for a private company that provided medicalservices to a county jail were not entitled to assertqualified immunity on a § 1983 claim for failure toprovide medical care to prisoner. In Cooper v.Parrish 203 F.3d 937 (6th Cir. 2000) the Sixth Circuitalso held that a private attorney who workedalongside prosecutors in an unofficial capacity inpursuing legal action against plaintiffs nightclubswas not entitled to qualified immunity under

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Richardson for plaintiffs § 1983 claims.The Eleventh Circuit has also held that under

Richardson., a private prison physician could notclaim qualified immunity for failing to provideprompt medical treatment to a prisoner. Hinson v.Edmond 192 F.3d 1342 (11th Cir. 1999). In RosewoodServices v. Sunflower Diversified Services 413 F.3d1163 (10th Cir. 2005), the Tenth Circuit held that aprivate non-profit corporation which received anddistributed state and federal funds to communityservices providers to assist developmentally-disabledresidents was not entitled to assert qualifiedimmunity pursuant to Richardson.3

A Republican Party Chairman was held not tobe entitled to qualified immunity for conspiring withstate officials to unlawfully prevent a builder fromconstructing a single-family home on property heowned pursuant to the Second Circuit ruling inToussie v. David Park Estates, Inc. 323 F.3d 178 (2nd

Cir. 2003). In Malinowski v. DeLuca 177 F.3d 623(7th Cir. 1999), the Seventh Circuit held that qualifiedimmunity was not available under Richardson toprivate building inspectors on § 1983 claims.4

3 Prior to Richardson. the Tenth Circuit had held thatprivate individuals who performed strip search of plaintiff atrequest of police were entitled to qualified immunity onplaintiffs § 1983 claims). See Warner v. Grand County 57 F.3d962 (10th Cir. 1995).

4 In Sain v. Wood 512 F.3d 886, 892, the SeventhCircuit recognized that prior to Richardson, it had grantedqualified immunity to privately employed prison psychologistsbecause they were performing a government function, Williamsv. O’Lear¥ 55 F.3d 320, 324 (7th Cir. 1995); Sherman v. FourCounty Counseling Ctr. 987 F.2d 397, 405"406 (7th Cir. 1993)(footnote continued)

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The only Circuit which appears to haveextended qualified immunity to private individuals isthe First Circuit. In Burke v. Town of Walpole 405F.3d 66 (1st Cir. 2005) a private forensic odontologistwho was acting as a consultant with the DistrictAttorney’s office in a criminal investigation was heldto be entitled to qualified immunity. In Camilo-Robles v. Ho¥os 151 F.3d 1 (1st Cir. 1998) the Courtheld private psychiatrist could assert qualifiedimmunity who consulted with police department as topsychiatric status of police officer who injuredplaintiff in § 1983 action. However, the First Circuitfailed to even mention Richardson in arriving at theirconclusion that qualified immunity was available tothe private parties, see Sain, supra at p. 892.

The Ninth Circuit has been the mostrestrictive Court in applying qualified immunity toprivate parties, utilizing Richardson v. McKnight toestablish a blanket prohibition against private actorsasserting qualified immunity in its jurisdiction.Initially in Jensen v. Lane County 222 F.3d 570 (9th

Cir. 2000) the Ninth Circuit addressed theRichardson majority’s historical underpinnings andimmunity policies factor in holding that qualifiedimmunity was categorically unavailable to a privatephysician who, along with county officials, committedplaintiff to a psychiatric facility. However, sinceJensen, the Ninth Circuit has extended a blanketprohibition against private individuals’ claims ofqualified immunity in § 1983 actions, holding that

but that Richardson majority rejected the public function testand therefore the law in the Circuit was inconclusive.

