FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL A. STOOT, SR.; TAMMIE L. 

STOOT, husband and wife, and as

parents and guardians of Paul A.

Stoot II; and PAUL A. STOOT II, a

minor child, No. 07-35425

Plaintiffs-Appellants, D.C. No.  v. CV-05-01983-TSZ

CITY OF EVERETT, a municipal OPINION

corporation; OFFICER JON A.

JENSEN; JANE DOE JENSEN, and the

marital community thereof,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted

October 23, 2008—Seattle, Washington

Filed August 13, 2009

Before: Barry G. Silverman and Marsha S. Berzon,

Circuit Judges, and James C. Mahan,* District Judge.

Opinion by Judge Berzon

*The Honorable James C. Mahan, United States District Judge for the

District of Nevada, sitting by designation. 

10941
COUNSEL

Michael J. Andrews, Cogdill Nichols Rein Wartelle Andrews,

Everett, Washington, for the plaintiffs-appellants.

Robert L. Christie, Christie Law Group, PLLC, Seattle,

Washington, for the defendants-appellees.

OPINION

BERZON, Circuit Judge:

Based solely on statements by a four-year-old that she had

been sexually abused when she was three, Everett Police

STOOT v. CITY OF EVERETT 10945
Detective Jon Jensen seized and interrogated plaintiff Paul

Stoot II for almost two hours in the principal’s office at Paul’s

school. Near the end of the interrogation, Paul stated that he

had molested the victim three times. The confession was then

used to file criminal charges against Paul in juvenile court.

A state court subsequently dismissed the charges, holding

that the confession had been coerced and that the four-yearold victim was incompetent to testify at trial. After the

charges against Paul were dismissed, the Stoot family filed

this action under 42 U.S.C. § 1983, asserting violation of

Paul’s rights under the Fourth, Fifth, and Fourteenth Amendments. Specifically, the Stoots alleged that (1) Jensen seized

Paul without probable cause in violation of the Fourth

Amendment, as the victim’s statements, standing alone, were

unreliable; (2) Jensen coerced a confession that was later used

against Paul in a criminal proceeding, in violation of the Fifth

Amendment; and (3) Jensen’s interrogation techniques were

so coercive as to violate substantive due process under the

Fourteenth Amendment. The Stoots also asserted a claim of

municipal liability against the City of Everett based on its policies and practices regarding interrogation of juvenile suspects

and child victims, as well as a state law claim of outrage.

We conclude that the Stoots have alleged viable claims

under both the Fourth and Fifth Amendments, as Jensen

seized Paul without probable cause and then allegedly coerced

incriminating statements that were later used against Paul in

a criminal proceeding. We nonetheless affirm the district

court’s grant of summary judgment to defendants on the

Fourth Amendment claim on the basis of qualified immunity,

as the pertinent law was not clearly established at the time of

the violations. The Fifth Amendment claim, however, may

proceed in district court, as the aspects of the pertinent law

not clearly established at the time of the confession did not

affect Jensen’s role in bringing about the violation. Finally,

we affirm the district court’s grant of summary judgment to

defendants on the Stoots’ remaining claims, as Jensen’s con10946 STOOT v. CITY OF EVERETT
duct did not rise to the level of a substantive due process violation or a state law claim for outrage and the Stoots have

failed to provide evidence supporting municipal liability.

FACTS & PROCEDURAL HISTORY

On December 23, 2003, Nicki Johnson contacted the City

of Everett Police Department to report that her four-year-old

daughter, A.B., had been sexually abused by an acquaintance,

Paul Stoot II (“Paul”). Officer Margaret Anders responded to

the call and briefly interviewed Nicki. Nicki stated that four

days earlier, she had walked into A.B.’s bedroom and found

her with “her pants down . . . touching herself.” Nicki asked

A.B. why she was doing that, and A.B. eventually responded

“because Paul touched me there.” Nicki then asked her to

explain exactly what happened, and A.B. replied that “[Paul]

pulled down his pants and pulled his little thing out and pulled

her pants down and put it on her.” According to Nicki, A.B.

indicated that this had happened five times between June and

September 2002, while A.B. was living with the Stoot family.

Nicki told Officer Anders that “Paul” referred to Paul Stoot

II, the 14-year-old son of Paul Stoot, a local pastor (“Pastor

Paul”). Nicki described the neighborhood in which the Stoot

family resided, and Officer Anders verified this information

by finding an address for Paul Stoot in a local directory. She

then instructed Nicki not to question her daughter any further

about the incident, wrote her report, and passed it along to

City detectives. Anders noted that “[t]hroughout my interaction with her, [Nicki] appeared to be a credible person who

was not exaggerating or fabricating allegations. I had no reason to doubt her or the version of events that she conveyed to

me.” Anders’s report concluded her involvement in the case.

Anders’s report was assigned to Detective Jonathan Jensen

the next day. At the time of the investigation, Jensen had been

a police officer for twenty-four years, including five years in

the Special Assault Unit, which focuses on cases of child sexSTOOT v. CITY OF EVERETT 10947
ual abuse. Jensen began his investigation by contacting Nicki,

who described the same conversation with her daughter previously relayed to Anders. Based on his “background and training,” Jensen “believed that [Nicki] had done [a] reliable job

of obtaining truthful and accurate information from her

daughter without leading her or planting a suggested story.”

Nicki agreed to allow Jensen to interview her daughter.

Jensen interviewed A.B. outside the presence of her mother

or anyone else. He did not videotape or audio-record the interview. He did take notes, but threw them out shortly after preparing his police report. The account of the interview in his

report thus constitutes the only contemporaneous description

in the record of Jensen’s interview with A.B.

According to the report, Jensen began the interview by

“telling [A.B.] some things about [himself] in a rapport building exercise.” He then asked her, “Has anyone ever touched

you in a way you don’t like?” A.B. answered, “No.” Jensen

then began working with sketches of a little boy and a little

girl, asking A.B. to identify various body parts. After pointing

to the little boy’s penis, Jensen asked if she knew what that

was called, to which A.B. responded that she didn’t remember, but that girls weren’t supposed to touch it. Jensen then

asked, “Have you ever seen another boy’s penis before?” A.B.

responded, “A boy named Paul. He has one of these. He put

it on my privates, on the bed he did, at [the Stoot’s house].”

A.B. said this happened on five days. 

Jensen proceeded to ask a number of questions about Paul.

A.B. stated that “[Paul] told me to taste [his penis]” one time

in the bathroom, but that she “didn’t touch it.” She said that

they went into the bedroom, and “he put his poo poo on me.”

Jensen asked A.B. if Paul touched her anywhere else, to

which A.B. responded that “he sits on me and bounces when

he puts his poo poo on me.” She said that she “wouldn’t like

it. Sometimes, I like it but I don’t like it. Sometimes, it gets

stuck.” 

10948 STOOT v. CITY OF EVERETT
A.B.’s answers were at times confused or contradictory.

Jensen asked her, for example, “Did Paul’s penis touch your

face?” to which A.B. answered, “No.” Jensen then asked her,

“Did you touch his poo poo?” A.B. denied that she did, but

then began talking about another boy, “Preston.” She

answered, “No. I told you I didn’t. He usually puts his poo

poo inside here (she pointed to her vaginal area). Preston puts

his poo poo in my pee pee.” Jensen asked her who Preston

was, and A.B. responded that he was a six-year-old friend

who lives far away. Jensen then “told her [he] wanted to talk

more about Paul and not talk about Preston anymore.”

