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III. An interrogation contrary to the procedural
due process voluntariness standard is not sufficient
to support a civil rights action.

Interrogations can produce constitutional torts that support an action under 42 U. S. C. §1983. A brutal interrogation such as the one in the notorious case of Brown v. Mississippi, 297 U. S. 278, 281-282 (1936) would now produce both civil liability under §1983 and criminal prosecution. See Williams v. United States, 341 U. S. 97, 101-102 (1951) (criminal prosecution). But the Brown decision itself only involved the exclusion of evidence, not civil liability. In Brown, this Court held that due process required the exclusion of a confession obtained through such methods. See 297 U. S., at 286. Brown and successive Supreme Court opinions have established that admitting an involuntary confession in a criminal trial violates due process. Like the self-incrimination privilege, this line of cases regulates the admissibility of evidence, and it is thus an aspect of procedural due process. While some interrogation methods that produce involuntary confessions will support a civil rights action, many will not. Procedural due process excludes the fruits of interrogations that involve far less coercion than in Brown. See infra, at 25-26.

The standard of the procedural due process line of cases was created for a different purpose and is not suited as the standard for civil liability. The proper scope of civil or criminal liability for interrogations is the standard of substantive due process. See Rochin v.California, 342 U. S. 165, 172 (1952). Sergeant Chavez did not cross the line of a properly defined substantive due process standard, and he is entitled to qualified immunity.

A. Procedural Due Process and Evidence.

Analysis of the due process confession cases begins with an understanding of how this Court uses the term "coercion." Some form of official coercion is a prerequisite to invalidating a confession under due process. See Colorado v. Connelly, 479 U. S. 157, 164 (1986). However, the scope of what is considered "coercion" is now far greater than just force or the threat of force. The prohibition against "coerced" confessions now also regulates "more subtle forms of psychological persuasion . . . ." Ibid. The term "coercion," while constitutionally significant, is best seen as a label for "the crucial element of police overreaching." See id., at 163. While the coercive conduct must be "substantial," see id., at 164, it need not involve "gross abuses . . . ." Mincey v. Arizona, 437 U. S. 385, 401 (1978).

Coercion cannot be separated from the concept of voluntariness. While coercion is integral to any due process violation, the test for determining a confession's constitutionality under due process is a "voluntariness test." See Dickerson v. United States, 530 U. S. 428, 434 (2000). The two concepts are so closely related that "prior cases have used the terms 'coerced confession' and 'involuntary confession' interchangeably 'by way of convenient shorthand.' " Arizona v. Fulminante, 499 U. S. 279, 287, n. 3 (1991) (quotingBlackburn v. Alabama, 361 U. S. 199, 207 (1960)). The voluntariness test "examines 'whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession." Dickerson, supra, at 434 (quoting Schneckloth v. Bustamonte, 412 U. S. 218, 226 (1973)). The relevant inquiry includes "the totality of all surrounding circumstances--both the characteristics of the accused and the details of the interrogation." Schneckloth, at 226. Therefore, when a court labels a confession as "involuntary" or "coerced" it is important to understand that this term is a label that describes a complex inquiry. See Miller v. Fenton, 474 U. S. 104, 116 (1985). Practices that are not particularly "coercive" as that term is commonly understood, like inducements, can still render a confession involuntary by overcoming the suspect's will. See supra, at 25-26.

It is similarly important to understand how the due process clause regulates confessions. Like the self-incrimination privilege, theBrown line regulates confessions through the exclusion of involuntary confessions. Thus the due process question frequently is framed in the context of excluding evidence. See, e.g., Haynes v. Washington, 373 U. S. 503, 504 (1963) (deciding "whether the admission of the petitioner's . . . confession into evidence against him at trial constituted a denial of due process of law" (emphasis added)); Spano v.New York, 360 U. S. 315, 315 (1959) (raising the issue of whether the defendant's "confession was properly admitted under the Fourteenth Amendment"). " 'The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.' " Connelly, 479 U. S., at 167 (quoting Lisenba v. California, 314 U. S. 219, 236 (1941)).

The prohibition against the use of involuntary or coerced confessions that has evolved since Brown is a form of procedural due process. See Klein, Miranda Deconstitutionalized: When the Self-Incrimination Clause and the Civil Rights Act Collide, 143 U. Penn. L. Rev. 417, 465 (1994) ("Most, if not all, coerced confession cases are procedural due process cases"). An early due process confession case characterized the prohibition against the admission of involuntary confessions as a matter of procedural due process. See Chambers v.Florida, 309 U. S. 227, 237 (1940). Prohibiting the taking and subsequent use of involuntary confessions is a matter of fundamental fairness, see, e.g., Connelly, 479 U. S., at 167; Miller, 474 U. S., at 110; Michigan v. Tucker, 417 U. S. 433, 441 (1974), which is a component of a procedural due process inquiry. See, e.g., Medina v. California, 505 U. S. 437, 448 (1992); Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 320 (1985).