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the defendant’s status as a private partyautomatically disqualified him from qualifiedimmunity status. Franklin v. Fox 312 F.3d 423, 440(9th Cir. 2002) (blanket denial of qualified immunityto private individual accused of conspiring with policeto violate defendant’s Sixth Amendment rights whenprivate individual interrogated or questioned plaintiffin jail without an attorney being present); Gonzalesv. Spencer 336 F.3d 832, 835 (9th Cir. 2003) (privateattorney hired to defend county in civil rights actiondenied qualified immunity by Ninth Circuit pursuantto Richardson because she was a private party andnot a government employee); Clement v. City ofGlendale 518 F.3d 1090, 1096-1097 (9th Cir. 2008)(holding that private towing company may not assertqualified immunity because the defense is generallynot available to private defendants in § 1983lawsuits).

Indeed, as recently as September 2010, theNinth Circuit in Delia v. City of Rialto 2010 U.S.App.LEXIS 18836 (9th Cir. 2010) held that a privateinvestigator retained by the City to assist in aninternal affairs investigation against a firefighterwas not entitled to qualified immunity simplybecause he was a private party. The Ninth Circuit’sblanket prohibition against any private actorasserting qualified immunity in its jurisdictionexplains the District Court’s and the Ninth Circuit’sfailure to extend qualified immunity to Dr. Blumdespite the fact he asserted his right to qualifiedimmunity and briefed the issue before both Courts.

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VII.APPLICATION OF RICHARDSON TO DR. BLUM

A. Dr. Blum is Entitled to Assert QualifiedImmunity Under the Richardson Caveat

The majority in Richardson carefully carvedout an exception to the requirement that there mustbe a firmly-rooted tradition in history which supportsimmunity for a private party and that the purposes ofimmunity must be served before qualified immunitycan be extended to a private party. The majority setforth a caveat that "a private individual brieflyassociated with a government body, serving as anadjunct to government in an essential governmentalactivity, or acting under close official supervision"should be entitled to assert qualified immunity.Richardson, supra at p. 431. However, the CircuitCourts have essentially ignored this caveat in post-Richardson decisions.5 Therefore, because Dr. Blum’scase involves unique facts which fall squarely underthis caveat, this Court should clarify the applicationand scope of qualified immunity to privateindividuals under the "brieflyassociated/closesupervision" caveat in Richardson.

5 The decision in Bartell v. Lohiser 215 F.3d 550, 556-557 (6th Cir. 2000) appears to be the sole exception. In Bartel!,the Court determined that a private company which providedfoster care services to the State was closely supervised by theState’s Family and Dependents Agency and thus was entitled toassert qualified immunity under Richardson. Bartel_l, supra atpp. 556"557.

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The record in this case unequivocallyestablishes that Dr. Blum’s limited involvement inthe Stephanie Crowe murder investigation is aperfect fit under the criteria set forth in Richardson’ssecond caveat. First, Dr. Blum was briefly associatedwith the Escondido Police Department. In fact, hisonly association with the Escondido PoliceDepartment involved the Stephanie Crowe murderinvestigation. [App. 346] Moreover, although thepolice conducted numerous lengthy interrogations ofthe three criminal suspects, Dr. Blum only consultedwith the police on a single interrogation involvingMichael Crowe. [App. 332] Thus, Dr. Blumunequivocally was "a privateindividual brieflyassociated with a governmentbody" under theRichardson caveat.

In addition, the recordin this case alsounequivocally establishes that Dr. Blum was "servingas an adjunct to government in an essentialgovernmental activity." Richardson, supra at p. 413.Dr. Blum served as a consultant to the EscondidoPolice Department at the behest of SergeantAnderson with respect to a single interrogation ofMichael Crowe in conjunction with the EscondidoPolice Department’s investigation of the brutalmurder of 12-year-old Stephanie Crowe. Theinterrogation of criminal suspects in a murderinvestigation is undoubtedly an essentialgovernmental activity. See .Chavez, supra.

