* District Judge, Northern District of Texas, sitting by

designation. United States Court of Appeals

Fifth Circuit



## FILED

March 31, 2005

Charles R. Fulbruge III

Clerk REVISED APRIL 13, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-51379

LACRESHA MURRAY, ET AL

Plaintiffs

LACRESHA MURRAY

Plaintiff-Appellee,

versus

RONNIE EARLE, etc.; ET AL

Defendant

DAYNA BLAZEY, Individually and as an Assistant District Attorney of

Travis County, Texas; STEPHANIE EMMONS, Individuall y and as an

Assistant District Attorney of Travis County, Texas; ANGELA MCGOWN,

Individually and as Supervisor of the Travis County Child

Protective Services; HECTOR REVELES, Individually and as a

Detective of the Austin Police Department; ERNEST PEDRAZA,

Individually and as a Detective of the Austin Police Department;

ALBERT EELS, Individually and as a Detective of the Austin Police

Department

Defendants-Appellants.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

(A-02-CV-552-SS)

--------------------

Before WIENER and PRADO, Circuit Judges, and KINKEADE, * District

Judge.

WIENER, Circuit Judge:

Defendants-appellants Dayna Blazey, Stephanie Emmons, Hector1 In Texas, juvenile criminal adjudications are civil in

nature, therefore, LaCresha’s conviction is for a civil, not

criminal, offense.

2 Reveles, Angela McGown, Ernest Pedraza and Albert Eells appeal the

district court’s denial of their motion for summary judgment on the

grounds of immunity under federal and state law. They contend on

appeal that they should not be held liable for coercing a

confession from the minor plaintiff-appellee, LaCresha Murray,

which ultimately led to her later-reversed conviction (and lengthy

incarceration) for injury to a child. 1 We reverse.

I. FACTS AND PROCEEDINGS

Th is case arises out of the investigation of plaintiffappellee LaCresha Murray’s (“LaCresha”) involvement in the death of

Jayla Belton, age two, in 1996. At the time of these events,

LaCresha was eleven years old. She and her siblings lived with her

grandparents, R.L. and Shirley Murray, who were her adoptive

parents, as well. The Murrays also provided daycare in their home

for several other children.

Late in May of 1996, Jayla, who was routinely cared for by the

Murrays, was dropped off at the Murray home by her mother’s

boyfriend. During the course of the day, Jayla appeared to be ill.

After she vomited at the lunch table, LaCresha’s older sister,

Shawntay, gave Jayla some med ication and put her to bed. No one

checked on Jayla until later that day. R.L. Murray testified that,

late in the afternoon, LaCresha came in from outs ide and went to3

the back of the house, near the bedroom where Jayla was sleeping.

R.L. then heard “thumping noises,” but he assumed that LaCresha was

playing with a ball and told her to stop. Shortly after that,

LaCresha told R.L. that Jay la was throwing up and shaking. He

asked her to bring Jayla to the front of th e house, where he

observed that Jayla appeared ill. He told Lacresha to take Jayla

outside to warm her up.

At 5:00 p.m., another parent arrived to collect her children

and noticed that Jayla was sweating profusely. That parent urged

R.L. to call 911, but he declined to do so. R.L. took Jayla to the

hospital, however; she was pronounc ed dead at approximately 5:30

p.m.

An autopsy conducted the following day revealed that Jayla had

suffered a severe liver injury caused by a blunt blow to the

abdomen. This trauma had broken four of her ribs and split her

liver into two pieces. The medical examiner concluded that Jayla

had died within five to fifteen minutes after receiving the injury

and also noted some thirty other bruises to her head, ear,

forehead, back, shoulder, elbow, chest, and the left side of her

torso. The examiner ruled Jayla’s death a homicide.

That same day, law-enforcement au thorities removed all the

children from the Murray home. They placed LaCresha and one of her

sisters in Texas Baptist Children’s Home, a private shelter for

children which contracts with the State to provide foster care. At4

the time that these children were removed from their adoptive

parents’ home, the authorities believed that they were in danger.

There is some dispute as to exactly when the police first began to

suspect that LaCresha had killed Jayla, but the focus of the

investigation had quickly shifted to LaCresha after law-enforcement

authorities spoke with other members of the household.

Three days after LaCresha had been removed from her adoptive

parents’ home, Detective Reveles dire cted Detectives Pedraza and

Eels, along with Angela McGown, the supervisor of the Travis County

Child Protective Services, to interview LaCresha. It is undisputed

that, by this time, the police no longer feared for LaCresha’s

safety but instead considered her a suspect in Jayla’s death.

Before the interview of LaCresha, Detectives Reveles and

Pedraza consulted with assistant district attorney Emmons on the

proper meth od of interrogating LaCresha. Emmons testified that,

even though LaCresha had been at the Texas Baptist Children’s Home

for three days, none of the officials believed that she was in the

custody of the State. In their minds, this obviated the need for

them to take her before a magistrate, as required by Texas law for

children who are in state custody. Pedraza and Eels gave LaCresha

a Miranda warning before beginning to interrogate her, but they did

not take her before a magistrate or notify her parents or attorney.

The detectives questioned LaCresha at the Baptist Children’s

Home for approximately two hours, eventually eliciting a confession2 In re L.M. , 993 S.W.2d 276, 291 (Tex. App. – Austin 1999,

pet. denied).

3 Id.

5 that she had dropped Jayla and kicked her. The State then charged

her with capital murder and injury to a child; the juvenile court

ruled her confession admissible; and the jury convicted her of

negligent homicide and injury to a child. Extensive publicity

followed, presumably influencing the juvenile court to order a new

trial on its own motion. At the second trial, the State charged

LaCresha with injury to a child; her confession was again admitted;

and the second jury convicted her. The juvenile court adjudicated

LaCresha delinquent and sentenced her to twenty-five years in the

custody of the Texas Youth Commission.