Jensen also asked A.B. several times whether Paul licked

her. The first time, A.B. responded, “No. He just put his poo

poo in my pee pee.” A moment later, however, Jensen asked

her if there was anything she forgot to tell him, to which she

answered, “He actually has licked me.” A.B. also stated, “Actually, I did lick his poo poo,” although she had previously

denied doing so several times.

Following the interview, Jensen talked to Nicki, who told

him that A.B. had stayed with Paul Stoot and his family from

June 2002 to September 2002 while Nicki dealt with some

financial problems.1 Jensen then called the local school district to find out which school Paul attended. Because he now

considered Paul “a suspect in a rape of child case,” Jensen

also notified Child Protective Services of his investigation. 

On January 15, 2003, Jensen called Bree Nelson, Principal

of Voyager Middle School, to arrange an on-campus interview with Paul. Before interviewing Paul, Jensen spoke with

1

Jensen did not take any steps to verify that A.B. had, in fact, lived with

the Stoots during this time period. If Jensen had contacted Pastor Paul to

confirm Nicki’s account of their relationship, he likely would have learned

that the Stoots discontinued A.B.’s enrollment in the family’s daycare service two months before Nicki made her allegations, because Nicki owed

them roughly $3,000.

STOOT v. CITY OF EVERETT 10949
two Snohomish County prosecutors “to make sure [he] was

current on the legal standards for interviewing juvenile suspects that were at least 12 years old.” According to Jensen, 

From these discussions, [he] picked up two points of

information; (1) if the juvenile requests his parents

during the interview, treat the request the same as

one for legal counsel, and (2) give the juvenile

Miranda warnings and have him sign the waiver

form (if applicable) even for non-custodial interviews since the interview was to take place at a

school where the child was not free to leave.

Acting on this advice, Jensen told Nelson that she did not

need to contact Paul’s parents before the interview. Rather,

Jensen indicated that he would contact them afterwards.

When Jensen arrived at the school, Vice Principal Bailey

pulled Paul out of class and took him to the principal’s office,

where Jensen was waiting for him. At this point, the parties’

version of events begins to differ.2 According to Jensen, 

I introduced myself and said I wanted to talk to

[Paul]. He said okay. I sat down with him at a small

table, and produced a rights form. I explained I was

required to read him his rights before I could talk to

him. He shook his head up and down. I read his

rights . . ., and he signed the form to indicate that he

understood, and signed that he was willing to talk to

me.

After Paul waived his rights, Jensen states that he questioned

Paul about A.B.’s allegations for close to two hours and that

— after denying any wrongdoing at least 13 times — Paul

2As with his interview of A.B., Jensen did not record or preserve notes

from his interview with Paul. 

10950 STOOT v. CITY OF EVERETT
eventually confessed. In Jensen’s words, he successfully

employed “the interviewing technique of blaming the victim”:

I kept talking to him about A.B. starting the contacts,

and about her being sexually aggressive. I kept telling him that it would have been normal for him to

respond to her touching him. . . . I kept talking to

him, and I finally said, ‘You touched her vagina with

your fingers, didn’t you.’ He said, ‘Yes.’ I asked,

‘How many times?’ He said, ‘Three times on her

vagina.’ 

According to Jensen, Paul also voluntarily agreed to provide a written statement. In that statement, Paul admitted that

“[o]ne time I did touch her on her vagina for like 5 seconds,”

although he maintained that “[n]either of us pulled down our

pants and rubbed on each other,” that “she never put her

mouth on my penis and I never put my mouth on her vagina,”

and that “[s]he never seen my penis, only when she walked

in the bathroom and grabbed it but I didn’t let her.” In a note

at the bottom of the statement, added at Jensen’s instruction,3

Paul indicated that he “rubbed on vagina 2 times with clothes

on then one time for a couple of second with clothes off.”

The Stoots provide a very different account of Paul’s interview with Jensen. According to the Stoots, after Paul’s

repeated denials, Jensen “adjusted his tactics, and coerced

admissions from Paul.” They assert that this coercion “included the making of impermissible threats of heightened

punishment if Paul denied guilt, and impermissible promises

3

In his declaration, Jensen claims that “[Paul] wrote out the text of the

statement without any direction from me.” Jensen’s police report contradicts his declaration. In the report, Jensen states, “I reviewed [Paul’s written statement]. I found where he said he touched A.B. one time on her

vagina. It had been my recollection he said he touched her three times on

her bare skin. . . . I asked him to clarify this by adding a sentence to the

end of his statement.”

STOOT v. CITY OF EVERETT 10951
of leniency if he admitted guilt.” Paul claims, for example,

that after almost two hours of interrogation, 

I’m thinking, man, he’s not taking no for an answer

and I don’t know what to do. I don’t know what to

say besides tell him, yes, I did it. And I thought that

I wasn’t going to be able to walk out that room if I

kept telling him no.

At that point, Paul alleges that Jensen told him, 

[I]f I say no — if I keep saying no and denying it,

then this could lead to court and you could go to jail

for three to five months. . . . And if I just said that,

yes, that all of this will be over, this won’t lead to

court. No charges will be pressed and you won’t be

going to jail and that I will only have to see a counselor.”4

After these false promises, the Stoots contend, “Paul’s will

was overcome by these tactics and the physically imposing

Detective Jensen,” and Paul falsely confessed. In Paul’s

words, 

I had never been so scared in my life as when he said

he didn’t believe me when I told the truth. I wanted

my mom or dad or a teacher there, but I thought I

just had to sit there and do what he said. He just kept

drilling me saying he did not believe me again and

again. . . . I felt I had to lie and tell him what he

wanted to get out of that room.

The Stoots assert that Jensen’s interviewing tactics also

violated Miranda, as Paul lacked the capacity to consent to the

interrogation. They allege that although Jensen “verbally read

4

Jensen specifically denies this accusation, contending that he “never

made any promises to Paul II about what might happen to him.”

10952 STOOT v. CITY OF EVERETT
[Paul] his ‘Miranda’ rights, and instructed [Paul] to sign the

waiver form provided,” later psychological and developmental testing confirmed that Paul “lacked the capacity to understand or assert his legal rights.” Paul thought that the right to

remain silent, for example, meant that he “couldn’t say anything. I had to be quiet and I just had to listen to the cop.” The

right to an attorney, in his mind, meant that “after we had the

interview, I could appoint an attorney. And if I couldn’t, then

the State will give me one.” According to the Stoots, Paul’s

failure to understand his Miranda rights should have been

apparent to Jensen at the time of the interview.

After the interview, Jensen sent Paul back to class. On July

2, 2004, Snohomish County prosecutor Janice Ellis filed an

Information charging Paul with child molestation in the first

degree. An Affidavit of Probable Cause, filed with the Information, relied solely on (1) Nicki’s statements to police; (2)

Jensen’s interview of A.B.; and (3) Paul’s confession. At an

arraignment hearing a few weeks later, the Superior Court

found that “probable cause exists for the charge” and released

Paul on his own recognizance on various conditions, including that he “always be supervised by an adult who is aware

of the charge.”

On November 3, 2004, the Superior Court held a hearing

pursuant to Washington Criminal Rule 3.5 (the “CrR 3.5 hearing”) to determine the admissibility of Paul’s confession.5

5Criminal Rule 3.5 provides, inter alia, that “[w]hen a statement of the

accused is to be offered in evidence, the judge at the time of the omnibus

hearing shall hold or set the time for a hearing . . . for the purpose of determining whether the statement is admissible. . . . It shall be the duty of the

court to inform the defendant that: (1) he may, but need not, testify at the

hearing on the circumstances surrounding the statement; (2) if he does testify at the hearing, he will be subject to cross examination with respect to

the circumstances surrounding the statement and with respect to his credibility; (3) if he does testify at the hearing, he does not by so testifying

waive his right to remain silent during the trial; and (4) if he does testify

at the hearing, neither this fact nor his testimony at the hearing shall be

mentioned to the jury unless he testifies concerning the statement at trial.”

