Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL CROWE; STEPHEN CROWE; 

CHERYL A. CROWE; JUDITH ANN

KENNEDY; SHANNON CROWE, a

minor, through guardian ad litem

STEPHAN CROWE; ZACHARY

TREADWAY; JOSHUA DAVID

TREADWAY; MICHAEL LEE

TREADWAY; TAMMY TREADWAY;

JANET HASKELL; MARGARET SUSAN

HOUSER; CHRISTINE HUFF; GREGG

HOUSER; AARON HOUSER,

Plaintiffs-Appellees, No. 05-55467

v.  D.C. No.

COUNTY OF SAN DIEGO; THE CV-99-00241-JSR

CITY OF OCEANSIDE; CHRIS

MCDONOUGH; GARY HOOVER;

SUMMER STEPHAN; LAWRENCE

BLUM; CITY OF ESCONDIDO;

NATIONAL INSTITUTE FOR TRUTH

VERIFICATION; RICK BASS,

Defendants,

and

MARK WRISLEY; BARRY SWEENEY;

RALPH CLAYTOR; PHIL ANDERSON,

Defendants-Appellants. 

1045
MICHAEL CROWE; STEPHEN CROWE; 

CHERYL A. CROWE,

Plaintiffs-Appellants,

SHANNON CROWE, a minor, through

guardian ad litem, STEPHAN

CROWE,

Plaintiff-Appellant,

and

JUDITH ANN KENNEDY,

Plaintiff,

ZACHARY TREADWAY; JOSHUA DAVID

TREADWAY; MICHAEL LEE

TREADWAY; TAMMY TREADWAY;

JANET HASKELL; MARGARET SUSAN No. 05-55542

HOUSER; CHRISTINE HUFF; GREGG

H

 D.C. No. OUSER; AARON HOUSER,

CV-99-00241-JSR Plaintiffs,

v.

COUNTY OF SAN DIEGO; THE

CITY OF OCEANSIDE; CHRIS

MCDONOUGH; GARY HOOVER;

SUMMER STEPHAN; LAWRENCE

BLUM; CITY OF ESCONDIDO;

NATIONAL INSTITUTE FOR TRUTH

VERIFICATION; RICK BASS,

Defendants,

and

MARK WRISLEY; BARRY SWEENEY;

RALPH CLAYTOR; PHIL ANDERSON,

Defendants-Appellees. 

1046 CROWE v. WRISLEY
STEPHEN CROWE; CHERYL CROWE; 

JUDITH ANN KENNEDY; SHANNON

CROWE, a minor through their

guardian ad litem, STEPHEN CROWE;

ZACHARY TREADWAY; JOSHUA DAVID

TREADWAY; MICHAEL LEE

TREADWAY; TAMMY TREADWAY;

JANET HASKELL,

Plaintiffs,

CHRISTINE HUFF,

Plaintiff, No. 05-56311

and  D.C. No.

CV-99-00241-JSR MARGARET SUSAN HOUSER; GREGG

HOUSER; AARON HOUSER,

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO; MARK

WRISLEY; BARRY SWEENEY; RALPH

CLAYTOR; CITY OF ESCONDIDO;

PHILLIP ANDERSON; SUMMER

STEPHAN; RICK BASS, Lieutenant,

Defendants-Appellees. 

CROWE v. WRISLEY 1047
MICHAEL CROWE; STEPHEN CROWE; 

CHERYL A. CROWE; JUDITH ANN

KENNEDY; SHANNON CROWE, a

minor, through guardian ad litem

STEPHEN CROWE,

Plaintiffs-Appellants,

and

ZACHARY TREADWAY; JOSHUA DAVID

TREADWAY; MICHAEL LEE

TREADWAY; TAMMY TREADWAY;

JANET HASKELL; MARGARET SUSAN No. 05-56364

HOUSER; CHRISTINE HUFF; GREGG D.C. No. HOUSER; AARON HOUSER,  CV-99-00241-JSR Plaintiffs,

OPINION

v.

COUNTY OF SAN DIEGO; THE

CITY OF OCEANSIDE; CHRIS

MCDONOUGH; GARY HOOVER;

SUMMER STEPHAN; LAWRENCE

BLUM; CITY OF ESCONDIDO;

NATIONAL INSTITUTE FOR TRUTH

VERIFICATION; RICK BASS; MARK

WRISLEY; BARRY SWEENEY; RALPH

CLAYTOR; PHIL ANDERSON,

Defendants-Appellees. 

Appeal from the United States District Court

for the Southern District of California

John S. Rhoades, District Judge, Presiding

Argued and Submitted

June 1, 2008—Pasadena, California

Filed January 14, 2010

1048 CROWE v. WRISLEY
Before: Stephen S. Trott, Sidney R. Thomas, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Thomas

CROWE v. WRISLEY 1049
COUNSEL

Milton J. Silverman (argued), Robert T. Geile, Law Office of

Milton J. Silverman; attorneys for plaintiffs-appellants and

Cross-Appellees Michael Crowe, Stephen Crowe, Cheryl

Crowe, and Shannon Crowe.

Jon R. Williams (argued), Lindsay J. Reese, Ross, Dixon &

Bell; Dennis A. Schoville, Louis G. Arnell, James S. Iagmin,

Schoville & Arnell; attorneys for plaintiffs-appellants and

cross-appellees Aaron Houser, Margaret Susan Houser, and

Gregg Houser.

1054 CROWE v. WRISLEY
John J. Sansone, County Counsel, County of San Diego,

George W. Brewster Jr. (argued), Senior Deputy; attorneys

for defendant-appellant Summer Stephan. 

Richard J. Schneider, Glnar J. Fozi, Daley & Heft; Steven J.

Renick (argued), Manning & Marder, Kass Ellrod, Ramirez;

attorneys for defendants-appellees and Cross-Appellants City

of Escondido, Mark Wrisley, Barry Sweeney, Ralph Claytor,

and Phil Anderson.

Diana L. Field, Ferguson, Praet & Sherman; Timothy T.

Coates, Cynthia T. Tobisman, Greines, Martin, Stein & Richland; attorneys for defendants-appellees and cross-appellants

City of Oceanside, Oceanside Police Department, and Christopher McDonough.

Kenneth H. Moreno, Scott J. Loeding, Murchinson & Cumming; attorneys for defendant-appellee Lawrence N. Blum,

Ph.D.

OPINION

THOMAS, Circuit Judge:

This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit.

Michael Crowe, Aaron Houser, and Joshua Treadway were

wrongfully accused of the murder of Michael’s 12-year-old

sister Stephanie Crowe. After hours of grueling, psychologically abusive interrogation—during which the boys were isolated from their families and had no access to lawyers—the

boys were indicted on murder charges and pre-trial proceedings commenced. 

A year later, DNA testing revealed Stephanie’s blood on

the shirt of a transient, Richard Tuite, who had been seen in

CROWE v. WRISLEY 1055
the Crowes’ neighborhood on the night of the murder and

reported by several neighbors for strange and harassing

behavior. The shirt had been collected as part of the initial

investigation, but never fully tested. Charges against the boys

were eventually dropped, and Tuite was convicted of Stephanie’s murder.

Michael, Aaron, Joshua, and their families filed a complaint against multiple individuals and government entities

who had been involved in the investigation and prosecution of

the boys. The complaint alleged, amongst other claims, constitutional violations under the Fourth, Fifth, and Fourteenth

Amendments, and defamation claims. In two separate orders,

the district court granted summary judgment in favor of the

defendants as to the majority of the plaintiffs’ claims. The

Crowes and the Housers now appeal the bulk of those orders

and several defendants cross-appeal the district court’s denial

of summary judgment on qualified immunity grounds as to

several claims. We affirm in part and reverse in part.

I. Facts and Procedural History 

A. The Crime and Initial Investigation

On the night of January 20, 1998, police received several

911 phone calls reporting that a man—later identified as

Richard Tuite—was bothering people in the neighborhood in

which the Crowe family resided. Witnesses testified that Tuite

appeared drunk or high. One witness heard him yell “I’m

going to kill you you fucking bitch.” Another witness saw

him spinning around in circles. Between 7:00 p.m. and 8:00

p.m., Tuite entered one house in the neighborhood after the

occupant, Dannette Mogelinski, mistook his knock for that of

a neighbor. Tuite repeatedly asked for Tracy. Mogelinski said

she did not know Tracy. Tuite left, but then opened the door

and again asked for Tracy. Mogelinski again said she did not

know Tracy, and Tuite left. Around 7:50 p.m. Shannon Homa

called 911 to report a man behaving strangely in an area near

1056 CROWE v. WRISLEY
the Crowes’ home. At approximately 9:28 p.m., Gary West,

a neighbor of the Crowes, called 911 to report a transient who

had knocked on his door and said he was looking for a girl.

Escondido police officer Scott Walters was dispatched to

the area. As Officer Walters drove toward the Crowe house,

he noticed a door next to the garage close. He could not see

who closed the door. Officer Walters then noted in his log that

the transient was “gone on arrival” and left the scene at 9:56

p.m. 

Sometime between 10:00 p.m. and 11:00 p.m., 12-year-old

Stephanie Crowe was stabbed to death in her bedroom. An

autopsy determined that Stephanie was stabbed numerous

times with a knife with a 5-6 inch blade. 

Stephanie was found dead by her grandmother the next

morning around 6:30 a.m. Paramedics were the first to

respond to the 911 call. Defendant Escondido Police Department Detective Barry Sweeney arrived on the scene shortly

thereafter. Police checked all of the doors and windows in the

house and found no signs of forced entry. However, they did

discover that a door leading to the master bedroom, a door

located near the garage,1 and at least one window had not

been locked during the night. 

Police questioned all of the members of the Crowe household at the Escondido police station in the afternoon of January 21, including Stephanie’s parents, Stephen and Cheryl

Crowe; Stephanie’s grandmother, Judith Kennedy; Stephanie’s 10-year-old sister, Shannon Crowe; and Stephanie’s 14-

year-old brother, Michael Crowe. The police also strip

searched Michael, Stephen, Cheryl, and Shannon and photographed them nude or partially nude.2

1This was the same door Officer Walters saw close the night before. 

2Michael was photographed in only his underwear. Stephen was photographed completely nude. Cheryl was photographed without her underwear. Shannon was photographed without a bra. 

CROWE v. WRISLEY 1057
Before questioning Michael, the police advised him of his

Miranda rights. The police did not Mirandize other members

of the Crowe family. Michael was interviewed by Detective

Mark Wrisley, a defendant in this case. Michael told Detective Wrisley that he had gotten up at 4:30 a.m. that morning

with a headache, and that he had been running a fever the day

before. He described having turned on his television for light

and walked to the kitchen, where he took some Tylenol. He

also told Detective Wrisley that all other bedroom doors had

been shut when he was in the hallway. The defendant officers

testified that they considered Michael’s statement that the

bedroom doors were closed suspicious because by 4:30 a.m.

Stephanie was dead in the doorway of her bedroom with the

door open. 

After police had questioned all members of the Crowe family, they decided to place Michael and Shannon in protective

custody and transported them to the Polinksy Children’s Center.3

The same day, the police located Richard Tuite and brought

him to the police station so that they could talk to him, fingerprint him, and take samples of fingernail scrapings, hair, and

clothing. At the police station, Detective Sweeney attempted

to interview Tuite, but did not obtain much information.

Detective Sweeney did not run a background check on Tuite.

A background check would have shown that Tuite had an

extensive mental health history and had been arrested multiple

times on various charges. Tuite was detained for only a short

period of time and then released.

3The Polinksy Children’s Center is a 24-hour facility for the temporary

emergency shelter of children who must be separated from their families

for their own safety, or when parents can not provide care. 