Three years later, the Te xas Court of Appeals reversed

LaCresha’s co nviction. 2 The appellate court ruled that LaCresha

h ad been in the custody of the State, that law-enforcem ent

authorities had violated Texas law by not taking her before a

magistrate prior to interrogating her, and that her confession was

therefore inadmissible. 3

LaCresha then brought suit in district court for damages

against numerous individuals, some of whom were only tangentially

related to the LaCresha’s judicial proceedings, asserting various

violations of her constitutional and state rights. On motions for

summary judgment, the district court dismissed all her claims

except those against the Defendants——Appellants (collectively, “the4 Mitchell v. Forsyth , 472 U.S. 511, 524-25 (1985).

5 Roe v. Tex. Dep’t of Protective & Regulatory Servs. , 299

F.3d 395, 413 (5th Cir. 2002).

6 Tex. Med. Ass’n v. Aetna Life Ins. Co. , 80 F.3d 153, 156

(5th Cir. 1996).

7 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 247-48 (1986).

6 defendants”) for violations of her Fifth Amendment right against

self-incrimination and for state law civil conspiracy. The

defendants now appeal the denial of their summary judgment motions

for qualified immunity on LaCresha’s Fifth Amendment claims and for

official immunity under state law on her civil conspiracy claims.

We have jurisdiction over both appeals. A defendant may

immediately appeal the denial of qualified immunity, even though it

is not a “final decision” under 28 U.S.C. § 1291. 4 The Texas law

o f official immunity provides the same protection against bot h

suit and liability as does the federal doctrine, so we also have

jurisdiction to review denial of state law immunity claims on

interlocutory appeal. 5

II. ANALYSIS

A. Standard of Review

We review deni als of grants of summary judgment d e novo

. 6

Summary judgment may be granted if the moving party shows there is

no genuine issue of material fact, and it is entitled to judgment

as a matter of law. 7 We construe all facts and inferences in the

light most favorable to the nonmoving party when reviewing grants8 Hart v. O’Brien , 127 F.3d 424, 435 (5th Cir. 1997), cert

denied , 5525 U.S. 1103 (1999).

9 Hope v. Pelzer , 536 U.S. 730, 736, 739 (2002). Defendants

Emmons and Blazey are each prosecuting attorneys in Travis

County, however, they are entitled to claim only qualified

immunity rather than the absolute immunity normally enjoyed by

prosecutors. LaCresha is suing them for the legal advice which

they provided the police investigators, for which they are not

entitled to absolute immunity. See Burns v. Reed , 500 U.S. 478,

496 (1992)(holding that absolute immunity does not protect the

prosecutorial function of giving advice to the police).

10 LaCresha spent three years in juvenile detention as a

result of her conviction.

7 of motions for summary judgment. 8

B. Fifth Amendment Violation: Qualified Immunity

In undertaking a qualifie d immunity analysis, we must first

determine wh ether the plaintiff has suffered a violation of his

constitutional rights and, if so, whether a reasonable official

should have kn own that he was violating the plaintiff’s

constitutional rights. 9 The district court held that, under these

narrow circumstances

—— an eleven-yea r-old child is removed from

her home, housed at a private shelter by the State for three days,

interrogated there for hours by two seasoned investigators to the

point of confession without an adult or advocate present to

represent her interests, and is convicted largely on the strength

of that confession

—— the child may, after the conviction is

overturned on the grounds that the confession was inadmissible, sue

under § 1983 for damages she suffered as a result of the violation

of her constitution al rights. 1 0 On appeal, the defendants insist11 Miranda v. Arizona , 384 U.S. 436, 465 n.33 (1966). The

Supreme Court has held that § 1983 plaintiffs do not have a Fifth

Amendment claim against law-enforcement officials who have

elicited unlawful confessions if those confessions are not then

introduced against the plaintiffs in criminal proceedings. This

case is distinguishable, as LaCresha’s statement was admitted at

trial and did result in her conviction. See Chavez v. Martinez

, 538 U.S. 760 (2003).

12 Chavez , 538 U.S. at 767; United States v. VerdugoUrquidez , 494 U.S. 259, 264 (1990)(internal citations omitted).

13 In re Gault , 387 U.S. 1, 30-31, 55 (1967).

8 that, even if LaCresha’s righ t against self-incrimination was

violated, § 1983 does not, or at least should not, provide her with

a remedy. We hold that, because LaCresha cannot demonstrate that

defendants acted unreasonably, in that their actions did not

proximately cause the damages that she suff ered, she may not

maintain a Fifth Amendment cause of action against them under §

1983.

1. Constitutional Violation

It is axiomatic that a criminal defen dant’s constitutional

rights have been violated “if his conviction is based, in whole or

in part, on an involuntary confession, regardless of its truth or

falsity.” 11 T he Fifth Amendment privilege against selfincrimination is a fundamental trial right which can be violated

o nly at trial, even though pre-trial conduct by law enforcement

officials may ultimately impair that right. 12 The constitutional

privilege against self-incrimination adheres in juvenile court

proceedings just as it does in ordinary criminal court. 13 In fact,14 Id. at 55. “[A]uthoritative opinion has cast formidable

doubt upon the reliability and trustworthiness of ‘confessions’

by children.” Id. at 52.

15 See Illinois v. Perkins , 496 U.S. 292, 296 (1990)(citing

Miranda , 384 U.S. at 444); United States v. Gonzales , 121 F.3d

928, 939 (5th Cir. 1997)(“ It is axiomatic that ‘the Fifth

Amendment privilege against self-incrimination prohibits

admitting statements given by a suspect during ‘custodial

interrogation’ without a prior warning.’”)(quoting Perkins , 496

U.S. at 296).

16 Gonzales , 121 F.3d at 939 (5th Cir. 1997)(citing Perkins

, 496 U.S. at 296)(internal quotations omitted).