The importance of fair procedures separates procedural from substantive due process. Substantive due process raises a standard "barring certain government actions regardless of the procedures used to implement them." Daniels v. Williams, 474 U. S. 327, 331 (1986); see also Brief for the Criminal Justice Legal Foundation as Amicus Curiae in Connecticut Dept. of Public Safety v. Doe, No. 01-1231, at 4-7. Since the voluntariness standard guarantees a fair procedure--a trial free from involuntary confessions--this guarantee should not be characterized as part of a substantive due process inquiry that looks beyond whether the action was implemented in a fair manner. Given its basis in the exclusion of evidence and fundamental fairness, the voluntary confession requirement is part of procedural due process.

Procedural due process only requires the state provide the procedure that is due, not any particular result. See Walters, 473 U. S., at 321. In criminal cases, this is a fair trial, see Daniels, 474 U. S., at 337 (Stevens, J., concurring), a trial with all the procedures required under due process. In the context of the voluntary confession requirement, that is a trial where an involuntary confession is not admitted against the defendant. Therefore, due process is not violated unless an involuntary confession is used to incriminate the defendant at trial.

Coercion alone will not support a procedural due process violation. As the immunity cases demonstrate, coercive interrogation is constitutional when the threat of self-incrimination is removed. See Kastigar v. United States, 406 U. S. 441, 448-449 (1972) (the government can compel testimony if the speaker is granted immunity). The threat of imprisonment for failing to answer the government's questions is much more coercive than the "more subtle" forms of persuasion proscribed by the Due Process Clause. Cf.Connelly, 479 U. S., at 164. ⁽²⁾ Without incrimination, there is no procedural due process violation.

B. Due Process and Policy.

Allowing civil damages for violations of the procedural due process voluntariness standard also threatens public safety. Police interrogation is a public good, not a necessary evil. The Miranda decision recognized that confessions are a "proper element in law enforcement." Miranda v. Arizona, 384 U. S. 436, 478 (1966). "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved." Schneckloth, 412 U. S., at 225. " 'Questioning suspects is indispensable in law enforcement.' " Culombe v. Connecticut, 367 U. S. 568, 578 (1961) (opinion of Frankfurter, J.).

It is true that the benefit to society is limited to voluntary confessions. Cf. McNeil v. Wisconsin, 501 U. S. 171, 181 (1991) ("Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good . . ."). If the line between voluntary and involuntary confessions were clear, then there would be no additional cost to society for adding civil liability to the remedies for failing to adhere to the voluntariness standard. Unfortunately, the voluntariness test is far from clear.

"The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw . . . ." Haynes, 373 U. S., at 515. Dissatisfaction with applying the voluntariness test was a motivation behind Miranda's comparatively bright-line rule. See Michigan v. Mosley, 423 U. S. 96, 113 (1975) (Brennan, J., dissenting); Stone, The MirandaDoctrine in the Burger Court, 1977 Sup. Ct. Rev. 99, 102-104. One reason for the Miranda rule is that it provides at least a "brighter-line" rule than the due process standard. See Withrow v. Williams, 507 U. S. 680, 694 (1993).

A myriad of objective and subjective factors governs the voluntariness inquiry. "Those potential circumstances include not only the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition, and mental health." Id., at 693 (citations omitted). This "exhaustive totality-of-circumstances approach," see id., at 694, is further complicated by the elusive concept of voluntariness.

"Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements--even those made under brutal treatment--are 'voluntary' in the sense of representing a choice of alternatives. On the other hand, if 'voluntariness' incorporates notions of 'but-for' cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind." Bator & Vorenberg, Arrest, Detention, Interrogation, and the Right to Counsel: Basic Problems and Possible Legislative Solutions, 66 Colum. L. Rev. 62, 72-73 (1966).

Therefore, the due process standard has been rightly criticized as giving too little guidance to the police. See Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 869 (1991). The inherent subjectivity of determining when the suspect's "will was overborne,"Schneckloth, 412 U. S., at 226, further complicates the inquiry. Determining one's will is inherently subjective. Thus factors such as the suspect's education, intelligence, or adaptation to the stress of incarceration influence the admissibility of the confession under the voluntariness standard. See Fulminante, 499 U. S., at 286, n. 2. This means that interrogation that is acceptable in some contexts can render the confession inadmissible due to certain characteristics of the suspect, which further complicates an already muddled issue.

This Court has recognized the considerable criticism of the voluntariness standard. See Miller, 474 U. S., at 116, n. 4. The complexity of this standard was a substantial reason to not apply the rule of Stone v. Powell, 428 U. S. 465 (1976) to Miranda. Precluding Mirandaclaims from federal habeas corpus would not lessen the workload of the federal courts, because the Miranda inquiry would be replaced by the considerably more complex voluntariness issue. See Withrow, 507 U. S., at 693-694.