1058 CROWE v. WRISLEY
B. The Interrogations and Related Searches

1. Michael

Michael was interrogated on four occasions, starting with

the initial interview on January 21, 1998, at the Escondio

police station. On January 22, 1998, Michael was interviewed

a second time, by Detectives Wrisley and Han,4 at the

Polinksy Children’s Center, where he and Shannon had spent

the night after being taken into protective custody. During this

interview, Michael again stated that he had woken up around

4:30 a.m., had gone to the kitchen for some Tylenol, and had

thought the other doors in the hallway were closed. Michael

next described waking the next morning to his parents’

screams and then seeing Stephanie soaked in blood. When

asked how he felt when he saw her, Michael said he cried. He

described his sister as “the best person” and “kind” and

expressed anger at whoever had killed her. 

That same day the Escondido Police Department contacted

the Oceanside Police Department to request the assistance of

an officer who knew how to operate a “computer voice stress

analyzer.” Oceanside responded by sending one of its detectives, Christopher McDonough. When Detective McDonough

arrived at Escondido, he was provided with limited information regarding Stephanie’s murder. 

Michael was then interviewed later that day for a third

time, by Detectives McDonough and Claytor. This interview

lasted more than three hours and took place at the Escondido

Police Station. At the beginning of the interview, Michael

indicated that he felt sick. Michael then repeated the same

series of events for the evening of January 20 and the morning

of January 21 that he had recounted in the first two interviews. Detective Claytor then asked Michael if he would be

4Detective Han was not named as a defendant in this action. 

CROWE v. WRISLEY 1059
willing to take “a truth verification exam.” Michael responded

that he would be willing, but added: 

I feel like I just . . . I spent all day away from my

family. I couldn’t see them. . . . I feel like I’m being

treated like I killed my sister, and I didn’t. It feels

horrible, like I’m being blamed for it. Everything I

own is gone . . . Everything I have is gone. Everything. You won’t even let me see my parents. It’s

horrible.

Detective McDonough then entered the room and took over

the interview.

After Michael recounted the same series of events and

again expressed how stressful the past two days had been,

McDonough introduced the computer stress voice analyzer.

McDonough told Michael the stress voice analyzer “was controlled by the government for a long time, okay, because it

was so accurate.”

Detective McDonough asked Michael a long series of “yes

or no” questions, including both control questions and questions specific to Stephanie’s death. McDonough then

reviewed the results with Michael and told him that the test

“showed that you had some deception on some of the questions.” McDonough asked him, “Is there something, though,

that maybe you’re blocking out . . . in your subconscious

mind that we need to be aware of?” McDonough pressured

Michael about whether there was something Michael needed

to confess, which Michael repeatedly denied. 

At this point Detective Claytor took over the interview.

Claytor told Michael they found blood in his room, lifted fingerprints off the blood stains, and that the police now knew

who killed Stephanie. Then he told Michael: 

We can’t bring her back. I’ll tell you what we can

do. What we can do is the right thing by Stephanie’s

1060 CROWE v. WRISLEY
name and by yourself and by your parents. Okay.

Now, there is a couple of things that we need your

help with . . . that only you’re going to be able to

help us with. . . . What I’d like you to do right off

the bat, rather than put our team through any more,

can you tell me what you did with the knife?

Michael responded: “What—God. I don’t—no. I don’t know.

I didn’t do it. I swear to God.” Claytor continued to insist

Michael killed Stephanie and Michael continued to deny it.

Claytor also repeatedly told Michael that he wasn’t a bad person and that they wanted to help him. 

Claytor next introduced the idea that Michael killed Stephanie but did not remember it. Michael started repeating over

and over that he didn’t remember doing anything. He also

asked Claytor if he was sure Michael had done it, to which

Claytor responded, “I’m sure about the evidence. Absolutely.”

At this point Claytor left and McDonough resumed the interview. As Claytor left Michael sobbed, “God. God. Why?

Why? Why? Oh, God. God. Why? Why? I don’t deserve life.

I don’t want to live. I can’t believe this. Oh, God. God. Why?

Why? How could I have done this? I don’t even remember if

I did it.” When McDonough entered the room, Michael continued to state that he didn’t remember and asked “How can

I not remember doing something like that? That’s not possible.” The interview ended shortly thereafter.

Michael was interviewed for a fourth and final time the following day, January 23, 1998, by Detectives Wrisley and

Claytor. Prior to the interview, police contacted Dr. Lawrence

Blum, a clinical psychologist, and asked him to consult with

them during the interview. Dr. Blum was briefed by police,

watched portions of the videos of Michael’s previous interviews, and then observed the fourth interview from a monitoring room. Dr. Blum commented on Michael’s demeanor,

personality, and responses to questions. The interview lasted

more than six hours. 

CROWE v. WRISLEY 1061
During the interview Detectives Wrisley and Claytor took

turns interrogating Michael. They employed a variety of tactics in an attempt to extract a confession from him. The first

approach they took—which they repeated throughout the

interview—was to tell Michael that they had evidence to

prove he had killed his sister. They told him again that they

found blood in his room, that they knew Michael had moved

Stephanie, that they had proof that no one had entered the

house and so Stephanie had to have been killed by a family

member, and that they found blood in the bathroom sink.

Claytor told Michael that they were going to play a game,

in which they would talk about the evidence and Michael

would explain it. They started with the blood Claytor said was

found in Michael’s room. When Michael said he didn’t know

how to explain it because he didn’t know how it got there,

Claytor told him that under the rules of the game Michael

wasn’t allowed to say “I don’t know.” As Claytor continued

to push Michael, Michael gave responses such as “How am

I supposed to tell you an answer that I don’t have? I can’t—

it’s not possible to tell you something I don’t know,” and

“You keep asking me questions I can’t answer. What do you

want me to do? Make something up? Lie to you?” 

Later, Wrisley tried to get Michael to describe stabbing

Stephanie:

Q. What did you do?

A. I don’t know. All I know that I did is what you

told me. That’s all I know.

Q. What did we tell you that you did?

A. You told me that I killed her.

Q. How?

1062 CROWE v. WRISLEY
A. I don’t know. You asked me what I did with the

knife, so I assume it was a knife. That’s all I know.

Q. So what does the knife do? What’s the knife got

to do with it?

A. He asked me if I—what I did with the knife, but

I can’t—I don’t know. That’s all I know.

Q. Well, if there was a knife there and Stephanie was

dead, what role did the knife play?

A. I don’t know. They thought I killed her.

Q. How?

A. I don’t know.

Q. Oh, come on, Michael.

A. I don’t know. God.

Q. You played enough of these games. You know

how the knives work.

A. They cut her.

Q. Is that a question?

A. I don’t know. I can’t really tell you.

Q. You know how knives work, Michael. That’s a

little insulting to say that in front of Ralph and I who

investigate these cases all the time. Right?

A. I guess.

Q. You guess?

CROWE v. WRISLEY 1063
A. I don’t know for sure. I guess it would be.

Q. So how is a knife used to kill somebody?

A. Maybe stab them.

Q. Where?

A. I don’t know.

Q. Well, where would you think? If someone was

going to die from being stabbed, where would they

be stabbed?

A. In the head.

Q. Okay. Where else? Is that the only place?

A. Stomach. I don’t know. The chest.

Q. The chest, in the head?

A. Yeah.

Q. Would they die from being stabbed in the stomach?

A. Eventually.

Q. Eventually?

A. Yes.

Q. Why?

A. They’d bleed to death.

Q. Would they?

1064 CROWE v. WRISLEY
A. I guess. I don’t know.

Q. Well, are you basing that on some kind of rationale or are you just taking a flier out of it?

A. I told you. I don’t remember what I did. I don’t

care if you think I’m just trying not to tell you. I

don’t care.

The detectives also followed up on the idea that Claytor

had introduced the day before: that Michael had killed his sister but did not remember. Throughout the entire 6-hour interview Michael repeatedly asserted that he did not remember

killing his sister, to which the detectives insisted, “I’m helping you remember,” and “I think you don’t want to remember.”

Earlier in the interview, Wrisley had also introduced the

idea that there were “two Michaels,” a “good Michael” and a

“bad Michael”: 

Q. Once everybody understands what’s been going

on, I know that people will be able to forgive,

Michael.

A. But I didn’t do it.

Q. You know, the good part of Michael didn’t do it.

A. I didn’t.

Q. The Michael that helps her with her math.

A. I didn’t. I didn’t do this.

Q. And I’m suggesting to you, Michael, that the

Michael that has an opponent to defeat who has an

CROWE v. WRISLEY 1065
incredible assortment of things at his disposal could

be responsible for this.

A. No. It’s not true. I didn’t do this.

Q. Help me understand, Michael.

A. I didn’t do this.

When Claytor took over the interview, he continued with

the theme of “two Michaels” and told him that people would

understand, and that he wouldn’t be held “to the same standards” because he was only 14. Michael eventually started to

be influenced by the “two Michaels” theory, as is evident

from his response to the following question:

Q. — what’s your greatest fear right now? What’s

the worst that you can imagine right now?

A. I’m afraid that there is someone else inside of me.

I don’t know who they are. I don’t know what they

do. I don’t—if what you’re saying is true, then it’s

like there is another person in me then. I don’t

remember anything.

Finally, the detectives began to tell Michael that if he confessed he would get help rather than go to jail. This was the

tactic that seems to ultimately have proved the most “effective.” Claytor told Michael:

Q. I’m not real sure how familiar you are with the

system, but kind of the way it works is if the system

has to prove it, yeah, it’s jail. If they don’t, then it’s

help. What that kinds of puts—or where that kind of

puts us is in a position of you have these two roads

to go. Which one are we going to go down?

A. I told you.

1066 CROWE v. WRISLEY
Q. What I’m really afraid of is that we’re going

down the make the system prove it. And I know

you’re smart enough to know that that can be done

quite easily.

Michael responded, “If I told you right now, I would be

lying. You’d find out eventually. The evidence would say it’s

a (unintelligible). My story would be wrong. Then what

would happen to me?” 

But the detectives persisted and ultimately Wrisley

extracted the following from Michael:

Q. Tell us.

A. If I tell you a story, the evidence is going to be

a complete lie.

Q. Well, then, tell us the story.

A. Well, I’ll lie. I’ll have to make it up.

Q. Tell us the story, Michael.

A. You want me to tell you a little story?

Q. Tell us the story. What happened that night?

A. Okay. I’m going to warn you right now. It is a

complete lie.

Q. Tell us the story.

A. Okay. This is true. I am extremely jealous of my

sister.

Q. Okay.

CROWE v. WRISLEY 1067
A. She’s always had a lot of friends and good friends

and stuff like that. She was friends with people my

age, all the popular girls and stuff like that. That’s

true. Okay.

. . . 

A. Okay. Here is the part where I’ll start lying. That

night I thought about her. I couldn’t take it anymore.

Okay. So I got a knife, went into her room and I

stabbed her. I left her on her bed, picked her up off

the bed, dropped her.

. . .

Q. How many times did you stab her?

A. It’s going to be a lie. Three times. 

. . .

Q. Tell me what the truth is.

A. The only reason I’m trying to lie here is because

you presented me with two paths. I’d rather die than

go to jail.

The detectives latched onto Michael’s story as a confession. Throughout the remainder of the interview they tried to

fill some of the holes in his story—including where he got the

knife and what he did with it afterwards—but Michael was

unable to give them any further information. At the end of the

interview Michael said, “Like I said, the only way I even

know I did this because she’s dead and because the evidence

says that I did. You could find someone else did it—and I

pray to God someone else did. I think it’s too late for that. I

think I did it.”

1068 CROWE v. WRISLEY
2. Aaron

Police first contacted Aaron Houser at his home on January

22, 1998. Aaron answered the door and said his parents were

not home. The police then interviewed Aaron for 30 to 45

minutes regarding his friendship with Michael. 