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Finally, the record in this case indicates thatDr. Blum more than satisfies the "acting under closeofficial supervision" criteria in the Richardsoncaveat. This caveat may have had more applicabilityif Dr. Blum had actually conducted the interrogationof Michael Crowe himsel~ however, he did not. [App.214-215] Unlike most private defendants in § 1983actions, Dr. Blum did not directly engage in anyconduct which violated any constitutional right. Asthe District Court determined, Dr. Blum did notexercise control over the detectives during theinterrogation or their murder investigation, norengage in any conduct which shocked the conscience,findings which are undisturbed by the Ninth Circuit.[App. 284, 294] Therefore, Dr. Blum clearly meetsthe "under close official supervision" factor of theRichardson caveat.

As previously set forth, the Circuit Courts arevirtually unanimous in denying qualified immunityto private individuals in § 1983 actions. The CircuitCourts generally fail to address the RichardsonCourt’s second caveat by which this Court hasindicated qualified immunity may be appropriatelyasserted by a private individual. Qualified immunityshould be extended to Dr. Blum under the uniquefacts of this case which would result in this Courtproviding further guidance and clarification as tounder what circumstances a private individual isentitled to assert qualified immunity under theRichardson majority Opinion.

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Bo The Richardson Majority Criteria forExtending Qualified Immunity to PrivateIndividuals Should Be Re-Examined

As previously set forth, since the Richardsoncase was decided, the Circuit Courts have virtuallyunanimously rejected the application of qualifiedimmunity to private parties in § 1983 lawsuits inanalyzing the historical underpinnings and immunitypurposes criteria established by the majority.Indeed, the Ninth Circuit has extended theRichardson Opinion as a virtual complete bar toprivate parties asserting qualified immunity in thisjurisdiction.

In March of this year the Harvard Law Reviewpublished the scholarly treatise Developments in theLaw." State Action and the Public Private Distinction:Private Party Immunity from Section 1983 Suits, 123Harvard Law Review 1266 (March 2010). Thistreatise noted that:

"Lower courts have attempted to apply[the Richardson majority] standard, buthave been confused by Richardson’s useof precedent and the complex mix offactors in its analysis and have reacheddivergent conclusions about variouscategories of private actors. It is timefor the court to reconsider theRichardson standard and either clarifyits own logic or adopt a new standard."123 Harvard Law Review at p. 1267 ...

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The court’s narrow holdings in _~_yattand Richardson - the only two opinionsto address private qualified immunitysquarely - leave the applicability of thehistory and policy standard uncertain.The Richardson Opinion, upon whichlower courts principally rely, fails toaddress complex issues of precedent andto clarify its own logic in applying thestandard. Lower courts haveunsurprisingly reached contradictoryresults in trying to apply Richardson.123 Harvard Law Review at p. 1270 .....

Lower courts have varied widely inapplying Richardson, with the majorityof cases denying qualified immunity.Seven Circuits have used Richardson asa test, refusing to grant private actors’qualified immunity in anycircumstances. While only one Circuithas explicitly granted private actorsqualified immunity under Richardson,others have arguably done so implicitly,so immunity is not always categoricallyprecluded. One Circuit has held thatqualified immunity applied in everycase it has considered, even though ithas not relied on ~_vatt or Richardson.The remaining four Circuits have noholding applying Richardson. Muchlitigation continues at the district courtlevel without circuit’wide resolution."123 Harvard Law Review at p. 1271.

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The Harvard treatise concludes:

"Contradictory immunity standardshave costs. Patchwork liability acrossjurisdictions raises privatization costsas firms adapt to each jurisdiction’srules, requiring differences in benefitsand personnel practices even within astate. Federal laws should not createsuch problems, especially sinceCongress is empowered to solve them.The inconsistency of outcomes in federalcourt make this litigation unfair to bothdefendants and plaintiffs, asconstitutional liability and redress willdepend not only on who the parties are,but also upon where they are. Inaddition, the deluge of more than 100cases so far over whether qualifiedimmunity applies is an added cost, notconsidered by Richardson, that has beenand will continue to be passed on tosociety. The cost of litigation is sure tocontinue absent intervention.