Wash. Super. Ct. Crim. R. 3.5(a), (b). 

STOOT v. CITY OF EVERETT 10953
After hearing testimony from Paul, Jensen, and expert witnesses, the court concluded that Paul “lacked the capacity to

understand his rights and . . . could not make an intelligent or

knowing waiver of his rights.” The court found that because

Paul did not ask for clarification of the meaning of his rights

and did not display any apparent confusion at the time of the

Miranda warnings, “it would have appeared to Detective Jensen that [Paul] understood his rights.” Based on the totality of

the circumstances, however, including Paul’s age, experience,

background, and intelligence, the court concluded that any

waiver of his rights was invalid.

The Superior Court also addressed the allegedly coercive

nature of Jensen’s interrogation techniques, finding that “it is

not per se coercive to use what has been described . . . as Reid

techniques [i.e., blaming the victim] for interrogation.” The

court noted, however, that Paul also claimed that Jensen

“made certain promises of leniency if he confessed and

implied more serious consequences if he refused to confess.”

Although Jensen denied making these threats or promises, the

court found Paul’s testimony on this point persuasive, as Paul

“lacked the experience and knowledge to fabricate the nature

of the promises made” and “was not sophisticated enough to

create a scenario of promised counseling in lieu of other punishment.” The court therefore concluded that the statements

made by Paul in his interview with Jensen “were the product

of impermissible coercion,” and were therefore inadmissible.

The Superior Court also heard testimony regarding A.B.’s

competence as a witness. The court learned that A.B. had a

history of hallucinations and panic attacks, that she had been

prescribed medication for anxiety neurosis, and that doctors

had previously referred her to a child mental health specialist.

Based on these concerns as well as A.B.’s testimony, the

court found that A.B. “lacked the mental capacity at the time

of the occurrence . . . to receive accurate impressions” and

“lacked memory sufficient to retain independent recollection

of any occurrences supporting the charged offense.” The court

10954 STOOT v. CITY OF EVERETT
thus concluded that A.B. was not competent to testify at

Paul’s trial, and excluded all “alleged hearsay statements

made on or about December 19, 2003 [the date of A.B.’s

statements to Nicki], and January 8, 2004 [the date of Jensen’s interview].” The court also granted Paul’s motion to dismiss the charges against him with prejudice, holding that “as

a matter of law the undisputed material facts fail to establish

a prima facie case of guilt.”

After the charges against Paul were dismissed, the Stoot

family brought this action against Jensen and the City of Everett.6

 As noted, the Stoots alleged various federal constitutional

claims under § 1983, as well as a claim against the City for

municipal liability and a state law claim for intentional infliction of emotional distress.7

 The district court granted defendants’ motion for summary judgment on all claims.

Specifically, the district court held that (1) Jensen was entitled

to qualified immunity on the Stoots’ Fourth Amendment

claims because “[a] reasonable officer in [his] position could

have believed that the statements by the victim established

probable cause, notwithstanding the significant amount of

time between the accusations by A.B. and the alleged molestation, and A.B.’s young age”; (2) the Stoots “failed to make

out a cognizable § 1983 claim for violation of [Paul’s] Fifth

Amendment privilege against compelled self-incrimination”

because Paul’s statements were never used against him in a

criminal trial; (3) Jensen’s interrogation of Paul was not so

“unduly coercive or improper” as to violate Paul’s right to

substantive due process under the Fourteenth Amendment; (4)

the Stoots “failed to identify facts in support of their claim

that a government custom or policy resulted in a violation of

Paul II’s constitutional rights,” foreclosing any claim for

6The Stoots filed this action in Washington Superior Court on November 22, 2005. Defendants subsequently removed it to federal court.

7The Stoots also initially claimed a violation of Paul’s Sixth Amendment right to counsel, but did not oppose summary judgment on that claim

and do not raise it on appeal.

STOOT v. CITY OF EVERETT 10955
municipal liability; and (5) the Stoots’ claims for outrage or

intentional infliction of emotional distress failed as a matter

of law because Jensen’s actions were not “outrageous in character” or “extreme in degree.”

The Stoots timely appealed.

ANALYSIS

We review the district court’s grant of summary judgment

de novo, viewing the facts in the light most favorable to the

non-moving party. Blankenhorn v. City of Orange, 485 F.3d

463, 470 (9th Cir. 2007). Summary judgment is appropriate

only “if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

I. FOURTH AMENDMENT SEIZURE

[1] “By virtue of its ‘incorporation’ into the Fourteenth

Amendment, the Fourth Amendment requires the States to

provide a fair and reliable determination of probable cause as

a condition for any significant pretrial restraint of liberty.”

Baker v. McCollan, 443 U.S. 137, 142 (1979). In this case,

defendants concede that on plaintiff’s version of the facts,

which we must credit for purposes of summary judgment,

Jensen’s detention and interrogation of Paul constituted a seizure, and we agree. See Doe v. Heck, 327 F.3d 492, 509-10

& n.15 (7th Cir. 2003). We must therefore decide whether

Jensen had probable cause to seize Paul and, if not, whether

Jensen is entitled to qualified immunity because the law was

not clearly established at the time of the interrogation.8

8Before the Supreme Court’s recent decision in Pearson v. Callahan,

129 S. Ct. 808, 818 (2009), courts addressing an official’s claim of qualified immunity were required to follow the two-step sequential inquiry

established in Saucier v. Katz, 533 U.S. 194, 202 (2001), asking first

10956 STOOT v. CITY OF EVERETT
A. PROBABLE CAUSE

[2] “Probable cause exists where the facts and circumstances within their [the officers’] knowledge and of which

they had reasonably trustworthy information [are] sufficient

in themselves to warrant a [person] of reasonable caution in

the belief that an offense has been or is being committed.”

Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (internal quotation marks omitted); see also Ornelas v. United

States, 517 U.S. 690, 696 (1996); Illinois v. Gates, 462 U.S.

213, 238 (1983). Further, “[b]ecause many situations which

confront officers in the course of executing their duties are

more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable [people], acting on facts leading sensibly to their

conclusions of probability.” Brinegar, 338 U.S. at 176. 

The Stoots argue that Jensen violated Paul’s Fourth

Amendment rights by relying solely on “the confused statement from a 4-year-old girl made during an improperly conducted interview” to justify Paul’s seizure. They note that

A.B. provided “vastly different reports about what was

alleged to have happened, when, where, and with whom” —

whether the plaintiff alleged a violation of a constitutional right and, second, whether that right was clearly established at the time of the conduct

at issue. Pearson relieved courts of their obligation always to follow this

sequence, permitting “[t]he judges of the district courts and the courts of

appeals . . . to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand.” Pearson, 129 S. Ct.

at 818. 

Although rigid adherence to the Saucier protocol is no longer required,

the Court was careful to note that Saucier‘s two-step procedure is “often

beneficial,” as it “promotes the development of constitutional precedent.”

Id.; see also id. at 821-22. Such is the case here, where we have not previously addressed whether a police officer may rely solely on the statements

of a very young victim of alleged sexual abuse to establish probable cause

to seize a potential suspect. 