Aaron was interviewed a second time on January 27, 1998,

by Detective Wrisley at the Escondido police station. The

interview lasted approximately two hours. The interview primarily focused on Aaron’s perception of Michael’s relationship with his family. Wrisley asked Aaron whether Michael

ever talked about hurting his family and whether Aaron

thought Michael could have killed his sister. Aaron said he

didn’t think so. Aaron also told Wrisley that he had discovered that day that a knife he owned was apparently missing.5

On February 11, 1998, police arrested Aaron at his school

and searched his home and locker. After arresting him, the

police strip searched him, and then interrogated him for

approximately 9.5 hours at the Escondido police station. He

was interrogated, primarily by Detective McDonough, but

also by defendants Sweeney, Wrisley, and Claytor. 

In interrogating Aaron, the detectives used tactics similar to

those they used against Michael. McDonough began the interrogation with the stress voice analyzer, describing it has he

had for Michael. Eventually he began to ask Aaron to “theoretically” describe how he, Michael, and Joshua would each

respectively kill Stephanie, if they were going to do so.

McDonough suggested details to the story, through questions

regarding what clothing Aaron would wear and how he would

get rid of it, whether he would wear gloves, what time he

would pick, and how he would get into the house. Later,

McDonough told Aaron that Joshua and Michael had both

5Aaron had a collection of knives. His mother had reported to the police

earlier that day that she noticed that one of his knives was missing. 

CROWE v. WRISLEY 1069
said Aaron helped them kill Stephanie. Aaron denied it. Then

McDonough told Aaron that the computer stress voice analyzer indicated that he was definitely involved. At this point

Aaron began to even more vehemently protest his innocence:

A. Let me put it this way: I don’t know anything. I

don’t know who did. I don’t know a single thing. I’m

doing my best to tell the truth.

Q. Aaron, calm down.

A. I’m telling the truth to the best of my ability.

Q. Calm down.

A. How can I calm down? I’m being accused of

murder?

Q. Relax, Aaron.

A. How?

Q. Relax.

A. How? Relax how?

. . .

Q. You need to help yourself in the situation here,

son.

A. What do I do?

Q. Tell the truth.

A. I did and you said I lied.

Q. Yes.

1070 CROWE v. WRISLEY
A. Okay.

Q. You lied. You have lied.

McDonough also told Aaron they had physical evidence

against him and implied that they would soon uncover more.

When Detective Claytor took over the interview he began

to tell Aaron how much easier things would be for him if he

confessed:

Q. Here’s the situation. You put us into a position by

saying “Don’t know what you’re talking about. This

is all bogus. Wasn’t me. Didn’t do it.” It’s what we

call “The other dude did it.”

A. Uh-huh.

Q. Now what that does is it puts you in kind of a bad

light, because at some point you may face a jury of

average everyday citizens right off the street out

here. . . .

A jury has a real difficult time convicting people

of crimes, especially of this nature. Why? Because

they don’t want to believe that a person would do

this. So what they do is deny away the evidence and

look at the evidence and they say, “Good grief. How

can he possibly sit here and say he didn’t do it,

because look what we have? We have this evidence,

this evidence . . .

They want to see an apology. They want to see

someone who is willing to accept what’s occurred.

. . .

Q. Now, two ways to go. You can force me to make

you live with your denial, which I’ll do. No problem

CROWE v. WRISLEY 1071
at all. Or you can put me in a position to where I can

write on a piece of paper, “We have a 15-year-old

man here who made a very serious mistake. He’s

willing to talk to me, though. He’s willing to fix it.”

Aaron maintained his innocence through the end of the 9.5

hour interrogation, at which point the detectives arrested him

and read his Miranda rights for the first time.

3. Joshua6

On January 22, 1998, police went to Joshua Treadway’s

house to interview him. Joshua answered the door and said

that his parents were not at home. After entering the house,

the police noticed a knife on the couch. Joshua said the knife

belonged to his brother, though his brother later said it

belonged to Joshua. The police asked Joshua questions about

Michael and his friendship with Michael. The interview lasted

approximately one hour.

On January 27, 1998, police searched the Treadway house

and recovered a knife, which Aaron later identified as the

knife he had reported missing. That day, Joshua was interrogated for approximately 13.5 hours. The interview began

around 7:00 p.m. at Joshua’s home, continued around 9:00

p.m. at the Escondido police station, and concluded around

8:30 a.m. Joshua was interrogated by Detectives Claytor,

Sweeney, and McDonough. Additionally, defendant Blum

was present and provided advice to the detectives. Joshua was

never Mirandized during the course of the interrogation. 

The detectives employed similar techniques as they had

during the interrogations of Michael and Aaron. Detective

Claytor alternated between promising Joshua leniency and

threatening him with punishment. Detective McDonough took

6Although the Treadways were parties in the district court, they are not

parties to this appeal. 

1072 CROWE v. WRISLEY
over around 3:00 a.m. and used the computer stress voice analyzer, describing the device to Joshua in the same way as he

had to Michael and Aaron. Detective McDonough’s portion

of the interview continued for several hours and he repeatedly

denied Joshua’s requests for sleep. Ultimately Joshua broke

down and told McDonough that Aaron had given him the

knife used to kill Stephanie. At this point, McDonough told

him that the stress voice analyzer device indicated that he had

“passed.”

On January 31, 1998, Detectives Claytor and Anderson

convinced Joshua to call Aaron and accuse him of complicity

in Stephanie’s murder while they monitored the call. Aaron

denied any involvement. 

On February 10, 1998, Joshua was interrogated a third time

for approximately 12 hours, with a two-hour break, at the

Escondido police station, by Detectives Claytor and McDonough, with the consultation of Dr. Blum. The detectives

again used similar techniques and ultimately Joshua gave a

more in-depth confession, which, although detailed, was both

internally inconsistent and inconsistent with other information

the police had at their disposal. At the conclusion of the interview, the police arrested Joshua and Mirandized him for the

first time.

C. Pre-Trial Proceedings

Statements obtained from the boys during their interrogations were introduced during at least three pre-trial proceedings. First, in April 1998, a “Dennis H. Hearing,”

7

 was held

7Under California law, when a minor is taken into custody by a police

officer, he must be released within 48 hours from the time of his apprehension, unless within that time a petition is filed in the juvenile court or a

criminal complaint is filed with a court of competent jurisdiction explaining why the minor should be declared a ward of the court. See Cal. Welf.

& Inst. Code § 631. Such a hearing is called a “Dennis H. Hearing.” See

In re Dennis H., 19 Cal. App. 3d 350, 354 (Cal. App. 1971). 

CROWE v. WRISLEY 1073
and resulted in Aaron and Joshua spending several months in

jail while awaiting trial.8 The boys’ statements were introduced. The statements were next introduced during the grand

jury proceedings in May 1998. On May 22, 1998, the grand

jury issued indictments against the three boys for murder and

conspiracy to commit a crime. Finally, in July 1998, a “707

Hearing”

9

 was held to determine if the boys would be tried as

juveniles or adults. The boys’ statements were again introduced. 

On December 17, 1998, the state court held a suppression

hearing in which the court considered, amongst other motions

in limine, the defense’s motions to suppress the three boys’

statements. The court suppressed the majority of Michael’s

third interrogation and all of his fourth interrogation on the

ground of coercion. The court found that starting early in the

third interrogation, “there was commenced a coercive scheme,

whether intentional or unintentional; it culminated in the

adoption of what we have come to refer to as the ‘good

Michael, bad Michael’ approach. Where, in essence, the

defendant, Mr. Crowe, was told if he confessed, if he provided information, he would receive treatment.” The court

suppressed all of Aaron’s statements on the ground that Aaron

had not been Mirandized. Finally, the court suppressed Joshua’s second interrogation on the ground of coercion and the

pre-arrest portion of his third interrogation on the ground that

he had not been Mirandized. The court then set a trial date in

January 1999.

D. Dismissals of Indictments and Prosecution of Tuite

On October 27, 1998, pieces of Tuite’s clothing, which had

been collected when police first interviewed Tuite on January

21, 1998, were sent to a laboratory for forensic testing, at the

8The record is unclear as to when Michael was incarcerated. 

9A “707 Hearing” is held to determine whether a minor should be tried

in juvenile or adult court. See Cal. Welf. & Inst. Code § 707. 

1074 CROWE v. WRISLEY
joint request of Joshua Treadway’s defense attorney and the

prosecution. The clothing included the long-sleeved red shirt

Tuite had been wearing when police brought him in for questioning on January 21, 1998.10 On January 14, 1999, the forensic laboratory notified the prosecution that DNA results

showed that Tuite’s red shirt contained spots of Stephanie

Crowe’s blood. On February 25, 1999, the prosecution filed

a Motion to Dismiss the indictments against the boys. 

Tuite was eventually charged and tried for Stephanie

Crowe’s murder. On May 26, 2004, a jury convicted Tuite of

voluntary manslaughter.

E. § 1983 Action

After the charges against them were dismissed, the boys

and their families11 filed three separate complaints in state

court alleging violations of 42 U.S.C. § 1983 and various

state-law torts. The defendants removed the complaints to

federal court, and the district court consolidated the actions

and ordered the plaintiffs to file a joint complaint. The plaintiffs filed their Joint First Amended Complaint on April 24,

2000. The following defendants are parties to this appeal: the

City of Escondido and Escondido Police Detectives Mark

WRISLEY, Barry Sweeney, and Ralph CLAYTOR (collectively “the Escondido defendants”); the City of Oceanside and

Oceanside Police Detective Chris McDonough (collectively

“the Oceanside defendants”); Dr. Lawrence Blum; and Assistant District Attorney Summer Stephan. 

The Escondido defendants filed a motion to dismiss, which

was granted in part on July 26, 2000. Defendants then filed

10Tuite’s clothing had apparently been examined previously in April of

1998, but visual inspections did not detect any blood on Tuite’s red shirt.

11Michael, Stephen, Cheryl, Judith Ann, and Shannon Crowe; Aaron,

Margaret Susan, and Gregg Houser; and Joshua David, Zachary, Michael

Lee, and Tammy Treadway. 

CROWE v. WRISLEY 1075
multiple motions for summary judgment on qualified immunity grounds. The district court granted portions of these

motions on February 17, 2004. Crowe v. County of San

Diego, 303 F. Supp. 2d 1050 (S.D. Cal. 2004) (“Crowe I“).

The Escondido defendants subsequently filed motions for

summary judgment, again on qualified immunity grounds, as

to the remainder of the claims pending against them. The district court granted those motions, in part, on February 28,

2005. Crowe v. County of San Diego, 359 F. Supp. 2d 994

(S.D. Cal. 2005) (“Crowe II”). 

The Crowes and the Housers appeal the district court’s

grant of summary judgment, on qualified immunity grounds,

as to (1) Michael and Aaron’s Fifth Amendment claims, (2)

Michael and Aaron’s Fourteenth Amendment substantive due

process claims, (3) Michael and Aaron’s various Fourth

Amendment claims, (4) the Crowes’ and Housers’ Fourteenth

Amendment deprivation of familial companionship claims,

(5) Michael and Aaron’s defamation claims, and (6) the

Crowes’ and Housers’ claims of municipal liability against

the City of Escondido and the City of Oceanside. 

The Escondido defendants cross-appeal the district court’s

denial of summary judgment, on qualified immunity grounds,

as to (1) Fourth Amendment claims stemming from the nude

photographing of Cheryl, Stephen and Shannon Crowe, (2)

Fourth Amendment claims stemming from the taking of blood

samples from Cheryl and Stephen Crowe, (3) Fourth Amendment claims stemming from the detention of Cheryl and Stephen Crowe, and (4) the Crowes’ Fourteenth Amendment

deprivation of familial companionship claim based on the

placement of Michael and Shannon Crowe in protective custody. 