These problems could be largelyaddressed if the court clarified itsimmunity standard by explaining’behest of the sovereign,’ how the factorsrelate and which are dispositive, andwho bears the burden of proof.Alternatively, the court could reformthe standard by granting immunity toall state actors or to those who are

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determined to be based on certain stateaction tests (that is, a case-by-casefunctional standard). While the latterapproach is less consistent than theformer, it would reduce the inquiry to asingle point and be no more inconsistentthan the current standard. The courthas had opportunities to review theissue, but it has not done so ....Otherwise the aggregate costs ofinconsistency will continue to rise, andstate privatization will continue to beburdened needlessly. A clear, logicallycoherent standard is something uponwhich all states and their citizens canand should insist." 123 Harvard LawReview at pp. 1277-1278.

This recent treatise enunciates persuasivereasons why writ of certiorari should be granted inthe present case to clarify and/or reexamine thestandard under Richardson for granting qualifiedimmunity to private individuals.

Finally, simple justice should cause this Courtto grant Dr. Blum’s writ of certiorari in the presentcase. By assisting the police in their investigation ofStephanie Crowe’s murder, Dr. Blum has been foundto be a state actor for purposes of § 1983 liability.[App. 213-214] Moreover, since the Ninth Circuit hasdetermined that Dr. Blum could be liable on aconspiracy theory under the incredibly nebulousstandard of "not categorically inconsistent with ameeting of the minds," Dr. Blum could conceivably beliable for the actions of the Escondido Police

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Detectives.Dr. Blum’s extremely limited participation in

the Stephanie Crowe murder investigationessentially consisted of consulting with the police ona single interrogation of Michael Crowe on January23, 1998. The Escondido Police, on the other hand,according to the Ninth Circuit Opinion conductedfour separate interrogations of Michael Crowe, twoseparate interrogations of Aaron Houser, and threeseparate interrogations of Joshua Treadway. TheEscondido Police interrogated these three individualsfor a total of nearly 45 hours. [App. 12"30] Inaddition, the police conducted numerous arrests andsearches and seizures in which Dr. Blum hadabsolutely no part.

The Escondido Police who performed the manyinterrogations, the arrests, and the searches andseizures are entitled to assert qualified immunity inthis case and could conceivably obtain a completeexoneration for their actions under the qualifiedimmunity doctrine. To prohibit Dr. Blum, who hadmeager participation in the massive scope of theStephanie Crowe murder investigation, fromasserting qualified immunity simply because of hisstatus as a private citizen is an extreme injustice.This is precisely the type of case where writ ofcertiorari should be granted so that this Court mayre-examine and clarify the contours of the qualifiedimmunity doctrine for private individuals andconsider the stark ramifications in denying qualifiedimmunity to private individuals who provide limitedassistance to law enforcement officials in criminalinvestigations.

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VIII.PLAINTIFFS’ FOURTEENTH AMENDMENT

RIGHTS WERE NOT VIOLATEDAND THE LAW

WAS NOT CLEARLY ESTABLISHEDTHAT THE SUBJECT INTERROGATIONS

VIOLATED THE FOURTEENTH AMENDMENT

In Pearson, supra, this Court clarified that inevaluating the two’prong test: (1) whether the factsalleged or shown by the plaintiff make out violationof a constitutional right and (2) if so, whether thatright was clearly established at the time ofdefendant’s alleged misconduct that it was notnecessary that those prongs be evaluated in thatexact sequence. Pearson, supra at pp. 815-816. Inthe instant case, regardless of the sequence in whichthe two’prong test is evaluated it is clear that Dr.Blum is entitled to summa.ry judgment under aqualified immunity analysis.