17 Gonzales , 121 F.3d at 940 n.6 (citing United States v.

Galberth , 846 F.2d 983, 986 n.1 (5th Cir. 1988) and United States

v. Bengivenga , 845 F.2d 593, 596 (5th Cir.)(en banc), cert

9 states must take greater care to protect juveniles against coerced

confessions during police interrogations, because children are more

likely to be induced to confess, and their confessions are less

likely to be reliable. 14

a. Custodial Interrogation

An individual’s Fifth Amendment right against selfincrimination is implicated only during a “custodial”

interrogation. 15 The Supreme Court defines “custodial

interrogation” as “questioning initiated by law enforcement

officers after a person has been taken into custody.” 16 A suspect

is “in custody” for these purposes either (1) when he is formally

arrested or ( 2) “when a reasonable person in the position of the

suspect would understand the situation to constitute a restraint on

freedom of movement to the degree that the law associates with

formal arrest.” 17 We review d e novo the question whether andenied , 488 U.S. 924 (1988)).

18 United States v. Paul , 142 F.3d 836, 843 (5th Cir. 1998).

19 Texas law requires that a child be taken before a

magistrate before interrogation if the child is in a detention

facility or other place of confinement. Tex. Fam. Code. §

51.095(d)(1).

10 interrogation was custodial

. 18

The district court relied heavily on the reasoning of the

Texas Court of Appeals in determining whether LaCresha was in the

custody of the State during her interrogation. The Texas appellate

court’s i nitial determination whether LaCresha was in custody,

though addressing the federal constitutional standard for

“custodial interrogations,” was undertaken solely for the purposes

of the Texas law requiring that, if so, she should have been taken

before a magistrate before the police questioned her. 19 This

inquiry is apposite but not determinative of our de novo federal

constitutional inquiry re garding “in custody,” i.e., whether a

reasonable person in LaCresha’s position would have understood that

his liberty was constrained to the extent associated wi th formal

arrest.

On the latter issue, the Texas ap pellate court held, in

contrast to the Texas trial court, that LaCresha’s in terrogation

was custodial, adopting and applying a “reasonable child” standard.

The court asked whether, under these circumstances, a reasonable

child of eleven would have believed that her freedom of movement20 In re L.M. , 993 S.W.2d 276, 289 (Tex. App. —— Austin,

1999, pet. denied).

21 Id.

22 See Tex. Fam. Code. § 51.095(d)(1).

23 In re L.M. 993 S.W.2d 276, 289 (Tex. App. —— Austin,

1999, pet. denied).

11 was constrained to the degree associated with formal arrest. 20 The

appellate court emphasized that LaCresha was involuntarily removed

from her home by the State and placed in a children’s shelter

pursuant to emergency provisions of section 262 of the Texas Family

Code. 21 The state appellate court agreed with the state trial court

that, for purposes of evaluating whether LaCresha was “in custody”

for purposes of Texas state law, the Texas Baptist Children’s home

w as not a jail or detention facility. 2 2 The appellate court

diverged from the trial court, however, in ruling that (1) because

the shelter assumed all duties of care and control over children

residing there, it was a place of confinement; and (2) practically

speaking, LaCresha was not free to leave, as she would have had to

“run away” from the shelter, and she had no means of returning to

her home. 23 Although the determination that the shelter was a

“place of confinement” under Texas state law is not directly

relevant to the question whether LaCresha was in custody during the

ensuing interrogation, the state appellate court’s underlying

determinations regarding the degree of restriction over LaCresha’s

movement imposed by the state is relevant to whether she would have24 See United States v. Gonzales , 121 F.3d 928, 940 n.6 (5th

Cir. 1997)(citations omitted).

25 Yarborough v. Alvarado , 124 S. Ct. 2140, 2151-52 (2004).

26 Yarborough , 124 S.Ct. at 2152 (O’Connor, J., concurring).

12 felt her liberty to be constrained.

The defendants protest that we ought not consider a suspect’s

age in evaluating whether he was “in custody” for purposes of a

Fifth Amendment violation. Rather, they assert, we must use an

objective test, asking only whether a reasonable person

, not a

reasonable child

, would have concluded that his liberty was

constrained. 24 The Supreme Court has endorsed this approach when

confronted with an interrogation of a seventeen-year-old suspect,

but the Court’s conclusion rested on the assertion that the

“custody inquiry states an objective rule designed to giv e clear

guidance to the p olice, while consideration of a suspect’s

individual characteristics

—— including his age

—— could be viewed

as creating a subjective inquiry.” 25 Justice O’Connor wrote

separately to emphasize that “[t]here may be cases in which a

suspect’s a ge will be relevant to the M iranda ‘custody’ inquiry”

but that in Yarborough

, the defendant was almost eighteen years old

and it would be difficult “to expect police to recognize that a

suspect is a juvenile when he is so close to the age of majority.” 26

The case of an eleven-year- old is different. The police

should have no difficulty reco gnizing that their suspect is a

juvenile and adjusting their de termination whether the suspect27 See United States v. Collins , 972 F.2d 1385, 1405 (5th

Cir. 1992)(“[T]he most obvious and effective means of

demonstrating that a suspect has not been taken into custody ‘is

for the police to inform the suspect that an arrest is not being

made and that the suspect may terminate the interview at

will.’”)(citing United States. v. Griffin , 922 F.2d 1343, 1349

(8th Cir. 1990)); United States v. Harrell , 894 F.2d 120, 124

n.1 (5th Cir. 1990)(“We agree with the defendant that a detention

of approximately an hour raises considerable suspicion,” though

declining to establish a bright-line rule for when a suspect’s

interrogation becomes custodial); United States v. Bengivenga

, 845 F.2d 593, 600 (5th Cir. 1988)(holding that 90-second, routine

citizenship check at Mexican border did not constitute custodial

interrogation). Here, the act of the police in administering a

Miranda warning should confirm their own belief that LaCresha was

in custody.

13 w ould understand his freedom of movement to be constrained

accordingly. In any event, even if we were to ignore LaCresha’s

age at the time of her interrogation, we would still conclude that

a reasonable individual of any age who is removed involuntarily

from his home, housed by the State for three days, not informed

that he is free to leave, and questioned by two police detectives

in a closed interrogation room, would believe that his liberty was

constrained to the degree associated with formal arrest. 27 We hold

that LaCresha was “in c ustody” for purposes of evaluating her

interrogation.

b. Involuntary Confession

Next, we must determine whether the statement that LaCresha

gave while in custody was involuntary, making its introduction at

her crimina l trial violative of her Fifth Amendment rights.