Defendants asserted qualified immunity in each of their

summary judgment motions. To determine whether a government employee is entitled to qualified immunity, we use a

two-part test. Saucier v. Katz, 533 U.S. 194, 201 (2001). First,

1076 CROWE v. WRISLEY
we must determine whether, viewed in the light most favorable to the plaintiff, the government employees violated the

plaintiff’s constitutional rights. Id. Then, if we determine that

a constitutional violation has occurred, the court must determine whether the rights were clearly established at the time

of the violation. Id. For each claim on which the district court

granted summary judgment, the district court held that there

was no constitutional violation, but that even if there was a

violation, it was not clearly established. 

We review de novo a district court’s decision to grant or

deny summary judgment on the ground of qualified immunity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004).

We must view the evidence “in the light most favorable” to

the plaintiffs to determine if there was no genuine issue as to

any material fact and whether the defendants were entitled to

judgment as a matter of law. Mueller v. Auker, 576 F.3d 979,

991 (9th Cir. 2009). In doing so, all justifiable inferences are

to be drawn in favor of the plaintiffs. Id.

II. Fifth Amendment Claims

[1] Michael and Aaron allege that defendants Blum, Wrisley, Sweeney, Claytor, McDonough, and Anderson violated

their Fifth Amendment privilege against compelled selfincrimination. The district court granted summary judgment

in favor of defendants, relying primarily on its interpretation

of Chavez v. Martinez, 538 U.S. 760 (2003). Crowe I, 303 F.

Supp. 2d at 1091-93; Crowe II, 359 F. Supp. 2d at 1030. Prior

to Chavez, the rule in our Circuit was that a § 1983 cause of

action for a violation of the Fifth Amendment’s SelfIncrimination Clause arose as soon as police employed coercive means to compel a statement. See Cooper v. Dupnik, 963

F.2d 1220, 1242 (9th Cir. 1992). In Chavez, the Supreme

Court held that mere coercion does not create a cause of

action under § 1983 for a violation of the Self-Incrimination

Clause, absent use of the compelled statement in a criminal

case. 

CROWE v. WRISLEY 1077
As we have recently held, however, Chavez does not preclude § 1983 claims for Fifth Amendment violations when the

coerced confession is used in certain pre-trial proceedings.

See Stoot v. City of Everett, No. 07-35425, 2009 WL

2973229, at *13 (9th Cir. Sept. 18, 2009). Because statements

obtained during Michael’s and Aaron’s interrogations were

used in pre-trial proceedings of the type discussed in Stoot,

namely the “Dennis H.” hearing, the grand jury proceedings,

and the 707 hearing, we must reverse the district court’s grant

of summary judgment.

A

We begin with Chavez, which provides the underpinnings

of our analysis. Chavez involved a § 1983 case arising out of

the coerced confession of Oliverio Martinez. Two police officers became involved in an altercation with Martinez and one

of the officers ultimately shot Martinez several times, causing

severe injuries including blindness and paralysis. Chavez, 538

U.S. at 764. The officers then arrested Martinez and sent him

to a hospital with paramedics. Id. At the hospital, another officer, Chavez, questioned Martinez while he was receiving

medical treatment. Id. During the questioning, Martinez was

in severe pain and stated several times that he was dying. Id.

at 784-86 (Stevens, J., concurring in part and dissenting in

part). Martinez was never Mirandized and was never ultimately charged with a crime. Id. at 764.

Martinez filed suit under § 1983, alleging that the questioning violated his Fifth Amendment right to be free from compelled self-incrimination, as well as his Fourteenth

Amendment substantive due process rights. Id. at 764-65. The

district court granted summary judgment in favor of Martinez

as to Chavez’s qualified immunity defense, and we affirmed.

Martinez v. Oxnard, 270 F.3d 852 (9th Cir. 2001). The

Supreme Court reversed. Both Justices Thomas and Souter

authored opinions supporting the judgment as to the Fifth

1078 CROWE v. WRISLEY
Amendment question; neither garnered a majority of the

Court.

Announcing the judgment of the Court, Justice Thomas

noted that the text of the Fifth Amendment protects a person

from being “compelled in any criminal case to be a witness

against himself.” Chavez, 538 U.S. at 766 (quoting U.S.

Const. amend. V). Justice Thomas opined that “criminal case”

does not encompass the entire criminal investigatory process,

and “at the very least requires the initiation of legal proceedings.” Id. However, the opinion stopped short of defining

“criminal case.” Id. at 766-67 (“We need not decide today the

precise moment when a ‘criminal case’ commences; it is

enough to say that police questioning does not constitute a

‘case.’ ”). 

The opinion concluded that Martinez had no cause of

action under the Fifth Amendment, because “it is not until

[the compelled statements’] use in a criminal case that a violation of the Self-Incrimination Clause occurs.” Id. at 767. Martinez’s statements were not used in any criminal proceeding.

Justice Souter’s opinion discussed the scope of the Fifth

Amendment’s Self-Incrimination Clause and concluded that

Martinez did not state a § 1983 cause of action for a Fifth

Amendment violation. However, Justice Souter presented a

different analysis as to why Martinez did not have a cause of

action. Justice Souter opined that the mere fact that Martinez’s statements were not used in a “criminal case” is not

enough to doom his claim. Id. at 777. While the “core of Fifth

Amendment protection” concerns the use of a compelled

statement in a criminal case, the Fifth Amendment also protects in situations where “the core guarantee, or the judicial

capacity to protect it, would be placed at some risk in the

absence of such complementary protection.” Id. at 777-78.

This is why, Justice Souter explained, the Fifth Amendment

also provides protection in “non-core” situations such as comCROWE v. WRISLEY 1079
pelled testimony in a civil case. Id. (citing McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)).12

[2] Recently, we have clarified “the precise moment when

a ‘criminal case’ commences.” In Stoot, we held that “[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 prosecution may proceed,

and to determine pretrial custody status.” Stoot, 2009 WL

2973229, at *13.

12Part II of Justice Souter’s opinion, which was the only part of any of

the six opinions joined by a majority of the Court, held that Martinez

might be able to pursue a claim for violation of his substantive due process

rights and remanded on that issue. 

1080 CROWE v. WRISLEY
Volume 2 of 2

CROWE v. WRISLEY 1081
B

With that background, we consider the procedural posture

in the instant case. In granting summary judgment for defendants, the district court concluded that Michael and Aaron’s

Fifth Amendment claims failed for two reasons. First, the district court interpreted Chavez to require that a compelled

statement be introduced in a criminal trial in order to create

a Fifth Amendment cause of action. Crowe I, 303 F. Supp. 2d

at 1091. Second, the district court concluded that a Fifth

Amendment cause of action can never arise against a police

officer, because the harm is the introduction of the statement

at trial and the police officer will never be the proximate

cause of that harm. Id. at 1091-92. The district court did not

have the benefit of Stoot when issuing its opinion. Nevertheless, Stoot makes clear that the district court erred in both conclusions. We thus reverse the grant of summary judgment as

to Michael and Aaron’s Fifth Amendment claims.13

[3] In contrast to the facts in Chavez, the prosecution of

Michael and Aaron did not cease with the boys’ interrogations. Rather, the boys were indicted and the case against

them continued for a year, up and until the eve of trial. During

this time, statements obtained during the boys’ interrogations

were used in several pre-trial proceedings, including a “Dennis H. Hearing,” the grand jury proceedings, and a “707 Hearing.” Following Stoot, we hold that the use of Michael’s and

Aaron’s statements in the pre-trial proceedings gives rise to a

Fifth Amendment cause of action.

13See infra Part VIII.B for discussion of the claims against Blum. 

CROWE v. WRISLEY 1085
[4] All three pre-trial proceedings in which Michael and

Aaron’s statements were used gave rise to a Fifth Amendment

cause of action. The “707 hearing” was held to determine

whether the boys would be incarcerated in Juvenile Detention

prior to trial. Pre-trial incarceration is a deprivation of liberty

and an important part of any “criminal case.” 

[5] A grand jury proceeding is at the heart of a “criminal

case.” Without an indictment, there is no trial. In considering

a similar question, albeit in a different context, the Supreme

Court held that the Fifth Amendment applies in the grand jury

context even if the evidence is not used at trial. United States

v. Hubbell, 530 U.S. 27, 41 (2000). In Hubbell, the Court considered whether the use of documents, produced by a defendant pursuant to a subpoena, to obtain an indictment against

that defendant violated his Fifth Amendment right to be free

from self-incrimination. The Court held that it did, id. at 41,

and held that the documents need not be introduced at trial to

complete the Fifth Amendment violation, id. at 43. The government had argued that it would not need to introduce the

documents used to indict in the actual trial and that the defendant’s Fifth Amendment rights would therefore never be violated. The Court firmly rejected that argument: “In sum, we

have no doubt that the constitutional privilege against selfincrimination protects the target of a grand jury investigation

from being compelled to answer questions designed to elicit

information about the existence of sources of potentially

incriminating evidence.” Id. at 43. Applying Hubbell in this

context leads to a similar conclusion.

[6] Finally, a “Dennis H. hearing” is yet another important

part of a “criminal case.” The outcome of such a hearing is

not merely a choice of venue, but a determination of maximum punishment. As the California Supreme Court has noted,

“the certification of a juvenile offender to an adult court has

been accurately characterized as ‘the worst punishment the

juvenile system is empowered to inflict.’ ” Ramona R. v.

Superior Court, 37 Cal. 3d 802, 810 (1985) (quoting Note,

1086 CROWE v. WRISLEY
Separating the Criminal from the Delinquent: Due Process in

Certification Procedure, 40 S. Cal. L. Rev. 158, 162 (1967)).14

Thus, all of the pre-trial proceedings in which plaintiffs’ Fifth

Amendment rights were violated give rise to § 1983 claims.

The district court also granted summary judgment on the

ground that Michael and Aaron’s Fifth Amendment claims

failed because the police officer defendants were not the proximate cause of the harm. Crowe I, 303 F. Supp. 2d at 1091-92.

The court reasoned that harm only arises when a coerced

statement is admitted in court, whether during a trial or pretrial proceeding. Thus, “it cannot be said that a police officer

is the proximate cause of such a violation . . . [because] it is

the prosecutor, not the police officer, who decides to introduce and actually introduces the statement into evidence.

Moreover, . . . it is the trial judge who ultimately determines

whether the statement will be admitted.” Id. at 1091. This

conclusion is foreclosed by our decision in Stoot. See 2009

WL 2973229, at *13-*14.

The district court’s reasoning would effectively bar any

§ 1983 action for a violation of the Self-Incrimination Clause.

A police officer will never “actually introduce[ ] the statement

into evidence” and prosecutors and judges have absolute

immunity for any act performed in their prosecutorial and

judicial capacities. See Stump v. Sparkman, 435 U.S. 349

(1978) (judicial immunity); Imbler v. Pachtman, 424 U.S. 409

(1976) (prosecutorial immunity). Such a rule is in direct conflict with “[t]he purpose of § 1983 [which] is to deter state

actors from using the badge of their authority to deprive individuals of their federally guaranteed rights.” McDade v. West,

223 F.3d 1135, 1139 (9th Cir. 2000). If a plaintiff could never

bring a § 1983 action for a violation of the Self-Incrimination

Clause, the statute would be robbed of its purpose.

14Michael additionally argues that the use of his statements at Tuite’s

trial creates a cause of action. This argument has no merit because

Michael’s liberty was neither infringed nor threatened by the use of his

statements in Tuite’s trial. 