The Ninth Circuit explained its reversal of thegrant of summary judgment to Dr. Blum as to theconspiracy claim "insofar as these tactics and lines ofquestioning by the detectives shock the conscience, asdemonstrated above, summary judgment in favor ofDr. Blum is unwarranted." [App. 67] However, inutilizing the two’pronged approach clarified by thisCourt in Pearson, supra, the evidence does notestablish: 1) that the "tactics and lines ofquestioning" by the detectives during Plaintiffs’interrogations rose to the stringent shock theconscience level of conduct necessary to establish a

33

Fourteenth Amendment violation; 6 and 2) nor wasthe right to be free from the particular "tactics andlines of questioning" employed by the Escondidodetectives clearly established.

A. Plaintiffs’ Fourteenth Amendment RightsWere Not Violated

As this Court recognized in Chavez v.Martinez, supra, deprivations of liberty caused by"the most egregious official conduct" or behavior that"shocks the conscience" may violate the FourteenthAmendment due process clause giving rise to a § 1983claim. Chavez, supra at p. 774 (Opinion by JusticeThomas); County of Sacramento v. Lewis 523 U.S.833 (1998).

With respect to interrogations which mayviolate the Fourteenth Amendment, Justice Kennedycharacterized such conduct as the "use of torture orits equivalent in an attempt to induce a statementthat violates an individual’s fundamental right toliberty of the person. [citation omitted] TheConstitution does not countenance the officialimposition of severe pain or pressure for purposes ofinterrogation." Chavez, supra at p. 796, concurring

~ As previously set forth, Dr. Blum consulted with theEscondido Police Officers on the single January 23, 1998interrogation of Michael Crowe and did not consult orparticipate in any manner in the interrogations of Aaron Houseror Joshua Treadway or any of the other interrogations ofMichael Crowe conducted by the Escondido Police. Insofar asHouser is making claims based on either his or Michael Crowe’sinterrogation, the arguments in this Petition apply fully toHouser’s claims.

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and dissenting Opinion by Justice Kennedy). Alsosee footnote 1 in Justice Stevens’ concurring anddissenting Opinion in Chavez, supra at p. 787, listingSupreme Court cases where "unusually coercivepolice interrogation procedures" violated theFourteenth Amendment. (Darwin v. Connecticut,391 U.S. 346 (1968) (suspect interrogated for 48hours incomm unicado while officers denied access tocounsel); Beecher v. Alabama 389 U.S., 36 (1967)(officer fired rifle into suspect’s ear and said if youdon’t tell the truth I’m going to kill you); Clewis v.Texas 386 U.S. 707 (1967) (suspect was arrestedwithout probable cause, interrogated for nine dayswith little food or sleep, and gave three unwarranted"confessions" each of which he immediatelyretracted); Reck v. Pate 367 U.S. 433, 439 " 440(1961) (mentally-retarded youth interrogatedincommunicadofor a week, during which time he wasfrequently ill, fainted several times, vomited blood onthe floor of the police station, and was twice taken tothe hospital on a stretcher).

It is undisputed that Dr. Blum did not engagein any conscience-shocking or egregious activity anddid not interrogate any of the Plaintiffs in thismatter. [App. 297] Moreover, with respect toPlaintiffs’ conspiracy claim, the record in the instantcase is devoid of the conscience’shocking, egregiousconduct equivalent to torture which satisfies thedemanding Fourteenth Amendment standards. TheDistrict Court, after exhaustively examining thevideotapes of the interrogations, determined that theinterrogations conducted by the Escondido Police didnot rise to the conscience shocking standard requiredfor a Fourteenth Amendment violation. [App. 291-

35

298]The record is devoid of any evidence that the

police used any form of physical force or coercion,that the officers yelled at or even raised their voicesduring any of the interrogations, or deprived the boysof sustenance as this Court has required in previouscases to sustain a Fourteenth Amendment violationbased upon the interrogation of a criminal suspect.(See District Court Opinion, App. 291298.) Becausethe police officers’ interrogation of Michael Crowedoes not rise to the level of conscience-shocking andegregious conduct necessary to support a FourteenthAmendment claim, qualified immunity would beapplicable to the claims against Dr. Blum.