STOOT v. CITY OF EVERETT 10957
inconsistencies that should have raised “serious concerns

about the veracity and reliability of the allegation made by

A.B.” And they maintain that a reasonable officer, presented

with A.B.’s contradictory account of alleged abuse, should

have engaged in a more thorough investigation to corroborate

A.B.’s allegations before seizing and interrogating Paul. Had

Jensen done so, the Stoots contend, he quickly would have

learned that A.B. was “a confused young girl, with a long history of hallucinations, vaginal issues, and reports of sexual

abuse by other persons,” whose statements, standing alone,

were not sufficiently reliable to constitute probable cause.9

9The Stoots present two other arguments in support of their Fourth

Amendment claim, neither of which has merit. First, they argue that defendants conceded in the proceedings below that Jensen lacked probable

cause. This argument is based on the district court’s characterization of an

exchange with counsel at oral argument, in which defense counsel admitted that “reasonable minds could differ as to whether Detective Jensen had

probable cause to arrest Paul II before the questioning at the school.” An

admission that reasonable minds could differ, however, is not a concession

that the opposing party is correct. Moreover, defendants clearly do not

concede that Jensen lacked probable cause on appeal, as they address the

issue at some length in their brief. 

Second, the Stoots challenge Jensen’s interviewing techniques, arguing

that his interview with A.B. was riddled with “leading and/or coercive

questions” that undermined the reliability of her answers. This argument

is squarely foreclosed by our decision in Devereaux v. Perez, 218 F.3d

1045 (9th Cir. 2000), reh’g en banc, Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001), in which we rejected a foster parent’s claim that “employing improper interview techniques to child witnesses . . . resulted in an

innocent person being falsely accused of child sexual abuse.” Id. at 1053.

We held that a person suspected of child sexual abuse does not enjoy any

constitutional right “to have child witnesses . . . interviewed in a particular

manner or pursuant to a certain protocol.” Id. Although the plaintiff in

Devereaux failed to identify any specific flaws with the defendants’ interviewing techniques, we noted that even if he had, “the interviewing conduct occurred in a grey area of investigative procedure as to which there

were, and probably still are, less than clearly established legal norms.” Id.

at 1053-54. Thus, even if Jensen employed improper techniques in his

interview with A.B., that would not give rise to a separate constitutional

claim. Rather, the question before us remains whether the information

available to Jensen at the time of the seizure was sufficiently reliable to

constitute probable cause. 

10958 STOOT v. CITY OF EVERETT
[3] We agree with the Stoots that A.B.’s statements were

not sufficiently reliable to establish probable cause to seize

Paul. Law enforcement officers may obviously rely on statements made by the victims of a crime to identify potential

suspects. But such information does not, on its own, support

a finding of probable cause if the information is not reasonably trustworthy or reliable. See Cortez v. McCauley, 478

F.3d 1108, 1116-22 (10th Cir. 2007) (en banc); United States

v. Shaw, 464 F.3d 615, 623-26 (6th Cir. 2006); Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987). In this case, three

factors, taken together, compel the conclusion that the statements made by A.B. to Jensen were not sufficiently trustworthy or reliable to establish probable cause on their own.

[4] First, A.B. was four years old at the time of the interview, and she was reporting events that purportedly occurred

when she was three. Common experience counsels extreme

caution in crediting detailed recollections of events said to

have occurred at such an extremely young age, particularly

those reported over a year later by a child still very young.

See Shaw, 464 F.3d at 624.

[5] Second, A.B. changed her answers at several points during the interview. She began by stating that no one had

touched her in a way she didn’t like, but proceeded to make

several allegations — in response to specific questions from

Jensen — that Paul had touched her in ways she “wouldn’t”

or “didn’t” like. She also initially denied that Paul had licked

her or that she had licked him, but then reversed herself on

both counts by the end of the interview, claiming both that

“[Paul] actually has licked me” and that “[she] did lick his

poo poo.”

[6] Third, A.B. at one point confused Paul with another

boy. In response to a question about Paul, A.B. stated that

“Preston puts his poo poo in my pee pee.” She did so right

after denying that Paul’s penis had touched her face, or that

she had touched Paul’s penis. 

STOOT v. CITY OF EVERETT 10959
[7] These three circumstances, considered together, point to

the need for further investigation and corroboration to establish probable cause. In cases involving very young child victims, the courts have repeatedly emphasized the need for

some evidence in addition to the statements of the victim to

corroborate the allegations and establish probable cause. See

Shaw, 464 F.3d at 624 (discussing this line of cases and noting that, in each case, “the court specifically noted that a

child’s testimony was not the only evidence supporting probable cause”). The need for further investigation was particularly acute in this case, in which a four-year-old victim

struggled to provide a coherent description of abuse that

allegedly occurred eighteen months earlier, when she was

three years old. Cf. id. (“We are not aware . . . of any situation

in which the uncorroborated hearsay statement of a child as

young as three, standing alone, has been considered sufficient

to establish probable cause.”).

Defendants maintain that the statements of child victims —

even if internally conflicting — can establish probable cause

to arrest a suspect. For support, they rely primarily on the

Tenth Circuit’s decision in Easton v. City of Boulder, 776

F.2d 1441 (10th Cir. 1985). 

In Easton, the parents of a three-year-old boy reported that

he had been molested the previous day. Id. at 1443. After

interviewing the alleged victim among others, the police

secured a warrant for Easton’s arrest. Id. at 1446. The district

attorney subsequently decided not to press formal charges. Id.

Easton then brought suit under § 1983, challenging the reliability of the child testimony used by the police. Id. at 1449.

The Tenth Circuit rejected Easton’s claim that the police

unreasonably relied on the statements of the child victim, noting that “[i]n a great many child molestation cases, the only

available evidence that a crime has been committed is the testimony of children” and that “[t]o discount such testimony

from the outset would only serve to discourage children and

10960 STOOT v. CITY OF EVERETT
parents from reporting molestation incidents and to unjustly

insulate the perpetrator of such crimes from prosecution.” Id.

The court therefore flatly repudiated a per se rule that the testimony of very young child victims may not be relied upon at

all in a probable cause determination. Id.

The court also rejected Easton’s claim that “apparent inconsistencies” in the child testimony rendered the police officers’

reliance on those statements unreasonable. Although it

described this argument as “the one point which does lend

some merit to [Easton’s] case,” the court began by explaining

that “when examining informant evidence used to support a

claim of probable cause . . . the skepticism and careful scrutiny usually found in cases involving informants . . . is appropriately relaxed if the informant is an identified victim or

ordinary citizen witness.” Id. The court noted that while certain statements of the child victim were undeniably selfcontradictory, those inconsistencies “[did] nothing to undermine the solid core of the children’s statements regarding

[one instance of assault] and the location of the perpetrator’s

apartment.” Id. at 1450. The court therefore held that the

police had probable cause to arrest Easton once they had completed their interviews.

Easton simply cannot bear the weight placed upon it by

defendants in this case. Although defendants cite Easton for

the general proposition that police may reasonably rely solely

on the partially-conflicting statements of child victims, the

investigating officers in that case did no such thing. To the

contrary, the police interviewed both the victim and his fiveyear-old playmate, who had allegedly witnessed one of the

two incidents of molestation. 776 F.2d at 1443. The Tenth

Circuit emphasized that the officer’s “separate interview of

[the victim’s playmate] also corroborated all the facts given

by [the victim] and by his father.” Id. The court also stressed

that the two children “together led [the officer] to the laundry

room where the second assault took place,” and that the officer there observed the blanket and black vinyl chair that both

STOOT v. CITY OF EVERETT 10961
boys had mentioned in their statements. Id. at 1443-44. The

officer also interviewed the apartment manager, learning that

Easton was a loner with few friends who “had been observed

in the past staring at the children playing in the common area

of the apartment complex.” Id. at 1444 (internal quotation

marks omitted).