CROWE v. WRISLEY 1087
Further, in the context of § 1983 claims, we have explained

that “[t]he requisite causal connection can be established not

only by some kind of direct personal participation in the

deprivation, but also by setting in motion a series of acts by

others which the actor knows or reasonably should know

would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). When a

police officer questions a suspect, he knows that any statement the suspect gives may be used to prosecute that suspect.

A fortiori, he knows that an obtained confession will almost

certainly be used to prosecute. Thus, while the officer may not

actually introduce the statement into court, coercing the confession “set[s] in motion a series of acts by others which the

[officer] knows or reasonably should know would cause” the

statement to be introduced. See Stoot, 2009 WL 2973229, at

*14 (“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.’ ” (quoting Higazy v. Templeton, 505 F.3d 161, 177

(2d Cir. 2007) (alterations in original))). The defendants were

unquestionably a proximate cause of the violations of Michael

and Aaron’s Fifth Amendment rights.

[7] In summary, we hold that a Fifth Amendment cause of

action against the relevant defendants arose when Michael

and Aaron’s coerced statements were introduced against them

during pre-trial proceedings.

[8] Further, the defendants are not entitled to qualified

immunity. In 1998, when defendants interrogated Michael

and Aaron, the clearly established rule in this Circuit was that

a § 1983 cause of action for a violation of the Fifth Amendment’s Self-Incrimination Clause arose as soon as police

employed coercive means to compel a statement. See Cooper,

963 F.2d at 1242; see also Stoot, 2009 WL 2973229, at *14-

15) (denying qualified immunity for a similar claim). As such,

1088 CROWE v. WRISLEY
defendants cannot claim the protection of qualified immunity.

See Saucier, 533 U.S. at 201.

III. Substantive Due Process Claims

[9] The Due Process Clause of the Fourteenth Amendment

protects against any government conduct that “shocks the

conscience.” Rochin v. California, 342 U.S. 165, 172 (1952).

Michael and Aaron allege that defendants Blum, Wrisley,

Sweeney, Claytor, McDonough, and Anderson violated their

Fourteenth Amendment substantive due process rights by

using interrogation techniques so coercive as to “shock the

conscience.” The district court granted summary judgment for

defendants, concluding that the defendants’ actions did not

“shock the conscience.” Crowe I, 303 F. Supp. 2d at 1096;

Crowe II, 359 F. Supp. 2d at 1034.

We have previously explained that police conduct need not

include physical violence to violate substantive due process.

See, e.g., Cooper, 963 F.2d at 1249-50, abrogated on other

grounds by Chavez, 538 U.S. at (holding that police interrogation plan to ignore suspect’s requests for an attorney and

relentlessly interrogate him violated the suspect’s substantive

due process rights); Wood v. Ostrander, 879 F.2d 583, 589

(9th Cir. 1989) (“While brutality by police or prison guards

is one paradigmatic example of a substantive due process violation, it does not exhaust the possibilities.”). It has also long

been established that the constitutionality of interrogation

techniques is judged by a higher standard when police interrogate a minor. See In re Gault, 387 U.S. 1, 55 (1967) (In an

interrogation of a minor, “the greatest care must be taken to

assure that the admission was voluntary, in the sense not only

that it was not coerced or suggested, but also that it was not

the product of ignorance of rights or of adolescent fantasy,

fright or despair.”).

The Crowes and the Housers presented testimony from several expert and lay witnesses in support of their argument that

CROWE v. WRISLEY 1089
the interrogations of Michael and Aaron violated the boys’

substantive due process rights. Dr. Richard Leo, an expert in

coerced confessions, described Michael’s interrogation as

“the most psychologically brutal interrogation and tortured

confession that I have ever observed.” Dr. Calvin Colarusso,

Director of Child Psychiatry Residence Training Program at

the University of California, San Diego, conducted a psychiatric evaluation of Michael and characterized his interrogation

as “the most extreme form of emotional child abuse that I

have ever observed in my nearly forty years of observing and

working with children and adolescents.” Robert Puglia, former Chief Deputy District Attorney for Sacramento County,

testified in a sworn declaration that Michael’s statements were

the product of a “coercive police scheme.” And finally, a juror

in Tuite’s criminal trial, who viewed the videotapes of the

boys’ interrogations, described the interrogations as “brutal

and inhumane” and “psychological torture.”

[10] One need only read the transcripts of the boys’ interrogations, or watch the videotapes, to understand how thoroughly the defendants’ conduct in this case “shocks the

conscience.” Michael and Aaron—14 and 15 years old, respectively15—were isolated and subjected to hours and hours of

interrogation during which they were cajoled, threatened, lied

to, and relentlessly pressured by teams of police officers.

“Psychological torture” is not an inapt description. In Cooper,

we held that police violated an adult suspect’s substantive due

process rights when they “ignored Cooper’s repeated requests

to speak with an attorney, deliberately infringed on his Constitutional right to remain silent, and relentlessly interrogated

him in an attempt to extract a confession.” 963 F.2d at 1223.

The interrogations of Michael and Aaron are no less shocking.

Indeed, they are more so given that the boys’ interrogations

were significantly longer than Coopers’s,16 the boys were

15Aaron was interrogated on his fifteenth birthday. 

16Cooper was interrogated once for four hours. Cooper, 963 F.2d at

1237. Michael was interrogated four times and Aaron was interrogated

twice, each for over 10 hours. 

1090 CROWE v. WRISLEY
minors, and Michael was in shock over his sister’s brutal murder. The interrogations violated Michael’s and Aaron’s Fourteenth Amendment rights to substantive due process. 

[11] Further, defendants are not entitled to qualified immunity because it was clearly established, at the time of the boys’

interrogations, that the interrogation techniques defendants

chose to use “shock the conscience.” Defendants had the benefit of this Court’s holding in Cooper, as well as Supreme

Court case law directing that the interrogation of a minor be

conducted with “the greatest care,” In re Gault, 387 U.S. at

55. Just as in Cooper, here, “[q]ualified immunity is manifestly inapplicable.” 963 F.2d at 1251.

IV. Probable Cause Claims

A. Michael’s Arrest

Michael was arrested on January 23, 1998, after his fourth

and final interrogation. Crowe I, 303 F. Supp. 2d at 1059.

Michael alleges that, considering all information known to the

officers at the time of his arrest, there was no probable cause

to arrest him. The district court granted summary judgment in

favor of defendants. Crowe II, 359 F. Supp. 2d at 1007. We

affirm the district court on the alternate grounds that the

defendants were entitled to qualified immunity as to this

claim.

[12] “Probable cause for a warrantless arrest arises when

the facts and circumstances within the officer’s knowledge are

sufficient to warrant a prudent person to believe that the suspect has committed . . . an offense.” Barry v. Fowler, 902

F.2d 770, 773 (9th Cir. 1990) (internal quotation marks omitted). In determining whether there was probable cause to

arrest, we look to “the totality of circumstances known to the

arresting officers, [to determine if] a prudent person would

have concluded there was a fair probability that [the defendant] had committed a crime.” United States v. Smith, 790

CROWE v. WRISLEY 1091
F.2d 789, 792 (9th Cir. 1986). While evidence supporting

probable cause need not be admissible in court, it must be “legally sufficient and reliable.” Franklin v. Fox, 312 F.3d 423,

438 (9th Cir. 2002). As we have discussed, see supra Parts III

and IV, the interrogations of Michael violated his Fifth and

Fourteenth Amendment rights. As the district court properly

concluded, such coerced confessions are legally insufficient

and unreliable and thus cannot factor into the probable cause

analysis.

Excluding Michael’s coerced statements, at the time of

Michael’s arrest, police had the following information which

could support a theory that Michael was responsible: (1)

Michael stated he thought Stephanie’s door was closed at a

time—4:30 a.m.—when the officers could reasonably believe

her body was lying in her doorway blocking the door;17 (2) no

one else in the house heard anyone enter or exit the house during the night;18 and (3) the family dog did not bark during the

night. Crowe II, 359 F. Supp. 2d at 1007-17. On the other

hand, the police also had the following information which

suggests that someone other than Michael could have been

responsible: (1) eye witness accounts had placed Richard

Tuite in the Crowe’s neighborhood and described him as loud,

drunk or high, agitated, and knocking on doors looking for

“Tracy”; (2) just before 10:00 p.m. an officer investigating the

complaints about Tuite saw a door to the Crowe house shut

but did not see who shut it; (3) the Crowe family reported that

17There is some dispute among the parties regarding whether Stephanie’s body was actually in the doorway—preventing the door from being

closed—at 4:30 a.m. However, given that her body was in that position

when paramedics and police arrived a couple hours later and no one seems

to have clearly stated at the time that someone moved the body, a reasonable police officer certainly could have believed that Stephanie’s body was

in that position from the time she died until the time she was discovered

the next morning. 

18There was also no sign of forced entry, but this fact is largely negated

by the fact that at least some doors and windows to the house were

unlocked. 

1092 CROWE v. WRISLEY
everyone was in bed before 10:00 p.m.; (4) an outside door

to the master bedroom and the window in Stephanie’s room

were not locked during the night. Although “police may rely

on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.” United States v. Ortiz-Hernandez, 427

F.3d 567, 574 (9th Cir. 2005).

We decline to determine whether the police had sufficient

probable cause to arrest Michael. Instead, we exercise our

“sound discretion” and address the second prong of the qualified immunity analysis: whether the unconstitutionality of the

officers’ conduct was clearly established. See Pearson, 129 S.

Ct. at 818. We conclude that it was not.

[13] The Supreme Court has held that “it is inevitable that

law enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present.” Anderson v. Creighton, 483 U.S. 635, 641 (1987). When that happens, the officials “should not be held personally liable.” Id.

We have held that officers are immune from suit “when they

reasonably believe that probable cause existed, even though it

is subsequently concluded that it did not, because they ‘cannot

be expected to predict what federal judges frequently have

considerable difficulty in deciding and about which they frequently differ among themselves.’ ” Smiddy v. Varney, 665

F.2d 261, 299 (9th Cir. 1981) (quoting Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 456 F.2d

1339, 1349 (2d Cir. 1972) (Lumbard, J., concurring)), overruled on different grounds by Beck v. City of Upland, 527

F.3d 853, 865 (9th Cir. 2008). 

[14] Defendants are entitled to qualified immunity because

they could have reasonably believed that probable cause

existed. Michael had stated that when he woke up in the middle of the night he saw nothing unusual, even though Stephanie’s room was near Michael’s room and the detectives

believed that by that time, Stephanie was dead in her doorCROWE v. WRISLEY 1093
way. In addition, there were no signs of forced entry, suggesting that the murderer might have had access to the inside of

the house. Finally, the information that the officers had

regarding Tuite was not sufficiently strong to compel a reasonable officer to believe that Michael was not the most likely

suspect.

In sum, although we make no judgment on whether “the

facts and circumstances within the officer’s knowledge [were]

sufficient to warrant a prudent person to believe that” Michael

committed the murder, Barry, 902 F.2d at 773, we hold that

the officers are entitled to qualified immunity on this claim

because a reasonable officer could have believed that probable cause existed.

B. Aaron’s Arrest

[15] Aaron similarly challenges the sufficiency of the probable cause justifying his arrest on February 11, 1998. The district court granted summary judgment in favor of defendants.

Crowe I, 303 F. Supp. 2d at 1085. Because police had additional information suggesting Aaron’s involvement by the

time of his arrest, we affirm the district court’s conclusion

that there was sufficient probable cause.

In addition to the information available at the time of

Michael’s arrest, the police also had the benefit of the following information implicating Aaron when they arrested him:

(1) Joshua’s statement that Aaron had given him a knife and

told him that the knife was the knife used to kill Stephanie

and that Aaron had participated in the killing with Michael19

(2) the knife used to kill Stephanie fit the description of

Aaron’s knife; (3) Aaron’s knife was found under Joshua’s

bed. Id. at 1084-85. This information—even in light of the

19The district court concluded that this part of Joshua’s February 10,

1998 statement was uncoerced. Id. at 1083. Michael and Aaron have not

challenged this finding. 