Bo The Law Was Not Clearly Established Thatthe "Tactics and Lines of Questioning" in theInterrogation Violated the FourteenthAmendment

The second prong under Pearson, supra "whether the right at issue is clearly established - isalso satisfied for the purposes of applying qualifiedimmunity to the interrogations. This inquiry turnson the "objective legal reasonableness of the action,assessed in light of the legal rules that were clearlyestablished at the time it was taken." Pearson, supraat p. 822. In the instant case it is impossible to arguethat the law was clearly established that the "tacticsand lines of questioning by the detectives" duringPlaintiffs’ interrogations violated the FourteenthAmendment as the Ninth Circuit exclusively reliedupon in determining that summary judgment in favorof Dr. Blum was unwarranted. [App. 67]

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First, if the law were clearly established thatthe detectives’ tactics and lines of questioningviolated the Fourteenth Amendment, the DistrictCourt would have been required to find a FourteenthAmendment violation. Instead, in contrast to theNinth Circuit, the District Court reviewed all 40"plushours of the interrogations as well as the transcriptsof the interrogations and determined that thedetectives’ conduct, tactics and lines of questioningdid not in fact violate the Fourteenth Amendment.[App. 291-297]

It is difficult to articulate that the law wasclearly established that the detectives’ tactics andlines of questioning violated the FourteenthAmendment when a Federal Court District Judgewho reviewed hours and hours of the interrogationsheld that such conduct did not violate the FourteenthAmendment. As this Court has recognized, "If judgesdisagree on a constitutional question, it is unfair tosubject police to money damages for picking thelosing side of the controversy." Pearson, supra at p.823.

Moreover, the law regarding what constitutesa Fourteenth Amendment violation in a custodialinterrogation was far from settled under NinthCircuit law. The Ninth Circuit’s decision in Stoot v.City of Everett 582 F.3d 910 (9th Cir. 2009)exemplifies the unsettled nature of conduct thatviolates the Fourteenth Amendment in custodialinterrogations of minors. In Stoot, a developmentallydelayed 14-year-old was interrogated by a policedetective regarding claims that he had sexuallyabused a 3-year-old girl. The interrogation of the 14-year-old involved much of the same tactics/lines of

37

questioning that the Ninth Circuit in the present caseconcluded shocked the conscience.

The detective in St__oo__~t threatened the 14-year-old with heightened punishment if the minor deniedhis guilt and promised leniency if he admitted guilt.Stoot, supra at p. 915. The minor testified that thedetective would not take no for an answer and thatthe minor did not know what to do besides tell thedetective that he committed the crime as he believedthat was the only way he was going to walk out of theroom. Stoot, supra at p. 915. The detectivethreatened the minor with jail if he kept denying thecrime but that if he confessed to the crime it would beall over and there would be no jail. Stoot, supra at p.915. The mentally-disabled minor in Stoot wasovercome by the tactics of the physically-imposingdetective and stated he had never been so scared inhis life, that he wanted his mom or dad or a teacher,and because the detective kept drilling him that hefelt he had to lie and tell the detective what hewanted in order for the interrogation to stop. Stoot,supra at p. 916. The juvenile court found that thestatements made by the minor in his interrogationwere the product of impermissible coercion and ruledthem inadmissible. Stoot, supra at p. 917.