The police in Easton therefore had substantial evidence

corroborating the victim’s statements of alleged abuse, rendering the officers’ reliance on those statements reasonable.

Id. at 1449-50. In this case, by contrast, defendants submit

that A.B.’s statements standing alone, without any corroborating evidence, provided probable cause to arrest Paul. Easton

provides no support for that proposition.10

[8] We hold that Jensen could not rely solely on the uncorroborated, inconsistent statements of this very young child to

establish probable cause to arrest Paul. Given A.B.’s age at

the time of the purported events and at the time she reported

them, as well as the inconsistencies noted above, A.B.’s statements, standing alone, were insufficient to establish probable

cause to seize Paul.11

10Indeed, the Tenth Circuit has cited its opinion in Easton for precisely

the opposite principle, describing Easton as a case involving statements by

child victims that were “independently corroborated by police investigation.” Cortez, 478 F.3d at 1119. 

11Requiring officers to conduct some further investigation to corroborate the allegations of a young child victim would not impose any substantial burden on law enforcement. In this case, for example, there were

several, easy approaches Jensen could have used to attempt to corroborate

A.B.’s statements, approaches which also would have allowed him to

learn that A.B. and her mother were less than credible. Jensen could have

verified that A.B. had lived with the Stoots and why she was living there;

determined whether A.B. could successfully identify Paul; and sought

medical information to assess whether A.B.’s 18-month-old allegations

were supported by any physical evidence. As it turned out, any such effort

to corroborate A.B.’s statements likely would have cast serious doubt on

her allegations, as her mother was engaged in an ongoing financial dispute

with the Stoots at the time of her allegations, and A.B. had a history of

mental health problems. 

10962 STOOT v. CITY OF EVERETT
B. QUALIFIED IMMUNITY

Even if Jensen did violate Paul’s Fourth Amendment rights

by seizing him without probable cause, Jensen may still be

entitled to qualified immunity if his conduct “ ‘[did] not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’ ” Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Defendants argue, and the

district court held, that Jensen is entitled to qualified immunity because “[a] reasonable officer in Detective Jensen’s

position could have believed that the statements by the victim

established probable cause.” Defendants argue, in other

words, that although Jensen was mistaken in his belief that

A.B.’s statements established probable cause, the mistake was

a reasonable one.

[9] The doctrine of qualified immunity “operates to ensure

that before they are subjected to suit, officers are on notice

their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (internal quotation marks omitted). In this case, the

Stoots have not cited a single case squarely holding that an

officer cannot rely solely on the statements of a child sexual

assault victim obtained during a personal interview to establish probable cause, nor are we aware of one. To the contrary,

although two circuit courts of appeals have held that uncorroborated hearsay statements of a child victim are insufficient

to establish probable cause, both of those opinions could be

read to imply — although we do not so read them — that the

officers lacked probable cause primarily because they had not

personally interviewed the victim and therefore had no basis

upon which to assess credibility. See Cortez, 478 F.3d at

1119; Shaw, 464 F.3d at 624. 

[10] In this case, of course, Jensen personally interviewed

the victim and determined that she was credible before he

seized Paul. Although we disagree with his assessment of

A.B.’s credibility and read the applicable case law as consisSTOOT v. CITY OF EVERETT 10963
tent with our conclusion, none of the cases cited by the Stoots

put him directly on notice that his decision to rely on A.B.’s

statements, without any corroboration, was unlawful. We

therefore affirm the district court’s judgment that he is entitled to qualified immunity on the Stoots’ Fourth Amendment

claim.

II. FIFTH AMENDMENT CLAIMS

The Stoots also allege that Jensen violated Paul’s Fifth

Amendment right against self-incrimination by coercing a

confession during the interrogation at Paul’s school. Defendants argue — and the district court held — that the Stoots

cannot state a claim under the Fifth Amendment because

Paul’s statements were never used against him at trial. For the

reasons set forth below we disagree.

A. “USE” OF A STATEMENT IN A “CRIMINAL CASE”

Our consideration of this coerced confession issue begins

with a fairly recent Supreme Court case, Chavez v. Martinez,

538 U.S. 760 (2003), which establishes the parameters of the

problem we face but does not solve it. Chavez addressed

whether a former criminal suspect could sue a police officer

under § 1983 for coercing a confession in violation of his

Fifth Amendment rights. Specifically, the police failed to give

the suspect, Oliverio Martinez, any Miranda warnings, and

interrogated him under circumstances alleged to be extremely

coercive. Martinez made several incriminating statements but

was never charged with any crime. Id. at 764. He subsequently brought suit under § 1983 for violation of his Fifth

Amendment right “not to be compelled in any criminal case

to be a witness against himself” and his Fourteenth Amendment substantive due process right to be free from coercive

questioning. Id. at 765 (internal quotation marks omitted).

[11] In a set of opinions, none of which commanded a

majority on the Fifth Amendment issue, the Court held that

10964 STOOT v. CITY OF EVERETT
coercive police questioning does not violate the Fifth Amendment, absent use of the statements in a criminal case. See id.

at 766 (“We fail to see how, based on the text of the Fifth

Amendment, Martinez can allege a violation of this right,

since Martinez was never prosecuted for a crime, let alone

compelled to be a witness against himself in a criminal case.”)

(Thomas, J., joined by Rehnquist, C.J., O’Connor, J., and

Scalia, J.); id. at 777-78 (describing “the core of the guarantee

against compelled self-incrimination” as “the exclusion of any

such evidence” and declining to “expand protection of the

privilege . . . to the point of [ ] civil liability” in the absence

of a more “powerful showing” that the conduct at issue placed

this “core guarantee, or the judicial capacity to protect it,” at

risk) (Souter, J., joined by Breyer, J.). The Court held that

unlawful police interrogation techniques might give rise to a

substantive due process claim under the Fourteenth Amendment, see id. at 773 (plurality opinion of Thomas, J.); id. at

779 (Souter, J.); id. at 787 (Stevens, J.); id. at 799 (Kennedy,

J.), but that the Fifth Amendment was not violated unless and

until allegedly coerced statements were used against the suspect in a criminal case.

Chavez poses but does not decide the issue we face, as the

Court had no occasion to explicate the sort of “use” in a

“criminal case” that gives rise to a Fifth Amendment violation. The plurality stated that “a ‘criminal case’ at the very

least requires the initiation of legal proceedings,” but, as Martinez never faced criminal charges, did not decide “the precise

moment when a ‘criminal case’ commences.” Id. at 766-67.

Justice Souter’s concurring opinion also did not discuss when

a statement has been “used” in violation of the Fifth Amendment, focusing instead on Martinez’s failure to demonstrate

that a damages remedy was necessary in every case of police

coercion to protect the Fifth Amendment right. See id. at 778-

79 (Souter, J., concurring).

[12] The Stoots’ Fifth Amendment claim in this case falls

squarely within the gray area created by Chavez. Unlike MarSTOOT v. CITY OF EVERETT 10965
tinez, who was never charged with any crime, Paul’s statements were used against him in (1) the Affidavit filed in

support of the Information charging him with child molestation; (2) a pretrial arraignment and bail hearing (the CrR 3.2

hearing);12 and (3) a pretrial evidentiary hearing (the CrR 3.5

hearing) to determine the admissibility of his confession. The

question is whether these forms of reliance on Paul’s statements constitute “use” in a “criminal case” under Chavez. We

conclude that (1) and (2) above do constitute such “use.”