Although LaCresha’s statement was taken in violation of Texas law,

this alone did not automatically produce a violation of her Fifth28 See Gagne v. City of Galveston , 805 F.2d 558, 560 (5th

Cir. 1986); United States v. Wilderness , 160 F.3d 1173, 1175

(7th Cir. 1998)(“Indiana would not have permitted [the juvenile

plaintiff’s] confession to be used in a state prosecution. . .

But . . .the voluntariness of a confession depends on public

officials’ compliance with constitutional norms, not on any rule

of state law.”).

29 Fare v. Michael C. , 442 U.S. 707 (1979); Gachot v.

Stadler , 298 F.3d 414, 418 (5th Cir. 2002).

30 Fare , 442 U.S. at 725; Gachot , 298 F.3d at 418-19

(quoting Fare , 442 U.S. at 725).

31 In re Gault , 387 U.S. 1, 55 (1967).

14 Amendment rights. 28 Once we have concluded that a juvenile’s

interrogation was custodial, we determine whether such a suspect’s

confession is coerced or involuntary by examining the totality of

the circumstances surroundi ng the child’s interrogation. 2 9 In

addition to the fact that the interrogation was conducted in

violation of state law, our examination includes consideration of

the juvenile’s “age, experience, education, background, and

intelligence, and into whether he has the capacity to understand

the warnings given him, the nature of his Fifth Amendment rights,

and the consequences of waiving those rights.” 30 The Supreme Court

has admonished that the police are required to take special care to

ensure the voluntariness of a minor suspect’s confession:

If counsel was not present for some permissible reason

when an admission was obtained, the greatest care must

be taken to assure that the admissi on was voluntary,

in the sense not only that it was not coerced or

suggested, but also tha t it was not the product of

ignorance of rights or of adolescent f a ntasy, fright

or despair. 3132 298 F.3d at 416, 421.

33 Id. (noting that the defendant was accompanied by his

brother during the interrogation, voluntarily went to the police

station for questioning, and was there for approximately four

hours). Compare Fare , 442 U.S. at 726-27 (holding 16 1/2 yearold juvenile voluntarily and knowingly waived his Fifth Amendment

rights during an interrogation as he had considerable experience

with the police, having a record of several arrests, sufficient

intelligence to understand the rights he was waiving, and was not

worn down by improper interrogation tactics or lengthy

questioning by trickery or deceit) with Haley v. Ohio , 332 U.S.

596 (1948) (holding that a 15-year-old who had been arrested at

midnight, taken to a police station and subjected to continuous

interrogation by a rotation of several police officers, without

counsel or friend, until he confessed to participating in a

robbery and shooting, had not voluntarily confessed).

34 See E.A.W. v. State , 547 S.W.2d 63, 64 (Tex. Civ. App. ——

Waco 1977, no writ)(holding that an eleven-year-old child cannot

knowingly, intelligently, and voluntarily waive her

15 E very factor weighed in our analysis militates against the

conclusion that LaCresha’s statement was voluntary. At eleven

years of age, she was far younger than the fifteen-year-old

juvenile suspect whom we held to have voluntarily confessed in

Gachot v. Stadler

. 32 She had no experience with the criminal

justice system, had been held in the custody of the State for three

days, was unaccompanied by any parent, guardian, attorney, or other

friendly adult, and was found to have below-normal intelligence by

the court-appointed psychiatrist prior to her criminal trial, also

in contrast to the Gachot defendant. 33

LaCresha cannot be held to have knowingly and voluntarily

waived her rights to be represented by counsel and to remain

silent. 34 Other than having LaCresha sign a M iranda card, andconstitutional privilege against self-incrimination after

spending nine hours, from midnight to nine a.m., in a detention

facility, and without the guidance of a parent, guardian or

attorney).

35 Anderson v. Creighton , 483 U.S. 635, 640 (1987).

16 briefly explaining her rights to her at the outset of the

interrogation, the police took no pre cautions to ensure the

voluntariness of her statement, let alone “special care.” The

police made no effort to contact LaCresha’s adoptive parents, and

the shelter, which had assumed responsibility for her care, sent no

representative with her to the interrogation. LaCresha was never

told that she was free to leave or that she could call her adoptive

parents or any other friendly adult. In addition, the police

officers repres ented to LaCresha that they had already talked to

everyone in her fa mily, that everyone “knew” what happened, and

that she could help her family only by telling the truth. We hold

that LaCresha’s statement was involuntary, and that its admission

at trial violated her Fifth Amendment right against selfincrimination.

2. Clearly Established Law

To overcome a claim of qualified immunity, a p laintiff must

establish that the right an official is alleged to have violated

was “clearly established,” i.e., sufficiently clearly defined that

“a reasonable official would understand that w hat he is doing

violates that right.” 35 Although there need not be prior case law

directly on point for a constitut ional right to be clearly36 Hope v. Pelzer , 536 U.S. 730, 741 (2002).

37 See Chavez v. Martinez , 538 U.S. 760, 770 (2003).

17 established, the state of the law must be such that a reasonable

officer would be on notice that his actions could violate a

constitutional right. 3 6 Defendants argue that, even assuming

arguendo that clearly established law shou ld have put them on

notice that their interrogation of LaCresha was custodial and that

her statement was not made voluntarily, no clearly established law

put them on notice that their actions could violate her Fifth

Amendment rights

.

Defendants assert that a reasonable o fficer would not have

understood that his actions could have violated LaCresha’ s Fifth

Amendment rights because, as we discussed above, such a violation

requires that (1) officials coerce an involuntary statement from a

suspect and (2) this statement later be introduced against her at

trial

. 37 Therefore, because an officer c annot contemporaneously

interrogate a s uspect unlawfully and violate a suspect’s Fifth

Amendment rights, we must determine whether clearly established law

should have alerted a reasonable official that his pre-trial

conduct, although perhaps a but-for cause of the violation of the

plaintiff’s trial rights, could proximately cause a violation of

her Fifth Amendment rights.