The threat of civil litigation can deter public employees from exercising their duties properly. See Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982). While the qualified immunity defense is predicated upon providing government officials with an objective standard of liability, see Wyatt v. Cole, 504 U. S. 158, 166 (1992), the vagueness and subjectivity of the voluntariness standard threatens to overwhelm this defense.

Many confessions can be deemed involuntary yet not the product of particularly "coercive" interrogation, as that term is commonly understood. Promises by the interrogator can lead to a confession being declared involuntary. Thus courts have struck down confessions made in response to promises of "nonprosecution, the dropping of some charges, medical treatment, or a certain reduction in the punishment defendant may receive . . . ." See 2 W. LaFave, J. Israel, & N. King, Criminal Procedure §6.2(c), pp. 453-454 (2d ed. 1999) (footnotes omitted). For example, one court struck down a confession induced by a promise to help the defendant get counseling after confessing. See People v. Shaw, 180 Ill. App. 3d 1091, 1094-1096, 536 N. E. 2d 849, 851-852 (1989). This Court has struck down a confession induced by a promise from a police informant to protect the defendant from his fellow prisoners, an admittedly "close question." See Fulminante, 499 U. S., at 287. It has also struck down a confession induced by a promise to a suspect in custody that he would be allowed to call his wife after confessing. See Haynes, 373 U. S., at 514. These cases illustrate that a confession can be involuntary even if there is little actual coercion or official misconduct. Civil liability should rest on sterner stuff.

The present case highlights the problems with the voluntariness standard. Mincey v. Arizona, 437 U. S. 385 (1978), the closest case, is distinguishable on several grounds. Mincey repeatedly asked for counsel, and the interrogation lasted continuously from 8:00 p.m. until midnight. The interview of Martinez took only around 45 minutes. See Pet. for Cert. 3. Martinez never asked for counsel, but only indicated twice that he would not answer any questions until he was treated. See supra, at 2.

The most important difference is that Martinez was never "compelled in any criminal case to be a witness against himself." Cf. U. S. Const., Amdt. 5. While Mincey's interview was used to impeach his testimony at his criminal trial, see 437 U. S., at 397, Martinez has not been prosecuted. See supra, at 2. Sergeant Chavez thought that Martinez was going to die. See Pet. for Cert. 3. If he had been right, then the interview would have been the only way to get Martinez's side of the story. The only ones who might have been threatened by the interview were the officers involved in the shooting. While Martinez lived to tell his story, this does not change the nature of the interview. Miranda would have prevented Martinez's statements from being used against him, but it would not have prevented any of his statements from being used for or against Officers Peña or Salinas in subsequent disciplinary, civil, or criminal proceedings. See Baxter v. Palmigiano, 425 U. S. 308, 317 (1976) (no Fifth Amendment violation without criminal prosecution). Allowing this comparatively benign interrogation to support civil liability threatens to straightjacket the police in the interrogation room.

The voluntariness standard in this case provided weak cover for finding civil liability for questioning contrary to Miranda. The vagueness of the procedural due process standard means that this will be repeated unless courts are foreclosed from basing civil liability upon questioning contrary to this procedural due process standard. While grossly improper interrogation can support civil liability, a more concrete standard and a greater level of harm are needed.

C. Alternatives.

Something more serious than a violation of the procedural due process voluntariness standard is needed to support civil liability for an interrogation.

"Liability is appropriate, however, only when the constitutional violation is complete, and causes injury, out of court. A prosecutor could be liable for depriving a suspect of food and sleep during an interrogation, or beating him with a rubber truncheon, or putting bamboo shoots under his fingernails." Buckley v. Fitzsimmons, 919 F. 2d 1230, 1244 (CA7 1990), rev'd on other grounds, Buckley v. Fitzsimmons, 509 U. S. 259 (1993).

This passage from the Seventh Circuit's opinion is taken in the context of allowing prosecutors absolute immunity for Fifth Amendment or Miranda violations because they involve trial rights. See 919 F. 2d, at 1244. It also asserts that coercive interrogation would only be afforded qualified immunity. See ibid. However, not every act of "coercion" involves pretrial harm to the suspect. Civil liability should be limited to gross coercions like those listed in the Buckley passage, but not the more subtle forms of coercion that also fall within the procedural due process standard.

Interrogators should be held liable under 42 U. S. C. §1983 for violence, the deprivation of food, water, sleep, or other life necessities or threats to commit such wrongs against the suspect. This approach has several related advantages over the voluntariness standard. First, it limits liability to clearly identifiable harms that are complete without regard to the admissibility of evidence. It also provides an objective standard that is much easier to understand than the murky voluntariness test. Finally, under this standard there is no real risk of deterring worthwhile, legal interrogation. Violence and deprivation, whether real or threatened, have no place in the interrogation room. More subtle forms of psychological pressure can produce constitutionally valid confessions in the right context. See supra, at 24-25.