Although we have not, after Chavez, addressed the scope

of the “use” concept for Fifth Amendment purposes, other circuit courts have, with mixed results. The Third, Fourth, and

Fifth Circuits have applied Chavez to bar recovery under the

Fifth Amendment unless the allegedly coerced statements

were admitted against the defendant at trial. See Burrell v.

Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005) (holding that

because plaintiff did not allege “any trial action that violated

his Fifth Amendment rights[,] . . . ipso facto, his [§ 1983]

claim fails”) (emphasis in original); Murray v. Earle, 405

F.3d 278, 285 (5th Cir. 2005); Renda v. King, 347 F.3d 550,

12Following oral argument in this case, we asked the Stoots to provide

documentation supporting their assertion that Paul’s statements were used

against him at arraignment on July 23, 2004. The Stoots have provided us

with copies of the clerk’s minute entry and a transcript of the July 23 hearing, as well as a copy of Washington Superior Court Rule 3.2, which governs pretrial release. We take judicial notice of these documents and

conclude, as the Stoots suggest, that the Superior Court necessarily took

Paul’s statements as described in the Information and supporting documents into account when setting conditions for his release. Rule 3.2 specifically requires the court to make a finding of probable cause or release

the accused without conditions, and the court did so. See Wash. Super. Ct.

Crim. R. 3.2. To determine appropriate conditions for release, the court is

to consider, inter alia, the “nature of the charge” based on “the available

information.” Wash. Super. Ct. Crim. R. 3.2(e). In this case, it appears that

the only “available information” on the nature of the alleged offense was

the Information and Affidavit of Probable Cause which, as noted above,

included Paul’s statements; the oral hearing did not involve the factual

allegations concerning the offense at all. 

10966 STOOT v. CITY OF EVERETT
552 (3d Cir. 2003). Emphasizing the Court’s description of

the Fifth Amendment privilege against self-incrimination as a

“trial right,” see Withrow v. Williams, 507 U.S. 680, 692

(1993), these courts have held “that it is the use of coerced

statements during a criminal trial, and not in obtaining an

indictment, that violates the Constitution.” Renda, 347 F.3d at

559; see also Burrell, 395 F.3d at 513-14 & n.4.

The Seventh and Second Circuits disagree. In Sornberger

v. City of Knoxville, Illinois, 434 F.3d 1006 (7th Cir. 2006),

the Seventh Circuit addressed the claims of a couple mistakenly arrested and charged with bank robbery. Id. at 1009-

12. During their investigation police interviewed the wife,

who falsely confessed to assisting her husband with the robbery but subsequently claimed that this confession was the

product of psychological coercion. Id. at 1011. Police used

this confession to support charges filed against the couple,

and the trial court denied a motion to suppress after a preliminary hearing. Id. at 1012. Charges were subsequently

dropped, and the Sornbergers then brought suit under § 1983.

Evaluating the wife’s Fifth Amendment claim, the Seventh

Circuit began by noting that “her ‘criminal case’ advanced

significantly farther than did that of the Chavez plaintiff, who

never had criminal charges filed against him at all. Teresa’s

statement, by contrast, allowed police to develop probable

cause sufficient to charge her and initiate a criminal prosecution.” Id. at 1025. Although the Seventh Circuit noted the

Third and Fourth Circuit’s decisions in Renda and Burrell, see

id. at 1025-26, it reached the opposite conclusion:

[W]e are satisfied that her unwarned statements were

used against her in a ‘criminal case’ and in a manner

that implicates the Self-Incrimination Clause. Before

charges against Teresa and her husband eventually

were dropped, a preliminary hearing was held to

determine whether probable cause existed to allow

the case against her to go to trial. Teresa’s confesSTOOT v. CITY OF EVERETT 10967
sion was offered by the prosecution to support a

determination of probable cause. Her confession was

then used to set the amount of bail . . . . At a subsequent arraignment on charges stemming from the . . .

robbery, Teresa’s confession was once again admitted before she was called upon to plead guilty or not

guilty.

Id. at 1026 (footnote omitted). Sornberger concluded that

“where, as here, a suspect’s criminal prosecution was not only

initiated, but was commenced because of her allegedly unwarned confession, the ‘criminal case’ contemplated by the

Self-Incrimination Clause has begun. . . . This use of Teresa’s

confession, if the confession is indeed found to have been

elicited without Miranda warnings, allows a suit for damages

under § 1983.” Id. at 1026-27 (emphasis in original). The

court specifically “refuse[d] to hold that the right against selfincrimination cannot be violated unless a confession is introduced in the prosecution’s case-in-chief at trial before the ultimate finder of fact.” Id. at 1027 n.15.

More recently, the Second Circuit joined the Seventh Circuit in rejecting the view that police coercion violates the

Fifth Amendment only if the confession is used at trial. In

Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007), government officials used allegedly coerced statements by Higazy as

the basis for filing a criminal complaint and opposing bail. Id.

at 167. The government later withdrew its complaint, and

Higazy was released. Id. He then filed a Bivens action against

federal officials. Id. at 168.

Although Higazy’s statements were never used against him

at a criminal trial, the Second Circuit held that the government’s use of his statements against him at the preliminary

bail hearing was a sufficient basis for alleging a violation of

his Fifth Amendment rights. Id. at 170. “Higazy’s initial

appearance . . ., which included the determination of whether

he would be detained or released on bail, was part of the crim10968 STOOT v. CITY OF EVERETT
inal case against Higazy,” held the Second Circuit, so the government’s use of coerced statements at that hearing violated

his Fifth Amendment rights.13 Id. at 173.

[13] We adopt the general approach of Sornberger and

Higazy: A coerced statement has been “used” in a criminal

case when it has been relied upon to file formal charges

against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status.

Such uses impose precisely the burden precluded by the Fifth

Amendment: namely, they make the declarant a witness

against himself in a criminal proceeding. Here, for example,

in the Affidavit of Probable Cause supporting the Information

and in the arraignment hearing, defendants essentially stated,

“Paul said [insert coerced statement here],” rendering Paul a

witness against himself.14 We therefore join the Second and

Seventh Circuits in holding that use of the coerced statements

at trial is not necessary for Paul to assert a claim for violation

of his rights under the Fifth Amendment.15

13Higazy reaffirmed the Second Circuit’s pre-Chavez ruling in Weaver

v. Brenner, 40 F.3d 527 (2d Cir. 1994), which held that “use or derivative

use of a compelled statement at any criminal proceeding,” including grand

jury proceedings, violates the declarant’s rights under the Fifth Amendment. Id. at 535 (emphasis omitted). Weaver specifically held that “use of

the statement at trial is not required.” Id.

14We do not agree with the Stoots’ circular argument that Paul’s statements were “used” against him at the pretrial hearing to determine the

admissibility of those same statements. Because we conclude that the

statements were “used” against Paul in the relevant sense in both the Affidavit of Probable Cause supporting the Information and at his arraignment, however, the fact that the statements were not “used” at the

admissibility hearing is of no moment. 