In a perfect world, trial courts protect defendants’ Fifth

Amendment rights by excluding improperly obtained confessions or38 See Oregon v. Elstad , 470 U.S. 298, 307 (1985)(ruling

that failure to Mirandize a witness before his confession

automatically results in exclusion of the statement’s use in the

prosecution’s case in chief); United States v. Blue , 384 U.S.

251, 255 (1966) (“Even if we assume that the Government did

acquire incriminating evidence in violation of the Fifth

Amendment, Blue would at most be entitled to suppress the

evidence and its fruits if they were sought to be used against

him at trial”).

39 See Crowe v. County of San Diego , 303 F. Supp. 2d 1050,

1091-92 (S.D. Cal. 2004). The Crowe court also observed that it

would be unfair to subject to civil liability under § 1983 only

those police officers whose improper questioning produced

statements admitted at trial but exonerate those officers whose

questioning violated defendants’ civil rights more egregiously,

resulting in statements excluded by the trial court. 303 F.

Supp. 2d at 1092. We find this logic unpersuasive, as defendants

abused by the police during their interrogations may bring suit

for violation of their Fourteenth Amendment rights. See Chavez

, 538 U.S. at 773-74; Rex v. Teeples , 753 F.2d 840, 843 (10th Cir.

1985)(“Extracting an involuntary confession by coercion is a due

process violation.”)(citing Haynes v. Washington , 373 U.S. 503,

513-15) (1963) and Spano v. New York , 360 U.S. 315, 320-23

18 statements. 38 In this real-world case, however, the trial court

failed to protect LaCresha’s rights. It is true that the officers

wrongfully elicited LaCresha’s confession during her interrogation

and that this confession was later wrongfully admitted at trial and

used against her, and ultimately resulted in her conviction; yet a

trial judge tw ice heard all the evidence concerning the

circumstances surrounding LaCresha’s confession and twice admitted

it into evidence. The defendants thus insist that, inasmuch as the

decision whether to admit a criminal d efendant’s statement lies

within the discretion of the presiding judge at trial, that judge’s

decision to admit LaCresha’s confession was an independent,

superseding cause of the violation of her Fifth Amendment rights. 39(1959)); Duncan v. Nelson , 466 F.2d 939, 944-45 (7th Cir.), cert.

denied , 409 U.S. 894 (1972).

40 The defendants argue that the presiding judge or

prosecutor is responsible and therefore liable for the

constitutional violation; but, of course, judges and prosecutors

enjoy absolute immunity for their judicial decisions and

prosecutorial functions, respectively. Stump v. Sparkman , 435

U.S. 349, 356-57 (1978); Imbler v. Pachtman , 424 U.S. 409, 420

(1976). Whether an objectively reasonable officer could be

aware, as he was improperly obtaining a suspect’s statement, that

he could be violating that individual’s Fourteenth Amendment

substantive due process rights is a separate question that we do

not address, as LaCresha did not allege a violation of her

Fourteenth Amendment rights. See Chavez , 538 U.S. at 773

(2003)(“Our views on the proper scope of the Fifth Amendment’s

Self-Incrimination Clause do not mean that police torture or

other abuse that results in a confession is constitutionally

permissible so long as the statements are not used at trial; it

simply means that the Fourteenth Amendment’s Due Process Clause

, rather than the Fifth Amendment’s Self-Incrimination Clause

, would govern the inquiry in those cases and provide relief in

appropriate circumstances.”)(emphasis in original).

41 Sims v. Adams , 537 F.2d 829, 831 (5th Cir. 1976).

42 Monroe v. Pape , 365 U.S. 167, 187 (1961), over-ruled on

other grounds

, Monell v. Dep’t of Soc. Servs. of City of New

York , 436 U.S. 658 (1978)(holding that plaintiffs may sue

municipalities for civil rights violations using § 1983).

19 Therefore, contend the defendants, because their improper

questioning could not have caused the violation of LaCresha’s Fifth

Amendment rights, they should not be held liable for the

violation. 40

S ection 1983 does require a showing of proximate causation,

which is evaluated under the common law standard. 41 In cases like

this one, we read § 1983 against the background of tort liability

that makes a person liable for the natural consequences of his

actions. 4 2 A corollary of these background tenets of tort law43 Restatement 2d of Torts § 440-41 (1965).

44 475 U.S. 335, 345 n.7 (1986).

20 relieves tortfeasors from liability if there exists a superseding

cause, or “an act of a third person or other force w hich by its

i ntervention prevents the actor from being liable for harm to

another which his antecedent wrongful act was a substantial factor

in bringing about.” 43 Defendants advance that the trial judge’s

decision to admit LaCresha’s statement into evidence constitutes

such a superseding cause, and that, absent any allegation or proof

that they endeavored to mislead the judge into admitting an

involuntary statement at tria l

, they cannot have acted

“unreasonably” according to clearly established law for purposes of

§ 1983 liability.

Albeit in dicta, the Supreme Court has intimated that this

argument should not hold sway, at least with respect to false

arrest claims. Although the Court in M alley v. Briggs conceded

that the appellant police officer’s argument that he could not have

proximately caused a defendant’s unlawful arrest by filing an

affidavit unsupported by probable cause was not before it on

appeal, the Court stated that it would not have been receptive to

this contention. 44 M alley states that § 1983 should be read against

background tort law, which recognizes the liability of individuals

for the consequences of their acts:

Petitioner has not pressed the argument that in

a case like this the officer s hould not be liable45 Malley , 475 U.S. at 345 n.7.

46 819 F.2d 1301, 1309 (5th Cir. 1987).