1094 CROWE v. WRISLEY
information regarding Tuite—is sufficient to cause a prudent

person to conclude that there was a reasonable possibility that

Aaron was involved in Stephanie’s death. The district court

properly granted summary judgment in favor of defendants.

C. Searches of Aaron’s Home

Police twice obtained search warrants and searched the

Houser residence, on January 27, 1998 and February 11,

1998. Id. at 1079, 1082. The district court held that both

search warrants were supported by probable cause. Id. at

1079-80, 1082-84. Aaron argues the district court erred

because police deliberately made material misrepresentations

in obtaining the search warrants.

Probable cause exists when “given all the circumstances set

forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983). In

reviewing a search warrant on probable cause grounds, this

Court, like the district court, is “limited to the information and

circumstances contained within the four corners of the underlying affidavit.” United States v. Stanert, 762 F.2d 775, 778,

amended on other grounds, 769 F.2d 1410 (9th Cir. 1985).

The evidence in the affidavit need not necessarily be admissible, but must be “legally sufficient and reliable.” Franklin,

312 F.3d at 438. 

[16] A misrepresentation in the affidavit constitutes a violation of the Fourth Amendment if the misrepresentation is

material. See Franks v. Delaware, 438 U.S. 154, 171-72

(1978). Misrepresentations can be affirmative or based on

omission. Affirmative misrepresentations are material only if

there is no probable cause absent consideration of the misrepresented facts. Id. A misrepresentation based on an omission

is material only where the omitted facts “cast doubt on the

existence of probable cause.” United States v. Garza, 980

F.2d 546, 551 (9th Cir. 1992) (internal quotation marks omitCROWE v. WRISLEY 1095
ted). If a plaintiff is able to demonstrate that a warrant was

issued as the result of a material misrepresentation, a police

officer defendant may still be entitled to summary judgment

on qualified immunity grounds, unless the plaintiff can also

demonstrate that the police officer deliberately falsified information presented to the magistrate or recklessly disregarded

the truth. Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995).

Thus, to determine whether the two warrants were supported by probable cause, we must exclude any misrepresentation contained in supporting affidavits, add any information

which was improperly omitted from the affidavits, and then

determine whether the remaining information is sufficient to

create probable cause. We conclude that only the second warrant was supported by sufficient probable cause, but also that

the first warrant does not conclusively demonstrate a deliberate falsification of information or reckless disregard for the

truth such that defendants are entitled to qualified immunity.

We therefore, affirm the district court’s grant of summary

judgment as to both warrants.

1. January 27 Search

The affidavit in support of the January 27 warrant contained the following information, as summarized by the district court, none of which can fairly be characterized as a

misrepresentation:

Defendant Claytor told Detective Han that multiple

stab wounds were found on Stephanie’s body and

those wounds were consistent with a 5-6 inch knife

blade. Through interviews, the investigation revealed

that Michael Crowe and Aaron Houser are friends.

On 1-22-98, detectives Lanigan and Naranjo interviewed Aaron Houser at his residence. Aaron told

Detective Naranjo and Lanigan that he and Michael

had been friends for over a year and had mutual

interest in computer games and in medieval fantasy

1096 CROWE v. WRISLEY
role play games as well as in weapons, including

swords, knives, dirks and daggers. Aaron told the

detectives that Michael knew that he had a medieval

sword and knife collection but that he had never lent

Michael any of his collection. On 1-27-98, Detective

J. Lanigan received a telephone call from Margaret

Houser, Aaron’s mother. Margaret Houser told

Detective Lanigan that Aaron had checked his medieval sword and knife collection and that one of the

knives was missing. The missing knife was

described as being stainless steel in color, with black

plastic inserts on the handle and a 4-5 inch blade that

came to a point and was sharpened. The knife was

further described as having a hand stop and has

indentations to facilitate a firmer grip.

Crowe I, 303 F. Supp. 2d at 1078. This information is sufficient to establish probable cause to search the Houser residence. However, we must also determine whether police

made any material omissions in the affidavit which would

cast doubt on the existence of probable cause. 

[17] Aaron argues that police deliberately omitted material

information regarding Tuite and the fact of unlocked doors

and windows in the Crowe house. It is true that there was

information known to the police at the time of the affidavit

that now appears material, particularly the actions of Tuite,

that the police did not include in the affidavit. “[W]here omissions are involved materiality may not have been clear at the

time the officer decided what to include in, and what to

exclude from, the affidavit. In such cases, when it is not plain

that a neutral magistrate would not have issued the warrant,

the shield of qualified immunity should not be lost, because

a reasonably well-trained officer would not have known that

the misstatement or omission would have any effect on issuing the warrant.” Lombardi v. City of El Cajon, 117 F.3d

1117, 1126 (9th Cir. 1997). 

CROWE v. WRISLEY 1097
California Municipal Judge Ramirez, who signed the warrant, stated later that had he known “that the sliding glass door

in the bedroom was unlocked and partially open, and that a

transient had been knocking on doors looking for a female I

would have asked more questions and required more information before signing the search warrant.” While this would suggest it is plain the magistrate would not have issued the

warrant, the even unconscious benefit of hindsight cannot be

overlooked here. For example, at the time, Cheryl Crowe’s

testimony indicated that she was in her bedroom, awake, until

11 p.m., which is the latest time Stephanie could have been

alive. Therefore, it was not necessarily reckless for police to

assume no one could have entered through the door while

Cheryl was awake, and she was awake during the entire time

Stephanie could have been murdered.

[18] There appears to be enough uncertainty around the

state of the windows and doors that given the information

known to the police at that time, it would not have been plain

that any magistrate would not have issued the warrant, even

if it appears now, given all the information, that perhaps the

warrant should not have issued. Therefore, while not deciding

whether the omissions in the affidavit were sufficiently material misrepresentations to constitute a violation of the Fourth

Amendment,20 we find the defendants entitled to qualified

immunity on this point, and affirm the district court’s grant of

summary judgment.

2. February 11 Search

The February 11 search warrant was based on: (1) the fact

that Michael was arrested for Stephanie’s murder and

Michael’s friendship with Aaron and Joshua; (2) the first

20Here we exercise the discretion given in the Supreme Court’s recent

decision, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), to decide the

issue of whether the violation was clearly established without deciding

whether there was actually a violation in the case.

1098 CROWE v. WRISLEY
interview of Joshua, at his home, during which a knife was

seen in his possession; (3) the search of the Treadway residence which uncovered a knife that Aaron had reported missing; (4) the January 27 search of the Houser residence; (5)

information gained from Joshua’s statements during interrogation. Crowe I, 303 F. Supp. 2d at 1082-83. Some of the

information gained during Joshua’s interrogation must be

excluded. See Franklin, 312 F.3d at 438 (information in a

supporting affidavit must be “legally sufficient and reliable”).

As discussed previously, the district court determined that the

latter portion of Joshua’s February 10 interrogation was

coerced.21 See Crowe I, 303 F. Supp. 2d at 1081. During the

uncoerced part of his interrogation, Joshua stated that Aaron

had given him a knife and told him that the knife was used to

kill Stephanie and that he (Joshua) had agreed to hide the

knife. Id. Any other information, which was gained as a result

of coercion, must be excluded from the probable cause analysis. Any information gained during the January 27 search of

the Houser residence must also be excluded, as there was

insufficient probable cause to search the house at that time.

[19] Thus, the information properly included in the affidavit was Michael’s arrest, the search of the Treadway residence, the initial interview of Joshua, and the information

from the uncoerced portion of Joshua’s February 10 interrogation. Evaluating the information as a whole, there was a fair

probability that evidence related to the death of Stephanie

Crowe would be found at the Houser residence. See Gates,

462 U.S. at 238-39. The search warrant was supported by sufficient probable cause. Accordingly, we affirm the district

court’s grant of summary judgment as to the February 11

search.

21Defendants have not disputed this finding on appeal. 

CROWE v. WRISLEY 1099
V. Strip Searches

On January 21, 1998, Michael, Cheryl, Stephen, and Shannon Crowe were strip searched and photographed nude or

semi-nude. The Crowes argue that these searches violated

their Fourth Amendment rights. In response, defendants argue

that the searches were conducted pursuant to valid consent

and were thus constitutional. See United States v. Patayan

Soriano, 361 F.3d 494, 501 (9th Cir. 2004) (searches conducted pursuant to valid consent are constitutional). The district court granted summary judgment in favor of defendants

with respect to Michael’s claim, but denied summary judgment with respect to the claims of the remainder of the Crowe

family. Crowe II, 359 F. Supp. 2d at 1021-23. We affirm.

[20] Michael argues that although he did consent to the

strip search, his consent was obtained by coercion. It has long

been established that consent to search must be given freely

and voluntarily. See, e.g., Bumper v. North Carolina, 391 U.S.

543, 548 (1968). Whether consent was voluntarily given must

be determined by evaluating the totality of the circumstances

and the government has the burden to proof. Patayan Soriano,

361 F.3d at 501. However, at his deposition Michael testified

as follows:

Q. Do you recall anything else your father said about

the subject of the photographs?

A. Later, right before he did it, he told us to go ahead

and do it and help them out. Just do whatever we

could to help.

Q. Did he say why he wanted you to go ahead and

do the photos to help out?

A. He just told us to go do the photos to help out.

Q. When he said to help out, did you understand that

to mean that he was asking you to go ahead with the

1100 CROWE v. WRISLEY
photographs to help the officers determine what had

happened to Stephanie?

A. Yes.

Q. Were you willing to do that then?

A. Yes.

Q. Then did you voluntarily partake in the photographing process?

A. Yes.

[21] Although Michael argues that his father was told that

his family would be arrested if he didn’t consent to the search,

Michael does not allege that he was told anything of the sort

by either his father or the police. In light of Michael’s deposition testimony and the absence of any other evidence in the

record suggestive of coercion, there is no material issue of

genuine fact as to whether Michael validly consented to the

search. The district court thus properly granted summary

judgment in favor of defendants.22

[22] The record does, however, create a genuine issue of

material fact as to whether Cheryl, Stephen, and Shannon

Crowe validly consented to their strip searches. The Escondido defendants cite deposition testimony from Michael and

Shannon to support their argument that the entire Crowe family consented to strip searches. Specifically, they identify

Michael’s statement that “[my father] just told us to do the

photos to help out,” and Shannon’s statement that “I just went

along with it because I thought it would help.” These two

statements are not sufficient to meet the government’s burden

22Michael additionally argues that he was too young to consent to a strip

search. However, he cites no authority suggesting that a 14-year-old cannot consent to a strip search and we are aware of none. 

CROWE v. WRISLEY 1101
of proving that any consent from the Crowes was freely and

voluntarily given, nor are they sufficient to demonstrate that

a reasonable officer would have thought that the Crowes

freely and voluntarily consented to the searches. The district

court properly denied summary judgment.

VI. Cheryl and Stephen Crowe’s Additional Fourth

Amendment Claims

Cheryl and Stephen Crowe claim two further Fourth

Amendment violations. First, they allege that warrants ordering them to provide blood samples were not supported by

probable cause. Second, they allege that they were unlawfully

detained in the Escondido police station on the day of Stephanie’s murder. The district court denied summary judgment to

defendants on both counts, Crowe II, 359 F. Supp. 2d at 1023-

26, and we affirm.

A. Blood Samples

On February 5, 1998, Officer Claytor sought and obtained

search warrants for blood samples from Cheryl and Stephen.