15We note that our conclusion is responsive to the concerns expressed

in Justice Souter’s concurring opinion in Chavez. Justice Souter noted that

his primary problem with plaintiff’s argument in Chavez was that he “offers no limiting principle or reason to foresee a stopping place short of liability in all [cases involving coerced statements].” 538 U.S. at 778-79. The

rule we adopt today, holding that the Fifth Amendment has been violated

only when government officials use an incriminating statement to initiate

STOOT v. CITY OF EVERETT 10969
B. CAUSATION

[14] Because Paul’s rights under the Fifth Amendment

were not violated until the allegedly coerced statements were

used against him in an affidavit filed by the prosecutor and at

arraignment, we must also decide whether the prosecutor’s

separate decision to rely on the statements in this manner

served, as a matter of law, as a superseding cause that precludes Jensen’s liability. See Higazy, 505 F.3d at 175; Murray, 405 F.3d at 289-93. Doing so, we conclude that on the

present record, a jury could conclude that the use of the allegedly coerced statements against Paul was a reasonably foreseeable consequence of Jensen’s decision to interrogate Paul

and file a police report detailing his alleged confession, and

that Jensen is therefore an appropriate defendant in this

§ 1983 suit.

Evaluating causation in this type of case requires us to consider two basic tort principles. See Higazy, 505 F.3d at 175;

Murray, 405 F.3d at 292. On one hand, government officials,

like other defendants, are generally responsible for the “natural” or “reasonably foreseeable” consequences of their

actions. Higazy, 505 F.3d at 175 (citing Monroe v. Pape, 365

U.S. 167, 187 (1961)); Murray, 405 F.3d at 292. At the same

time, however, liability may not attach if “an intervening

decision of an informed, neutral decision-maker ‘breaks’ the

chain of causation,” meaning that the harm to the plaintiff can

be traced more directly to an intervening actor. Murray, 405

F.3d at 292; see also Higazy, 505 F.3d at 175. The question

is therefore whether use of the allegedly coerced statements

was reasonably foreseeable to Jensen and, if so, whether some

intervening decision broke this chain of causation.

or prove a criminal charge, provides a sensible “stopping place.” In cases

like Chavez, where the suspect was never charged, there would be no violation. Similarly, in cases where police coerce a statement but do not rely

on that statement to file formal charges or oppose bail, the Fifth Amendment would not be implicated. 

10970 STOOT v. CITY OF EVERETT
[15] Like the other circuits to address this question, we

conclude that, absent unusual circumstances, a police officer

eliciting incriminating statements from a criminal suspect

“could reasonably have foreseen that a coerced confession

would be used against [the suspect] and would lead to [the

suspect’s] detention.” Higazy, 505 F.3d at 177; see also

McKinley v. City of Mansfield, 404 F.3d 418, 436-39 (6th Cir.

2005). By the time he went to Paul’s school to investigate

A.B.’s allegations, Jensen viewed Paul as a suspect in a criminal case. At the interrogation, he employed the “Reid technique” to confirm his suspicion that Paul was guilty of

molesting A.B. and then included several of Paul’s incriminating statements in his official police report. Absent some

evidence that Jensen later “attempted to prevent the use of the

allegedly incriminating statements . . . or that he never turned

the statements over to the prosecutor in the first place,”

McKinley, 404 F.3d at 439, a jury could infer that the subsequent uses of the statements to file criminal charges against

Paul and to set conditions for his release at arraignment were

reasonably foreseeable consequences of Jensen’s conduct.

Given that reasonable inference, the prosecutor’s decision

to use the allegedly coerced statements in the affidavit and at

arraignment did not serve, as a matter of law, as an intervening or superseding cause that cut off Jensen’s liability. Just as

a police officer may be held liable when a prosecutor files

criminal charges against a defendant without probable cause,

see Hartman v. Moore, 547 U.S. 250, 261-63 (2006), so too

may an officer be held liable for wrongfully procuring statements then used by the prosecutor to initiate legal proceedings, see McKinley, 404 F.3d at 439. Here, there is no doubt

that the prosecutor acted in reliance on the information Jensen

provided rather than independently, as the Affidavit of Probable Cause specifically states that it is “based entirely” on “information . . . obtained through police reports and witness

statements submitted by the [police department],” and “not on

[the prosecutor’s] personal knowledge.”

STOOT v. CITY OF EVERETT 10971
[16] We therefore join the Sixth Circuit in concluding that

ordinarily, “in actions brought under § 1983 for alleged violations of [the Fifth Amendment], it is the person who wrongfully coerces or otherwise induces the involuntary statement

who causes the violation of the [Fifth Amendment] privilege.”

McKinley, 404 F.3d at 439 (internal quotation omitted).

C. QUALIFIED IMMUNITY

Although we thus hold that the Stoots have alleged a violation by Jensen of Paul’s rights under the Fifth Amendment,

we also must decide whether Jensen is entitled to qualified

immunity because his conduct did not violate “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow, 457 U.S. at 818 (internal

quotation marks omitted). Defendants argue that Jensen is

entitled to qualified immunity because, “[i]n light of the holding[ ] in Chavez . . ., a reasonable police officer would believe

that a Fifth Amendment violation does not occur until the

coerced statement is used against the person during the trial

at which the suspect’s guilt is determined.” We disagree that

the uncertainty resulting from Chavez is pertinent to the qualified immunity determination. Jensen’s immunity cannot turn

on whether, and in what way, a prosecutor ultimately “used”

the statements allegedly coerced during Jensen’s interrogation

of Paul, as Jensen’s role in the constitutional violation ended

before that use.

At the time of the interrogation, Jensen was on notice under

clearly established law that if he failed to provide Paul with

appropriate Miranda warnings or physically or psychologically coerced a statement from Paul, the use of the confessions could ripen into a Fifth Amendment violation. That

there was some uncertainty as to precisely what “use” in a

criminal case would suffice does not matter. Qualified immunity is accorded so that reasonable officers are not deterred in

carrying out their duties vigorously. See Harlow, 457 U.S. at

806-07. The qualified immunity evaluation must therefore

10972 STOOT v. CITY OF EVERETT
focus on an officer’s duties, not on other aspects of the constitutional violation.

That the allegedly coerced confession did not “ripen” into

a Fifth Amendment violation until it was “used” against Paul

in a criminal case does not change this analysis, as Jensen had

no reason to believe that the statements would not be used

against Paul. See Higazy, 505 F.3d at 174. As the Second Circuit has explained, the reasonableness of a police officer’s

conduct in such a case depends on whether a reasonable officer in the defendant’s position “would have understood that

the confession allegedly coerced from [the suspect] would

have been used in a criminal case against [the suspect],” in

violation of his Fifth Amendment right to be free from compelled self-incrimination. See id. The question, in other words,

is not whether a reasonable officer could have discerned the

precise meaning of “use” in a criminal case under Chavez, but

rather whether the officer obtained the allegedly coerced

statements so that they could later be used against the suspect

in a criminal case.

[17] As we have already explained in Part B above, a

properly-instructed jury could find that some “use” of Paul’s

statements was reasonably foreseeable to Jensen at the time of

the interrogation. We thus join the Second Circuit in holding

that an officer is not entitled to qualified immunity where “[a]

reasonable fact finder could conclude that it was not reasonable for an officer to believe that it was constitutional to

coerce a confession and then to hand that information to a

prosecutor — without divulging the means by which the confession was acquired — for use in a criminal case.” Id. at 174-

75.

[18] The district court did not separately analyze the merits

of the Stoots’ Fifth Amendment claim, focusing instead on the

uncertainty in the lower courts regarding the meaning of

“use” under Chavez.