The minor thereafter brought federalconstitutional claims under § 1983 against thedetective, alleging among other things violation of hissubstantive due process rights under the FourteenthAmendment. The detective asserted qualifiedimmunity. As to the Fourteenth Amendment claims,the Ninth Circuit held as follows:

38

"Jensen’s interrogation techniques, evenwhen construed to the light mostfavorable to the Stoots, did not rise tothe level of a Fourteenth Amendmentviolation. The Stoots allege that Jensenused ’improper promises and threats ...[that] clearly overcame whatever willthe child could have in denying theseallegations.’ They claim that becausePaul was a ’developmentally-delayedyoung boy, he could not fully andaccurately comprehend that thesepromises were reasonable or make anaccurate assessment of the potentialoutcomes in the same manner as anadult.’ And they correctly note thatunder this Court’s precedent,psychological coercion is sufficient tostate, a claim under the FourteenthAmendment. [citation omitted]

While these allegations might berelevant to the question whether Paul’sconfession was in fact voluntary andtherefore admissible, an issue thejuvenile court resolved in Paul’s favor,they fall below what is required to statea claim under the FourteenthAmendment. Notably lacking, forexample, is any allegation that Jensen’intended to injure [Paul] in some wayunjustifiable by any governmentinterest,’ as required by precedent.[citation omitted] Stoot, supra at pp.

39

928-929.

It is difficult to argue that the law was clearlyestablished that the Escondido detectives’questioning of Plaintiffs violated their FourteenthAmendment rights when they utilized similar tacticsto those set forth in Stoot which the Ninth Circuitheld did not establish a Fourteenth Amendmentviolation. The Stoot decision is conclusive that thealleged conduct of the Escondido Police Departmentwhom Dr. Blum allegedly conspired with did notviolate clearly-established law with respect to theinterrogations of Plaintiffs.

Finally, this Court’s own decision in Chavez,indicates that the law was not clearly establishedthat the tactics and lines of questioning utilized bythe police detectives in Michael Crowe’s interrogationviolated the Fourteenth Amendment. In Chavez, thecriminal suspect "had been shot in the face, both eyeswere injured; he was screaming in pain, and comingin and out of consciousness while being repeatedlyquestioned about the details of the encounter withpolice." [citation omitted] His blinding facial woundsmade it impossible for him visually to distinguish theinterrogating officer from the attending medicalpersonnel. The officer made no effort to dispel theperception that medical treatment was beingwithheld until Martinez answered the questions putto him. There was no attempt through Mirandawarnings or other assurances to advise the suspectthat his cooperation should be voluntary. Martinezbegged the officer to desist and provide treatment forhis wounds, but the questioning persisted despitethese pleas and despite Martinez’s unequivocal

40

refusal to answer questions. Chavez, supra at p. 798(concurring and dissenting Opinion of JusticeKennedy).

Under these facts, three Justices determinedthat the interrogation shocked the conscience andplaintiffs Fourteenth Amendment rights wereviolated. Chavez, supra at p. 789, 798-799 (Opinionby Justice Kennedy joined by Justice Stevens andJustice Ginsberg). Two Justices, on these very samefacts, determined that the conduct of the officersduring their interrogation was not "egregious" or"conscience-shocking" to constitute a violation of theFourteenth Amendment. Chavez, supra at pp. 774-776 (Opinion by Justice Thomas); Chavez, supra at p.783 (Opinion by Justice Scalia).

As the district court in this case determined,the interrogation in Chavez was far more egregiousthan the Escondido detectives’ interrogations in thepresent case [App. 294"296] and therefore, areasonable officer would not have known that theinterrogations of the boys would have amounted to aviolation of their Fourteenth Amendment rights tosubstantive due process given the interrogationslacked the brutality has previously marked the policeconduct found by the Courts to be "shocking to theconscience." [App. 294-296]

The law was not clearly established that thetactics and lines of questioning utilized in Plaintiffs’interrogations shocked the conscience or were soegregious as to constitute a violation of theFourteenth Amendment. If allowed to assertqualified immunity, Dr. Blum would therefore beentitled to summary judgment in his favor basedupon the remaining conspiracy claim against him.

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IX.CONCLUSION

Because there are serious constitutionalquestions raised by Dr. Blum’s case regarding theapplication of qualified immunity to private citizens,the Court should grant Dr. Blum’s Petition for Writ ofCertiorari.