47 Gary v. Hand , 838 F.2d 1420, 1428 (5th Cir. 1988).

48 Id. at 1427-28.

21 because the judge’s decision to issue the warrant

breaks the causal chain be tween the application for

the warrant and the improvident arrest. It should be

cle ar, however, that the District Court’s “no

causation” rationale in this case is inconsistent with

our interpretation of § 1983. As we stated in M onroe

v. Pape

, 365 U. S. 167, 187 (1961), § 1983 “should be

read again st the background of tort liability that

makes a man respo n sible for the natural consequences

of his actions. 45

One year after Malley

, we implicitly endorsed this approach in

United States v. Burzynski Cancer Research Institute

, holding that

Malley required us to reject a police officer’s “superseding cause”

arguments and examine only whether a rea sonably well-trained

officer would have known that his warrant application was

unsupported by probable cause. 4 6 The following year, however, we

de cided G ary v. Hand

, a false arrest case in which we held that,

when a neutral intermediary, such as a justice of the peace,

reviews the facts and al lows a case to go forward, such an act

“breaks the chain of causation.” 47 We qualified our holding by

stating that “the chain of causation is broken only where all the

facts are presented to the grand jury, or other independent

intermediary w here the malicious motive of the law enforcement

officials does not lead them to withhold any relevant information

f rom the independent intermediary.” 48 This holding in G ary was49 See Thomas v. Sams , 734 F.2d 185, 191 (5th Cir. 1984)

(holding a mayor who had falsely sworn an arrest warrant, then

submitted the warrant to himself, as a magistrate, for issuance,

did not break the chain of causation because he did not submit

the warrant to a neutral party); Smith v. Gonzales , 670 F.2d 522,

526 (5th Cir. 1982) (holding that an officer who acted with

malice in procuring a warrant or a indictment will not be liable

if the facts supporting the warrant or indictment are put before

an impartial intermediary such as a magistrate or a grand jury,

for that intermediary’s ‘independent’ decision ‘breaks the causal

chain’ and insulates the initiating party); Rodriguez v. Ritchey

, 556 F.2d 1185, 1193 (5th Cir. 1977)(en banc), cert. denied , 434

U.S. 1047 (1978).

50 See Shields v. Twiss , 389 F.3d 142, 150 (5th Cir.

2004)(“[O]nce facts supporting an arrest are placed before an

independent intermediary such as a . . . grand jury, the

intermediary’s decision breaks the chain of causation”. . .unless

“the deliberations of that intermediary were in some way tainted

by the actions of the defendants”)(internal citations omitted);

Gordy v. Burns , 294 F.3d 722, 728 (5th Cir. 2002)(reaffirming

Hand ); Taylor v. Gregg , 36 F.3d 453, 456 (5th Cir. 1994)(“It is

well settled that if facts supporting an arrest are placed before

an independent intermediary such as a magistrate or grand jury,

the intermediary’s decision breaks the chain of causation for

false arrest, insulating the initiating party.”)(citations

omitted).

22 consistent with other circuit precedent, 49 yet we made no mention

of Burzynski or of the Supreme Court’s “proximate cause” footnote

in Malley

.

The rule of G ary v. Hand has since prevailed in this circuit

f or almost two decades. 5 0 Even though B urzynski appears to

contradict Hand ’s holding on the issue of superseding cause, the

earlier decisio n did not address the issue in depth, and we are

unwilling to disregard firmly ensconced circuit precedent in favor

of such a curso ry analysis of M alley ’s dicta. A review of other

circuits’ case law addressing proximate cause when a plai ntiff’s51 Compare Kerman v. City of New York , 374 F.3d 93, 126 (2d

Cir. 2004)(holding that police officer could be held liable for

plaintiff’s loss of liberty after police officer wrongly sent

plaintiff to a mental hospital, even though the plaintiff’s

subsequent detention in the hospital resulted from the

independent judgment of the physicians. “Tort defendants,

including those sued under § 1983, are responsible for the

natural consequences of their actions.”)(citing, inter alia

, Malley v. Briggs , 475 U.S. 335 (1986)); Herzog v. Village of

Winnetka , 309 F.3d 1041, 1044 (7th Cir. 2002)(“[T]he ordinary

rules of tort causation apply to constitutional tort suits” after

a suspect was illegally forced to give blood and urinate as a

result of an illegal arrest)(internal citation omitted); Zahrey

v. Coffey , 221 F.3d 342, 352 (2d Cir. 2000)(“[I]t is not readily

apparent why the chain of causation should be considered broken

where the initial wrongdoer can reasonably foresee that his

misconduct will contribute to an ‘independent’ decision that

results in a deprivation of liberty.”) ; Warner v. Orange County

Dep’t of Probation , 115 F.3d 1068, 1072-73 (2d Cir.

1996)(concluding that, as a sentencing judge’s adoption of

probation officers’ recommendation was entirely foreseeable, the

judge’s decision did not break the chain of causation with

respect to the probation officers’ liability under § 1983); and

Buenrostro v. Collazo , 973 F.2d 39, 45 (1st Cir. 1992)(holding

that, as “the Supreme Court has made it crystal clear that

principles of causation borrowed from tort law” apply to

constitutional torts, a jury “could conceivably find a causal

nexus between [an] unlawful arrest and [a] consequent

imprisonment,” even after an independent magistrate determined

that there was probable cause to detain the plaintiff)(citing

Malley , 475 U.S. at 345 n.7) with Egervary v. Young , 366 F.3d

238, 248 (3d Cir. 2004)(“To the extent that the common law

recognized the causal link between a complaint and the ensuing

arrest, it was in the situation where “misdirection” by omission

or commission perpetuated the original wrongful

behavior.”)(citing Hand , 838 F.2d at 1428); Townes v. City of New

York , 176 F.3d 138, 147 (2d Cir. 1999)(holding chain of causation

broken between police officers’ illegal search and seizure and

23 injury re sults from an independent decision-maker’s ruling also

reveals a fundamental tension between these primary tenets of tort

law: (1) An individual is liable for the reasonably foreseeable

consequences of his actions, and (2) an intervening decision of an

informed, neutral decision-maker “breaks” the chain of causation. 51plaintiff’s subsequent conviction and imprisonment); Smiddy v.