16 As we explain above, the meaning of

16In a footnote, the district court did state that “[a] Fifth Amendment

violation for a coercive interrogation was not clearly established where

STOOT v. CITY OF EVERETT 10973
“use” was irrelevant from Jensen’s perspective, as his role in

the potential violation of Paul’s Fifth Amendment rights was

complete the moment he turned over the allegedly coerced

statements to prosecutors. We therefore reverse the district

court’s order granting summary judgment to defendants on

this claim, and remand to the district court for further proceedings consistent with this opinion.

III. REMAINING CLAIMS

The Stoots raised several additional claims in the district

court, none of which have merit.

A. SUBSTANTIVE DUE PROCESS

First, the Stoots argue that Jensen’s coercive interrogation

techniques violated Paul’s right to substantive due process

under the Fourteenth Amendment. As noted above, Chavez

specifically held that claims for coercive interrogation can be

brought under the Fourteenth Amendment. See 538 U.S. at

773 (plurality opinion of Thomas, J.); id. at 779 (Souter, J.);

id. at 787 (Stevens, J.); id. at 799 (Kennedy, J.). The standard

for showing a Fourteenth Amendment substantive due process

violation, however, is quite demanding. Chavez refers to “police torture or other abuse” as actionable under the Fourteenth

Amendment, 538 U.S. at 773, and Justice Kennedy’s opinion

Detective Jensen provided Paul II with a Miranda warning, and could reasonably have believed that Paul II understood his rights.” It is not clear

whether the district court intended to pass on the merits of Paul’s Fifth

Amendment claim in this single sentence, as the district court did not provide any explanation for its conclusion that Jensen reasonably could have

believed that he had complied with Miranda and did not specifically

address the Stoots’ allegations to the contrary in their complaint. Moreover, the district court did not address the totality of Stoots’ Fifth Amendment claim, as, apart from their Miranda claim, the Stoots also allege that

Jensen made improper promises to Paul and engaged in psychological

coercion. 

10974 STOOT v. CITY OF EVERETT
states that “a constitutional right is traduced the moment torture or its close equivalents are brought to bear.” Id. at 789.

Such language is consistent with the general rule that “only

the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense’ ” and therefore a violation of

substantive due process. County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998) (quoting Collins v. Harker Heights, 503

U.S. 115, 129 (1992)). More specifically, a Fourteenth

Amendment claim of this type is cognizable only if the

alleged abuse of power “shocks the conscience” and “violates

the decencies of civilized conduct.” Id. at 846 (internal quotations omitted). 

[19] Jensen’s interrogation techniques, even when construed in the light most favorable to the Stoots, did not rise to

the level of a Fourteenth Amendment violation. The Stoots

allege that Jensen used “improper promises and threats . . . .

[that] clearly overcame whatever will this child could have in

denying these allegations.” They claim that because Paul was

“a developmentally delayed young boy, he could not fully and

accurately comprehend if these promises were reasonable, or

make an accurate assessment of the potential outcomes in the

same manner as an adult.” And they correctly note that under

this court’s precedent, psychological coercion is sufficient to

state a claim under the Fourteenth Amendment. See Cooper

v. Dupnik, 963 F.2d 1220, 1245 (9th Cir. 1992) (en banc).

While these allegations might be relevant to the question of

whether Paul’s confession was in fact voluntary and therefore

admissible, an issue the juvenile court resolved in Paul’s

favor, they fall below what is required to state a claim under

the Fourteenth Amendment. Noticeably lacking, for example,

is any allegation that Jensen “intended to injure [Paul] in

some way unjustifiable by any government interest,” as

required by precedent. Lewis, 523 U.S. at 849. Nor do the

cases cited by the Stoots support their position. Cooper, for

example, involved a calculated plan “to ignore the suspect’s

Constitutional right to remain silent as well as any request he

STOOT v. CITY OF EVERETT 10975
might make to speak with an attorney . . ., to hold the suspect

incommunicado, and to pressure and interrogate him until he

confessed,” in full recognition that such actions were unlawful under Miranda and would render any confession inadmissible at trial. 963 F.2d at 1224. This court described the

officers’ techniques as “sophisticated psychological torture”

designed to “extract a confession” after “hours of mistreatment,” the “twentieth-century inquisitorial version of the Star

Chamber.” 963 F.2d at 1248.

As nothing in the Stoots’ complaint alleges conduct of a

similar nature, we affirm the district court’s grant of summary

judgment to defendants on the Stoots’ Fourteenth Amendment

claim.

B. MUNICIPAL LIABILITY

[20] The Stoots also assert a claim for municipal liability,

arguing that the City’s policies led to the violation of Paul’s

rights. But the Stoots have not shown that any constitutional

violation was caused by a policy or custom of the City of

Everett, as required to impose municipal liability. See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978).

With regard to the Fourth Amendment claim, the Stoots

allege that the City routinely violated its own policy of requiring all child victims under the age of ten to be interviewed by

a child victim specialist. The Stoots maintain that the official

policy demonstrates the City’s awareness of “the problem of

child suggestibility” in forensic interviews, and that its de

facto policy of ignoring these guidelines shows that the City

was deliberately indifferent to the risk of false allegations.

This argument is unpersuasive, for two reasons. 

First, as discussed above, see supra note 9, we have previously held that a person suspected of child abuse does not

enjoy any constitutional right “to have child witnesses . . .

interviewed in a particular manner or pursuant to a certain

10976 STOOT v. CITY OF EVERETT
protocol,” even when allegedly improper techniques lead to

false accusations. See Devereaux, 218 F.3d at 1053. The fact

that the city violated its own written policy in this regard is

thus irrelevant, as that policy did not create any rights remediable under § 1983. 

Second, as the district court noted, “there is no evidence

that Detective Jensen was unqualified to interview A.B.”

Rather, the record reflects that Jensen had 280 hours of training focused on child physical and sexual abuse, and 32 hours

on forensic child interviewing techniques. We therefore cannot fault any city policy or practice that permitted Jensen to

interview A.B., as he appears well-qualified to have done so.

With regard to the Fifth Amendment claim, the Stoots

allege that the City failed to properly train or supervise Jensen

in conducting juvenile interrogations, and that the continued

use of the so-called “Reid technique” of blaming the victim

“amount[s] to a deliberate indifference to the need to protect

the most vulnerable members of society.” Again, however,

the Stoots have failed to identify any case law establishing

that a particular interview technique, applied to juveniles, violates their constitutional or statutory rights, nor have they

identified any incident other than Paul’s to corroborate their

claims of deliberate indifference.

In short, the Stoots have failed to provide any evidence that

the violation of Paul’s rights resulted from a policy or practice

of the City of Everett that repeatedly caused such violations.

We therefore affirm the district court’s grant of summary

judgment to defendants on this claim.

C. STATE LAW CLAIM FOR OUTRAGE

[21] Finally, the Stoots allege a state law claim for intentional infliction of emotional distress or “outrage.” This state

law cause of action requires showing, inter alia, “extreme and

outrageous conduct” and “intentional or reckless infliction of

STOOT v. CITY OF EVERETT 10977
emotional distress,” see Grimsby v. Samson, 530 P.2d 291,

295 (Wash. 1975), an exacting standard. “Liability exists only

where the conduct has been [s]o outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation omitted). Applying this standard, the Stoots’ state law claim fails

for the same reasons outlined above with respect to substantive due process. We therefore affirm the district court’s grant

of summary judgment to defendants on this claim as well.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment to defendants on all claims, except the Fifth Amendment

coerced confession claim. With regard to that claim, we

REVERSE the district court’s order granting summary judgment to Jensen and remand for further proceedings. The parties shall bear their own costs on appeal.

10978 STOOT v. CITY OF EVERETT