Crowe II, 359 F. Supp. 2d at 1023. On February 6, 1998,

Cheryl and Stephen provided blood samples pursuant to the

warrants. Id. The district court held that the warrants were not

supported by probable cause because the evidence was sought

to prove that an individual other than Cheryl or Stephen committed the crime. Id. at 1023-24. The district court denied

qualified immunity, concluding that it was clearly established

that probable cause must be particularized with respect to the

person to be searched or seized. Id.

The Escondido defendants argue that they are entitled to

qualified immunity for two reasons. First, they argue that

Cheryl and Stephen consented to having their blood drawn,

based on deposition testimony from Stephen in which he

stated that they would have cooperated with a request for

blood in the absence of a search warrant. This argument is

1102 CROWE v. WRISLEY
unavailing because the Crowes did not give consent, they submitted to a search warrant. Crowe II, 359 F. Supp. 2d at 1023.

Defendants cannot hide behind a consent defense when no

such consent was given.

[23] Second, the Escondido defendants argue that the district court erred in determining that the search warrants were

not supported by probable cause. The affidavit in support of

the warrants contained the following information: 

(1) that Stephanie Crowe had been stabbed to death

in her home; (2) that Cheryl and Stephen Crowe

were in the house at the time of Stephanie’s death;

(3) that blood analysis would tend to show that a

“particular” (but unspecified) person committed the

murder; and (4) that to have valid test results, all persons that had contact with the victim needed to be

eliminated as a source of the blood. 

Id. Defendants argue, as they did before the district court, that

the affidavit was supported by probable cause because the

blood was sought to prove that someone other than Cheryl or

Stephen killed Stephanie. As the district court noted, the

Supreme Court and this Court have both long held that probable cause must be particularized with respect to the person to

be searched or seized. See, e.g., Ybarra v. Illinois, 444 U.S.

85, 91 (1979) (“Where the standard is probable cause, a

search or seizure of a person must be supported by probable

cause particularized with respect to that person.”); Rise v.

Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995), overruled on

other grounds by City of Indianapolis v. Edmond, 531 U.S. 32

(2000) (“[T]he drawing of blood from free persons generally

requires a warrant supported by probable cause to believe that

a person has committed a criminal offense and that his blood

will reveal evidence relevant to that offense . . . .”). As the

district court also noted, a police officer is not entitled to qualified immunity for a search conducted pursuant to a search

warrant “where the warrant application is so lacking in indicia

CROWE v. WRISLEY 1103
of probable cause as to render official belief in its existence

unreasonable.” Mills v. Graves, 930 F.2d 729, 731 (9th Cir.

1991). Under clearly established Supreme Court and Ninth

Circuit law, no reasonable police officer could have believed

that the desire to prove that another person (presumably

Michael) killed Stephanie established probable cause to draw

Stephen and Cheryl’s blood. The district court properly

denied summary judgment and qualified immunity.

B. Unlawful Detention

[24] The district court also properly denied summary judgment as to Cheryl and Stephen’s claim that they were unlawfully detained at the Escondido police station on January 21,

1998. Cheryl and Stephen allege that when they attempted to

leave the police station Detective Wrisley pulled out his gun,

pointed it at Stephen’s chest, and ordered Stephen and Cheryl

back upstairs, where they remained until Wrisley told them

that they had to go to a hotel and could not leave with Stephen’s brother, as Stephen had requested. Crowe II, 359 F.

Supp. 2d at 1026. The district court denied summary judgment on the grounds that, viewing the facts in the light most

favorable to the plaintiffs, Cheryl and Stephen had been

seized and defendants failed to provide any justification. Id.

The Escondido defendants argue that Cheryl and Stephen

returned upstairs voluntarily. In support of that argument,

defendants cite Stephen’s deposition in which he stated that

after Detective Wrisley pointed a gun at them and ordered

them upstairs, Cheryl said “let’s go back upstairs” and Stephen responded “fine, let’s go back upstairs.” Defendants’

argument is untenable. Assent in the face of an order from a

police officer, emphasized with a firearm, cannot reasonably

be interpreted as consent. The district court properly denied

summary judgment and qualified immunity.

VII. Conspiracy Claims

The district court granted defendants’ summary judgment

motion as to all conspiracy claims against defendant Blum

1104 CROWE v. WRISLEY
and Fourth Amendment conspiracy claims against defendant

McDonough on the grounds that neither Blum nor McDonough physically participated in the relevant arrests and

searches and there was insufficient evidence to establish that

they was part of a conspiracy broad enough to encompass the

relevant claims. Crowe I, 303 F. Supp. 2d at 1064-67, 1098.

We reverse the district court’s decision as to Blum, and affirm

as to McDonough.

[25] To establish liability for a conspiracy in a § 1983 case,

a plaintiff must “demonstrate the existence of an agreement or

meeting of the minds” to violate constitutional rights. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301

(9th Cir. 1999) (internal quotation marks omitted). “Such an

agreement need not be overt, and may be inferred on the basis

of circumstantial evidence such as the actions of the defendants.” Id. “To be liable, each participant in the conspiracy

need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865

F.2d 1539, 1541 (9th Cir. 1989) (en banc).

[26] Plaintiffs’ theory of liability as to Blum is that he conspired with the Escondido police and is thus liable for unconstitutional acts committed by other defendants. “A private

individual may be liable under § 1983 if she conspired or

entered joint action with a state actor.” Franklin v. Fox, 312

F.3d 423, 441 (9th Cir. 2002). Establishing liability for a conspiracy between a private actor and a state actor is no different from establishing liability for a conspiracy between two

state actors. The plaintiff must show “an agreement or meeting of the minds to violate constitutional rights,” and “[t]o be

liable, each participant in the conspiracy need not know the

exact details of the plan, but each participant must at least

share the common objective of the conspiracy.” Id. (internal

quotation marks omitted).

[27] The record shows that the quality of Blum’s involvement in the interrogations is not categorically inconsistent

CROWE v. WRISLEY 1105
with a tacit “meeting of the minds.” According to one of the

detectives, Blum helped the police formulate a “tactical plan”

to approach the interview. Moreover, the detectives “pretty

much” followed his advice after these consultations. Insofar

as these tactics and lines of questioning by the detectives

shock the conscience, as demonstrated above, summary judgment in favor of Blum is unwarranted. A meeting of the

minds can be inferred from circumstantial evidence, and

Blum’s involvement in the interrogations, particularly in formulating and directing the tactical plan, is sufficient for a reasonable factfinder to conclude it was “unlikely to have been

undertaken without an agreement,” of some kind between the

defendants. Mendocino Envtl. Ctr., 192 F.3d at 1301. We

therefore reverse the district court’s grant of summary judgment on this point.

[28] We also affirm the district court’s grant of summary

judgment on the Fourth Amendment conspiracy claim against

McDonough. The district court concluded that although “a

reasonable factfinder could find that there was a ‘meeting of

the minds’ between defendant McDonough and the other

defendants regarding the coercion of a confession from the

boys,” McDonough was not liable for the alleged Fourth

Amendment violations because the plaintiffs did not “demonstrate that [McDonough] shared the common objective of the

larger conspiracy alleged by plaintiffs: a conspiracy to wrongfully prosecute and convict the boys.” Crowe I, 303 F. Supp.

2d at 1067. We agree. The key inquiry is whether McDonough shared a “common objective” with the Escondido

police officers to falsely prosecute the boys. A “common

objective” to merely prosecute the boys is insufficient; fair

prosecution would not violate the boys’ constitutional rights.

It is too great a leap to conclude that help in obtaining a

confession—even a coerced confession—suggests that

McDonough shared the common objective of falsely prosecuting the boys. The district court’s grant of summary judgment in favor of McDonough is affirmed as to all surviving

Fourth Amendment claims.

1106 CROWE v. WRISLEY
VIII. Deprivation of Familial Companionship Claims

The Crowes and the Housers each alleged that their Fourteenth Amendment rights to familial companionship were violated by Michael’s and Aaron’s detentions. Additionally, the

Crowes allege that defendants denied them their Fourteenth

Amendment rights to familial companionship by placing

Michael and Shannon in protective custody prior to Michael’s

arrest. 

The district court granted summary judgment in favor of

defendants as to the Crowes’ and Housers’ detention claims

on the ground that Michael and Aaron’s arrests were supported by probable cause and thus their detentions did not

constitute “unwarranted governmental interference” with the

families’ relationships. Crowe I, 303 F. Supp. 2d at 1098-99;

Crowe II, 359 F. Supp. 2d at 1039. Because Michael’s and

Aaron’s continued detentions were wrongfully justified by

their illegally coerced confessions, we reverse.

[29] “It is well established that a parent has a fundamental

liberty interest in the companionship and society of his or her

child and that the state’s interference with that liberty interest

without due process of law is remediable under [42 U.S.C. § ]

1983.” Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.

2001) (internal quotation marks omitted) (alteration in Lee);

see also Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th

Cir. 1987), overruled on other grounds by Hodgers-Durgin v.

de la Vina, 199 F.3d 1037 (9th Cir. 1999); Kelson v. City of

Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985)).

“[U]nwarranted state interference” with the relationship

between parent and child violates substantive due process.

Fontana, 818 F.2d at 1418.23

23Defendants argue that the correct standard is whether defendants’ conduct “shocked the conscience.” There is no support in the relevant case

law for this assertion. The standard for deprivation of familial companionship is “unwarranted interference,” not conduct which “shocks the conscience.” See Lee, 250 F.3d at 686; Fontana, 818 F.2d at 1418.

CROWE v. WRISLEY 1107
The district court granted summary judgment against the

Crowes’ and Housers’ claims on the ground that Michael’s

and Aaron’s arrests were justified by probable cause. However, the lack of familial companionship that the Crowes and

Housers experienced was not due, in any significant part, to

the boys’ arrests; it was due to the boys’ incarceration. Thus,

the relevant consideration is not whether the boys’ were

wrongfully arrested; it is whether they were wrongfully

detained.

[30] We conclude that the boys were wrongfully detained.

Their coerced confessions were introduced at their Dennis H.

hearing, where it was determined that they would remain

incarcerated. However, the boys’ confessions were coerced

and thus not legally sufficient grounds upon which to make a

pre-trial detention determination. Having conducted the interrogations, the officers were aware both that the confessions

were coerced and that the confessions could be used to keep

the boys in jail. We reverse the district court’s grant of summary judgment as to this claim.

The district court denied summary judgment as to the

Crowes’ familial companionship claim based on the placement of Michael and Shannon in protective custody on the

ground that defendants failed to demonstrate that the placement was warranted under applicable California law. Crowe

II, 359 F. Supp. 2d at 1039-40. We agree with the district

court and affirm its denial.

IX. Defamation Claims

A. Stephan

Michael and Aaron brought state law defamation claims

and § 1983 “defamation plus” claims against Deputy District

Attorney Summer Stephan based on statements she made during an appearance on the news program “48 hours” shortly

after the indictments against the boys were dismissed. In her

1108 CROWE v. WRISLEY
motion for summary judgment, Stephan argued that the pieces

of her statements that were aired were taken out of context of

the interview as a whole. The interview lasted two hours and

twenty minutes, and the program aired two minutes and nine

seconds of that interview. Crowe I, 303 F. Supp. 2d at 1103.

The district court examined each of the statements plaintiffs

identified in their opposition to summary judgment as they

were made in the context of the unedited interview and ultimately granted summary judgment in favor of Stephan. Id. at

1105-1112. On appeal, Michael and Aaron argue that the district court erred because, in the context of the unedited interview, Stephan’s statements imply that the boys killed

Stephanie.24

1. State Law Defamation

California Civil Code § 44 defines “defamation” as either

libel or slander. California Civil Code § 46 provides:

Slander is a false and unprivileged publication,

orally uttered, and also communications by radio or

any mechanical or other means which:

1. Charges any person with crime, or with having

been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

24As an initial matter, Stephan argues that Michael and Aaron waived

their claims as to any statement not specifically discussed in the Crowe

brief. This argument misses the point of the boys’ argument on this issue.