Varney , 665 F.2d 261, 266-68 (9th Cir. 1981)(holding police

officers not liable for damages once prosecutor made independent

decision to charge plaintiff); Duncan v. Nelson , 466 F.2d 939,

943 (7th Cir. 1972)(holding that no § 1983 cause of action exists

for violation of Fifth Amendment rights resulting from admission

into evidence of a coerced confession as officers did not

proximately cause the violation); Crowe v. County of San Diego

, 303 F. Supp.2d 1050, 1092 (S.D. Cal. 2004) (“Given the roles and

obligations of prosecutors and judges and the independent nature

of these positions, a police officer could not reasonably know

that by obtaining a coerced confession he will cause a prosecutor

and/or a trial judge to violate a defendant’s Fifth Amendment

privilege against self-incrimination.”). See also Hector v.

Watt , 235 F.3d 154, 161 (3d Cir. 2000)(declining to reach the

question of whether proximate cause prevented a § 1983 plaintiff

from suing police officers for fabricating evidence as “there is

a great deal of tension in the caselaw about when official

conduct counts as an intervening cause.”).

52 We emphasize again that our analysis does not apply to

Fourteenth Amendment claims brought by plaintiffs against

officials that attack the lawfulness of the interrogation itself.

See Chavez v. Martinez , 538 U.S. 760, 773-74 (2003).

24 In this circuit, it was not well-established at the time of

LaCresha’s interrogation that an official’s pre-trial interrogation

of a suspect could subsequently expose that official to liability

for violation of a suspect’s Fifth Amendment rights at trial. We

hold that, as in th e analogous context of Fourth Amendment

violations, an official who provides accurate informa tion to a

neutral intermediary, such as a trial judge, cannot “ca use” a

subsequent Fifth Amendment violation arising out of the ne utral

intermediary’s decision, even if a defendant can later demonstrate

that his or her statement was made involuntarily while in custody. 52

L aCresha has not identified, and we have not foun d, any

evidence in the record to indicate that the state judge who53 In re L.M. , 993 S.W.2d 276, (Tex. App.– Austin,

1999)(pet. denied).

25 presided over her juvenile trial failed to hear (or was prevented

from hearing) all of the relev ant facts surrounding her

interrogation before deciding to admit her confession into

evidence. Armed with all those facts, that judge nevertheless

concluded that LaCresha was not “in custody ” for purposes of

Miranda or Texas law governing the interrogation of minors, and

ruled that her statement to the police was voluntary and

admissible. 53 Like the state appellate court, we disagree with the

trial court’s ruling, yet we are constrained to hold that it

constituted a superseding cause of LaCresha’s injury, relieving the

defendants of liability under § 1983. T his holding pretermits our

consideration whether she suffered a violation of a constitutional

right that was clearly established at the time, and whether a

reasonable official should have k nown that he was violating that

right. Accordingly, we reverse the district court’s denial of

qualified immunity for the defendants on LaCresha’s Fifth Amendment

claim.

C. State Law Civil Conspiracy Claim

LaCresha has also asserted a claim under state law, contending

that the defendants conspired to deprive her of her Fifth Amendment

rights. The elements of a civil conspiracy claim in Texas are:

“(1) two or more persons; (2) an object to be accomplished; (3) a

meeting of minds on the object or course of action; (4) one or more54 Massey v. Armco Steel Co. , 652 S.W.2d 932, 934 (Tex.

1983).

55 Juhl v. Airington , 936 S.W.2d 640, 644 (Tex. 1996).

56 As the Texas Tort Claims Act does not waive the State’s

immunity for civil conspiracy suits or other intentional torts

committed by officials in their official capacity, the district

court correctly dismissed claims brought against the defendants

in their official capacities. TRST Corpus, Inc. v. Financial

Ctr., Inc. , 9 S.W.3d 316, 322 (Tex. App. – Houston [14th Dist.]

1999, writ denied)(citing Tex. Civ. Prac & Rem. Code § 101.021

(2004), which enumerates the causes of action for which the state

has waived immunity, but not including civil conspiracy).

Accordingly, we address only state conspiracy claims brought

against the defendants in their individual capacities.

57 Roe v. Tex. Dep’t of Protective & Regulatory Servs. , 299

F.3d 395, 413 (5th Cir. 2002).

58 Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex.

2000).

26 unlawful, overt acts; and (5) damages as the proximate result.” 5 4

A plaintiff asserting such a claim must prove that the defendants

conspired to accomplish an unlawful purpose or used unlawful means

to accomplish a lawful purpose. 55

The defendants counter that, under Te xas law, they are

officially immune from suit f or civil conspiracy. 5 6 In this

interlocutory appeal, we have jurisdiction to hear the defendants’

claim of official immunity because Texas law, like the federal

doctrine, “provides a true immunity from suit and not a simple

d efense to liability.” 57 As official immunity is thus an

affirmative defense, a state official seeking summary judgment on

such grounds “must conclusively prove each element of the

defense.” 5859 City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex.

1994).

60 Id. at 654 (citation omitted).

61 Id. at 656.

62 Id. at 658.

63 Id.

27 Government officials in Texas are officially immune from

liability for the performance of their (1) discretionary duties (2)

in good faith (3) a s long as they are acting within the scope of

their authority. 5 9 A discretionary function —— as distinguished

from a ministerial duty, which requires rote obedience to orders or

performanc e of a function to which the actor has no choice ——

involves personal deliberation, decision and judgment. 60 An officer

acts in good faith if a reasonably prudent officer, under the same

circumstances, could have believed that his actions were correct. 61

An officer acts within the scope of his authority when he

discharges the duties generally assigned to him. 62

The district court ruled, and LaCresha does not dispute, that

the remaining defendants were performing discretionary functions

and acting within the scope of their authority vis-à-vis her

interrogation. That leaves only the question whether they acted in

good faith.

To obtain official immunity on summary judgment, an official

must prove that a reasonably prudent official might have believed

that his action was appropriate under the circumstances. 63 Even if64 Id. at 655.

65 Roe v. Tex. Dep’t of Protective & Regulatory Servs. , 299

F.3d 395, 413 (5th Cir. 2002).