This Court has once invoked due process to regulate interrogation through criminal sanctions on the interrogating officers. In Williamsv. United States, supra, the Court held that officers who beat a confession out of a suspect could be prosecuted for violating the suspect's due process rights under the predecessor of 18 U. S. C. §242. See 341 U. S., at 101-102. However, not every interrogation that resulted in an involuntary confession would necessarily lead to criminal sanction. "Some day the application of [18 U. S. C. §242] to less obvious methods of coercion may be presented and doubts to the adequacy of the standard of guilt may be presented." ⁽³⁾ Ibid. InWilliams, the suspects' interrogation consisted of brutal beatings and other forms of physical abuse. Id., at 98-99. "Hence when officers wring confessions from the accused by force and violence, they violate some of the most fundamental, basic, and well-established constitutional rights which every citizen enjoys." Id., at 101-102 (emphasis added).

This distinction has constitutional significance. Force, the threat of force, or the deprivation of food, water, or sleep during interrogation violates substantive due process. Unlike the procedural due process prohibition against the use of coerced confessions, this right is violated without regard to whether the suspect is in fact incriminated. The violation is complete with the beatings.

The Seventh Circuit's decision in Buckley has been characterized as a substantive due process holding. See Klein, MirandaDeconstitutionalized: When the Self-Incrimination Clause and the Civil Rights Act Collide, 143 U. Penn. L. Rev. 417, 451-452 (1994). This Court has recognized that the use of force by government officials that "shocks the conscience" violates substantive due process. See County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998). Like any standard, this test can be misapplied. See Klein, supra, at 454; Gardner, Section 1983 Actions Under Miranda: A Critical View of the Right to Avoid Interrogation, 30 Am. Crim. L. Rev. 1277, 1307 (1993) (criticizing the substantive due process holding of Cooper v. Dupnik, 963 F. 2d 1220, 1237 (CA9 1992) (en banc)). A properly calibrated standard as suggested by the Seventh Circuit's holding in Buckley provides adequate protection and an appropriately concrete standard.

The Buckley standard is also consistent with Lewis. The Lewis Court noted that the intentional infliction of harm is much more likely to shock the conscience than negligent or reckless harm. See 523 U. S., at 849. An interrogation practice that violates substantive due process will involve an intentional violation of the right, like a beating. Therefore there should be no difficulty in finding the conduct shocking to the court's conscience under the appropriate standard.

While other constitutional standards are available, they are wanting. This Court has left open the question of whether the Fourth Amendment's prohibition of unreasonable seizures applies to detainees after the arrest has been completed. See Graham v. Connor, 490 U. S. 386, 395, n. 10 (1989). Extending the Fourth Amendment to pretrial detainees raises difficult questions, see United States v. Cobb, 905 F. 2d 784, 788, n. 7 (CA4 1990), that need not be answered in this case. Graham also mentioned that pretrial detainees had a due process right to be free "from the use of excessive force that amounts to punishment." See 490 U. S., at 395, n. 10 (citing Bell v.Wolfish, 441 U. S. 520, 535-539 (1979)). Interrogation and prisoner rights are separate issues that should not be mixed. The substantive due process standard of Buckley does not need to be supplemented by Bell's foreign standard.

The fact that a federal appellate court has allowed a §1983 action for Sergeant Chavez's brief, comparatively benign questioning demonstrates the need to clarify the law. This Court should limit §1983 liability for interrogation to the gross violation that leads to real harm other than the suspect's incriminating statement. Limiting money damages to physical harm, threats of harm, or substantial deprivations will afford suspects appropriate compensation, while limiting unwarranted assaults on police practices.

CONCLUSION

The decision of the United States Court of Appeals for the Ninth Circuit should be reversed.

September, 2002

Respectfully submitted,

Charles L. Hobson

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2. Although the coerced confession test comes from due process rather than the Fifth Amendment, there should be little difference between the level of compulsion that violates procedural due process and that which violates the Fifth Amendment. Brown was decided before the incorporation of the Fifth Amendment. The fact that due process is still used to analyze involuntary confessions is a "historical accident." Cooper v. Dupnik, 924 F. 2d 1520, 1529, n. 17 (CA9 1991), rev'd, Cooper v. Dupnik, 963 F. 2d 1220 (CA9 1992) (en banc).

3. The standard of clarity of pre-existing law for finding civil liability under 42 U. S. C. §1983 is the same as for finding criminal liability under 18 U. S. C. §242. United States v. Lanier, 520 U. S. 259, 270-271 (1997).