The boys did not claim that Stephan made several, separately actionable,

defamatory statements. Rather, they claim that her statements during the

interview, taken as a whole, communicate the defamatory statement that

the boys killed Stephanie. The boys have not waived any portion of their

defamation claims against Stephan. 

CROWE v. WRISLEY 1109
3. Tends directly to injure him in respect to his

office, profession, trade or business, either by imputing to him general disqualification in those respects

which the office or other occupation peculiarly

requires, or by imputing something with reference to

his office, profession, trade, or business that has a

natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity;

or

5. Which, by natural consequence, causes actual

damage.

If a statement falls within § 46(1)-(4), it is considered defamatory per se. See Rodriguez v. Panayiotou, 314 F.3d 979, 983

(9th Cir. 2002). Michael and Aaron allege that Stephan’s

statements violated California Civil Code § 46(1) by implying

that they killed Stephanie.25

[31] In order to fall outside the scope of First Amendment

protection, an alleged defamatory statement must “contain a

provably false factual connotation.” Gilbrook v. City of Westminster, 177 F.3d 839, 861 (9th Cir. 1999) (quoting Milkovich

v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). Thus, in

reviewing a defamation claim, a court must first ask the

threshold question: “Could a reasonable factfinder conclude

that the contested statement implies an assertion of objective

fact?” Id. at 861-62. If the answer to that question is yes, then

the propriety of the district court’s grant of summary judgment depends on whether Michael and Aaron created a triable

issue of fact as to the falsity of Stephan’s statements. Unelko

Corp. v. Rooney, 912 F.2d 1049, 1052 (9th Cir. 1990).

25Plaintiffs do not allege that Stephan explicitly stated that the boys

killed Stephanie, nor does the transcript of the interview contain any such

explicit statement. 

1110 CROWE v. WRISLEY
We have adopted a three-part test to determine whether a

reasonable factfinder could conclude that the contested statement implies an assertion of objective fact:

First, we look at the statement in its broad context,

which includes the general tenor of the entire work,

the subject of the statements, the setting, and the format of the work. Next we turn to the specific context

and content of the statements, analyzing the extent of

figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the

statement itself is sufficiently factual to be susceptible of being proved true or false.

Gilbrook, 177 F.3d at 862 (quoting Underwager v. Channel

9 Australia, 69 F.3d 361, 366 (9th Cir. 1995)). Additionally,

“defamatory meaning must be found, if at all, in a reading of

the publication as a whole . . . . Defamation actions cannot be

based on snippets taken out of context,” Kaelin v. Globe

Commc’ns Corp., 162 F.3d 1036, 1040 (9th Cir. 1998). Stephan’s statements must be analyzed in the context of the

entire interview, not just the portion the program chose to air.

During the interview, Stephan explained the evidence that

had supported the prosecution of the boys, explained the decision to dismiss the indictments against the boys based on the

newly discovered evidence which implicated Tuite, and

repeatedly asserted that the investigation was on-going and

that it remained to be seen who might ultimately be brought

to trial for Stephanie’s murder. Michael and Aaron identify

several individual statements which they allege to be defamatory, including statements regarding the evidence which Stephan said implicated them, as well as evidence which Stephan

said seemed contrary to a theory that Tuite killed Stephanie.26

26The specific statements are detailed in the district court opinion. See

Crowe I, 303 F. Supp. 2d at 1105-09. 

CROWE v. WRISLEY 1111
[32] Applying the Underwager three-part test to the alleged

defamatory statements, a reasonable fact-finder could not conclude that Stephan implied that the boys actually did kill

Stephanie. Viewed in the context of the interview as a whole,

even Stephan’s most questionable statements can only be

interpreted as describing the evidence that led the police to

investigate the boys and allowed the prosecution to continue

as far as it did and expressing the facts that the investigation

had not concluded and that it was still possible that either the

boys or Tuite would ultimately be tried for Stephanie’s murder. Indeed Stephan repeatedly emphasized that it was unclear

who the real perpetrator was. For example, early in the interview Stephan was asked “[D]o you believe that one day

somebody, someone, some people will pay for the murder of

Stephanie Crowe?” Stephan responded, “The conclusion

might be that the young men will face justice. It might be that

the transient will face justice. It might be that another person

will face justice.” Also, at the end of the interview, Stephan

was asked, “Are you saying that you believe the boys did it

and you just can’t prove it?” Stephan responded, “I’m not

saying that at all. I am saying that we have to start from the

beginning. . . . the young men, the transient and maybe others

out there are potential suspects in this case. We’re not excluding anyone at this point.” At most, Stephan implied that the

boys may have killed Stephanie, not that they necessarily did.

This expression of a possibility, particularly when juxtaposed

to another mutually exclusive possibility, does not express a

“provably false” fact. The district court thus properly granted

summary judgment.

2. Section 1983 “Defamation-Plus” Claims

A § 1983 “defamation-plus” claim requires an allegation of

injury to a plaintiff’s reputation from defamation accompanied by an allegation of injury to a recognizable property or

liberty interest. Cooper, 924 F.2d at 1532. “There are two

ways to state a cognizable § 1983 claim for defamation-plus:

(1) allege that the injury to reputation was inflicted in connec1112 CROWE v. WRISLEY
tion with a federally protected right; or (2) allege that the

injury to reputation caused the denial of a federally protected

right.” Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d

636, 645 (9th Cir. 1999).

As discussed above, Stephan’s statements during the “48

Hours” interview were not defamatory as a matter of law.

Thus the boys’ defamation-plus claim fails as well, and the

district court properly granted summary judgment. See Cooper, 924 F.2d at 1532.

B. Blum

Aaron also brought a state-law defamation and a § 1983

defamation-plus claim against Dr. Lawrence N. Blum based

on statements Blum made to Escondido police officers.

Detective Claytor testified in a deposition that Blum assessed

Aaron as “exhibiting sociopathic tendencies.” Crowe I, 303 F.

Supp. 2d at 1112. Claytor also testified that Blum told the

Escondido Police Department that “[Aaron] is a Charles Manson with an IQ.” Id. In addition, Blum admitted in his own

deposition that during a phone call with Detective Anderson

on January 31, 1998, Blum stated that he thought that Aaron

was a “Charlie Manson wannabe” and that he was “highly

manipulative and controlling.” Id. The district court granted

summary judgment, concluding that these statements were not

defamatory as a matter of law.

1. State Law Defamation

Aaron argues that the district court erred because the statements implied that Aaron participated in Stephanie’s murder

and thus constitute defamation per se under California Civil

Code § 46(1). First, the statements regarding Aaron “exhibiting sociopathic tendencies” and being “highly manipulative

and controlling” cannot constitute defamation per se under

California Civil Code § 46(1) because they do not charge

Aaron with a crime. Rather, they are statements regarding

CROWE v. WRISLEY 1113
Aaron’s psychological profile. While they may—or may not

—be provably false, they do not constitute defamation per se,

Aaron would have to allege actual damage to maintain a defamation allegation. See Cal. Civil Code § 46(5). As Aaron has

made no such allegation, his defamation claim as to these two

statements necessarily fails.

[33] Aaron’s defamation claim based on the Charles Manson comparison also fails. First, the statement is “the type of

colorful, figurative rhetoric that reasonable minds would not

take to be factual.” Gilbrook, 177 F.3d at 862 (reference to

plaintiff as a “Jimmy Hoffa” not actionable); see also Underwager, 69 F.3d at 367 (statement that plaintiff is “intrinsically

evil” not actionable because not capable of verification). Second, in the context in which it was given—a statement to

police by a psychologist contracted to observe police

interrogations—the statement can most reasonably be interpreted as a commentary on Aaron’s psychological profile, as

opposed to an assertion that he committed a particular crime.

The district court properly granted summary judgment in

favor of Blum.

2. Section 1983 “Defamation-Plus” Claim

Aaron’s defamation-plus claim fails because Blum’s statements were not defamatory as a matter of law. The district

court properly granted summary judgment as to this claim as

well. See Cooper, 924 F.2d at 1532.

X. Municipal Liability Claims

In their complaint, plaintiffs assert causes of action against

the City of Escondido and the City of Oceanside under Monell

v. Department of Social Services, 436 U.S. 658 (1978).

Because the district court held that McDonough—the only

Oceanside police officer named in the suit—was entitled to

summary judgment with respect to all of plaintiffs’ claims, the

district court determined that the City of Oceanside was also

1114 CROWE v. WRISLEY
entitled to summary judgment on plaintiffs’ Monell claims.

Crowe I, 303 F. Supp. 2d at 1115. Similarly, the district court

granted summary judgment with respect to the Monell claims

against the City of Escondido which were predicated on the

alleged Fifth Amendment violations. Id.; see also Los Angeles

v. Heller, 475 U.S. 796, 799 (1986) (“[N]either Monell . . .

nor any other of our cases authorizes the award of damages

against a municipal corporation based on the actions of one of

its officers when in fact the jury has concluded that the officer

inflicted no constitutional harm.”). 

Because we hold that the officers did inflict constitutional

harm, we consider the Monell claim. Monell held that “[l]ocal

governing bodies . . . can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the

action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.”

436 U.S. at 690. A municipality is not liable for all constitutional torts committed by its employees, however: “[A]

municipality cannot be held liable solely because it employs

a tortfeasor—or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Id. at

691. The constitutional tort must have been committed “pursuant to official municipal policy.” Id.

[34] On appeal, plaintiffs allege their Monell claim on the

basis of statements made by Escondido and Oceanside officials that McDonough, Claytor, and Wrisley complied with

Escondido’s and Oceanside’s policies and procedures. However, Monell is clear that the constitutional tort must follow

from “official municipal policy.” Plaintiffs do not allege that

Escondido or Oceanside municipal policy permits or encourages the practice of coercing confessions. Therefore, the

Monell claims fail.

XI. Conclusion

We reverse the district court’s grant of summary judgment

as to: (1) Michael and Aaron’s Fifth Amendment claims; (2)

CROWE v. WRISLEY 1115
Michael and Aaron’s Fourteenth Amendment substantive due

process claims; (3) Michael’s Fourth Amendment claim that

police lacked probable cause to arrest him; (4) Aaron’s Fourth

Amendment claim that the warrant authorizing the search of

his home was not supported by sufficient probable cause; (5)

all otherwise surviving Fourth Amendment claims against

McDonough; (6) all otherwise surviving claims against Blum;

(7) the Crowes’ deprivation of familial companionship claim

based on Michael’s arrest; and (8) all otherwise surviving

claims against the Cities of Escondido and Oceanside. We

affirm the district court’s grant of summary judgment as to:

(1) Aaron’s Fourth Amendment claim that police lacked probable cause to arrest him; (2) Michael’s claim that police violated his Fourth Amendment rights by strip searching him; (3)

the Houser’s deprivation of familial companionship claim; (4)

Michael and Aaron’s defamation claims against Stephan; (5)

and Aaron’s defamation claim against Blum. Additionally, we

affirm the district court’s denial of summary judgment as to:

(1) Cheryl, Stephen, and Shannon Crowes’ claims that police

violated his Fourth Amendment rights by strip searching

them; (2) Cheryl and Stephen’s Fourth Amendment claims

that the warrant authorizing police to draw blood samples

were not supported by probable cause; (3) Cheryl and Stephen’s Fourth Amendment claims of wrongful detention; and

(4) the Crowe’s deprivation of familial companionship claims

based on the placement of Michael and Shannon in protective

custody. We remand to the district court for further proceedings consistent with this opinion.

Each party shall bear their own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED.

1116 CROWE v. WRISLEY