66 See Chambers , 883 S.W.2d at 656.

28 an offici al’s actions were taken negligently, that would not be

sufficient to defeat a showing of good faith. 64 The test for good

faith is objective and is substantially derived from the test for

good faith in a qualified immunity claim for federal constitutional

violations. 65

In light of our holding that the defendants are immune from

prosecution for LaCresha’s Fifth Amendment constitutional claim

because they did not act unreasonably according to clearly

established law, we also determine, by conducting the analogous

state law inquiry under Texas state law, 66 that immunity bars

LaCresha’s civil conspiracy claim. As we have now determined, for

purposes of the Fifth Amendment inquiry, that the officers did not

conceal from the Texas trial court any of the circumstances

surrounding LaCresha’s interrogation and, therefore, that they did

not cause the violation of her rights, we are constrained to hold

that they acted “in good faith” for purposes of Texas official

immu nity. A reasonable officer, under the circumstances, could

have believed that what he was doing would not violate a suspect’s

Fifth Amendment rights

—— certainly, if none of the officials could

cause a violation of those rights, none could conspire to cause

such a violation, particularly in view of our determination that67 Kelly v. Diocese of Corpus Christi , 832 S.W.2d 88, 95

(Tex. App. —— Corpus Christi 1992, writ dism’d w.o.j.).

68 Hopt v. Utah , 110 U.S. 574, 584-85 (1884).

29 the officials properly presented evidence of their interrogation of

LaCresha to the Texas trial court. Therefore, the defendants are

entitled to immunity from LaCresha’s state law conspiracy claim.

Further, our determination that the defendants did not commit

an actionable violation with respect to LaCresha’s Fifth Amendment

violation bars a claim of civil conspiracy based on that violation,

as “[g]enerally, if an act by one p erson cannot give rise to a

cause of action, then the same act cannot give rise to a cause of

action if done pursuant to an agreement between several persons.” 67

Although LaCresha did suffer a violation of her constitutional

rights, our determination that none of the state officials could

have proximately caused this violat ion means that none have

committed a tortious act. As we conclude that LaCresha’s claims

against these defendants are unav ailing, we reverse the district

court, and remand for entry of summary judgm ent in favor of the

defendants.

The importance of deterring the improper obtaining of

confessions, however, cannot be gainsaid. “A deliberate, voluntary

confession of guilt is among the most effectual proofs in the law,

and constitutes the strongest evidence against the party making it

that can be given of the facts stated in such confession.” 68

Justice White called a voluntary confession the most damaging form69 Bruton v. United States , 391 U.S. 123, 140 (1968) (White,

J., dissenting).

70 Stephen A. Drizin & Richard A. Leo, The Problem of False

Confessions in the Post-D.N.A. World , 82 N.C.L. Rev. 891, 923

(2004). “Regardless of how often police elicit confessions from

the innocent, the social science literature strongly suggests

that interrogation-induced false confessions are highly likely to

lead to the wrongful conviction of the innocent, perhaps more so

than any other type of erroneous evidence. This is due to the

strong effect that confession evidence exerts on the perceptions

and decision-making of criminal justice officials and lay jurors.

With the exception of being captured during the commission of a

crime (whether by physical apprehension or electronically on

videotape), a confession is the most incriminating and persuasive

evidence of guilt that the State can bring against a defendant.

It therefore stands to reason that with the exception of being

falsely captured during the commission of a crime, a false

confession is the most incriminating and persuasive false

evidence of guilt that the State can bring against a defendant.”

Id. at 921.

71 Hopt , 110 U.S. at 584.

72 Jackson v. Denno , 378 U.S. 368, 385-86 (1964); In re

Gault , 387 U.S. 1, 45 (“The principle, then, upon which a

30 of evidence and noted that “[e]ven the testimony of an eyewitness

may be less reliable than the defendant’s own confession.” 6 9

“Confession evidence (regardless of how it was obtained) is so

biasing that juries will convict on the basis of confession alone,

even when no significant or credible evidence confirms the disputed

confession and considerable significant and credible evidence

disconfirms it.” 70

A voluntary confession merits credence “because it is presumed

to flow fromthe strongest sense of guilt.” 7 1 In diametric

opposition, an involuntary confession constitutes evidence entitled

to little weight, as it is likely to be unreliable. 72confession may be excluded is that it is, under certain

conditions, testimonially untrustworthy . . .”)(emphasis in

original)(quoting 3 Wigmore, Evidence § 822 (3d ed. 1940)).

73 In re Gault , 387 U.S. at 47.

74 Spano v. New York , 360 U.S. 315, 320-21 (1959).

75 In re Gault , 387 U.S. at 55.

31 The privilege against self-i ncrimination is,

of course, rela ted to the question of the

safeguards necessary to assure that admissions or

confessions are reasonably trustworthy, that they

are not the mere fru its of fear or coercion, but

are reliable expressions of the truth. . .coercion

is thought to carry with it the da nger of

unreliability. 73

Involuntary confessions also affront society’s “deep-rooted feeling

that . . in the end, life and liberty can be as much endangered

from illegal methods used to convict those thought to be criminals

as f rom the actual criminals themselves.” 7 4 These principles are

doub ly true in cases such as this one, in which the suspect is a

young child whose statements are more likely to be the product of

“fear, ignorance, fantasy, or despair.” 75

Nonetheless, the independent roles of police officers,

prosecutors, and judges operate in this context to prevent

individuals who have suffered violations of their Fifth Amendment

rights from recovering for their damages, absent a showing that a

neutral intermediary, such as a judge, did not have all pertinent

information surrounding an interrogation before him when deciding

a confession’s admissibility. Therefore summary judgment in favor

of the defendants is appropriate.32 III. CONCLUSION

As LaCresha cannot demonstrate that the acts of the defendants

in obtaining her confession proximately caused the violation of her

Fifth Amendment rights, we hold that she may not maintain against

the defendants either a claim under § 1983 for a constitutional

violation or civil conspiracy claim under Texas law.

REVERSED and REMANDED.