Dated: September 16, 2010

Respectfully submitted,

MURCHISON & CUMMING, LLP

~an L. L~ng~, Esq.~’Attorneys for PetitionerLawrence N. Blum, Ph.D.

42

CERTIFICATE OF COMPLIANCE

No.

LAWRENCE N. BLUM, PH.D., Petitioner

MICHAEL CROWE, STEPHEN CROWE, CHERYL A. CROWE, JUDITHANN KENNEDY, SHANNON CROWE, AARON HOUSER, MARGARET

SUSAN HOUSER, CHRISTINE HUFF, AND GREGG HOUSER,Respon den ts

As required by Supreme Court Rule 33. l(h), I certifythat the Petition for a Writ of Certiorari contains 8,838words, excluding the parts of the petition that areexempted by Supreme Court Rule 33. l(d).

I declare under penalty of perjury that the foregoing istrue and correct. Executed this 16th day of September,2010.

D4n L. Longo; Esq.~"

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CERTIFICATE OF SERVICE

At the time of service, I was over 18 years ofage and not a party to this action. I am employedin the County of San Diego, State of California. Mybusiness address is 750 "B" Street, Suite 2550, SanDiego, California 92101-8114.

On September 16, 2010, I served true copies ofthe following document(s) described as PETITIONFOR WRIT OF CERTIORARI on the interestedparties in this action as follows:

Supreme Court of the United States1 First Street, NEWashington, DC 20543(original and 40 copies)

(and 3 copies to each of the £ollowinz):

United States Court of Appeals for the Ninth CircuitThe James R. Browning Courthouse95 7th Street

San Francisco, CA 94103(415) 355-8000

Jason R. Litt, Esq.HORVITZ & LEVY LLP15760 Ventura Boulevard, 18th FloorEncino, CA 91436(818) 995-0800Attorney for Defendants City of Escondido.

8lank Page

Jeffrey R. Epp, City AttorneyOFFICE OF THE CITY ATTORNEY201 North BroadwayEscondido, CA 92025(760) 839-4608Attorney for Defendants City of Escondido

Richard J. Schneider, Esq.DALEY & HEFT462 Stevens Avenue, Suite 201Solana Beach, CA 92075(858) 755-5666Attorneys for Defendant City of Escondido.

Dennis A. Schoville, Esq.SCHOVILLE & ARNELL, LLP2404 BroadwaySan Diego, CA 92102(619) 232-9901Attorney for Plaintiffs Houser, et

Jon Williams, Esq.BOUDREAU WILLIAMS LLP666 State StreetSan Diego, CA 92101(619) 238-0370Attorney for Plaintiffs Houser, eta].

Milton J. Silverman, Esq.2404 BroadwaySan Diego, CA 92102(619) 231-6611Attorney for Plaintiffs Crowe, et ~1.

2

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Diane Lee Field, Esq.FERGUSON PRAET & SHERMAN1631 East 17th StreetSanta Ana, CA 92705(714) 953"5300Attorneys for De£endant Officer McDonough

Cynthia E. Tobisman, Esq.GREINES, MARTIN, STEIN & RICHLAND LLP5900 Wilshire Boulevard, 12th FloorLos Angeles, CA 90036(310) 859-7811Attorneys for De£endant Officer McDonough

BY MAIL: I enclosed the document(s) in sealed envelopesor packages addressed to the persons/entities at the aboveaddresses and placed the envelopes for collection andmailing, following our ordinary business practices. I amreadily familiar with Murchison & Cumming’s practice forcollecting and processing correspondence for mailing. Onthe same day that the correspondence is placed forcollection and mailing, it is deposited in the ordinarycourse of business with the United States Postal Service,in a sealed envelope with postage fully prepaid.

I declare under penalty of perjury of the laws of theUnited States of America that the foregoing is true andcorrect. Executed on September 16, 2010, at San Diego,California.

Diane E. Christel

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