Crowe v. Wrisley

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CROWE; STEPHEN CROWE; 
CHERYL A. CROWE; JUDITH ANN
KENNEDY; SHANNON CROWE, a
minor, through guardian ad litem
STEPHAN CROWE; ZACHARY
TREADWAY; JOSHUA DAVID
TREADWAY; MICHAEL LEE
TREADWAY; TAMMY TREADWAY;
JANET HASKELL; MARGARET SUSAN
HOUSER; CHRISTINE HUFF; GREGG
HOUSER; AARON HOUSER,
Plaintiffs-Appellees,
No. 05-55467
v.
 D.C. No.
COUNTY OF SAN DIEGO; THE CV-99-00241-JSR
CITY OF OCEANSIDE; CHRIS
MCDONOUGH; GARY HOOVER;
SUMMER STEPHAN; LAWRENCE
BLUM; CITY OF ESCONDIDO;
NATIONAL INSTITUTE FOR TRUTH
VERIFICATION; RICK BASS,
Defendants,
and
MARK WRISLEY; BARRY SWEENEY;
RALPH CLAYTOR; PHIL ANDERSON,
Defendants-Appellants.

1547
1548 CROWE v. WRISLEY
MICHAEL CROWE; STEPHEN CROWE; 
CHERYL A. CROWE,
Plaintiffs-Appellants,
SHANNON CROWE, a minor, through
guardian ad litem, STEPHAN
CROWE,
Plaintiff-Appellant,
and
JUDITH ANN KENNEDY,
Plaintiff,
ZACHARY TREADWAY; JOSHUA DAVID
TREADWAY; MICHAEL LEE
TREADWAY; TAMMY TREADWAY;
JANET HASKELL; MARGARET SUSAN No. 05-55542
HOUSER; CHRISTINE HUFF; GREGG
HOUSER; AARON HOUSER,  D.C. No.
Plaintiffs, CV-99-00241-JSR
v.
COUNTY OF SAN DIEGO; THE
CITY OF OCEANSIDE; CHRIS
MCDONOUGH; GARY HOOVER;
SUMMER STEPHAN; LAWRENCE
BLUM; CITY OF ESCONDIDO;
NATIONAL INSTITUTE FOR TRUTH
VERIFICATION; RICK BASS,
Defendants,
and
MARK WRISLEY; BARRY SWEENEY;
RALPH CLAYTOR; PHIL ANDERSON,
Defendants-Appellees.

CROWE v. WRISLEY 1549
STEPHEN CROWE; CHERYL CROWE; 
JUDITH ANN KENNEDY; SHANNON
CROWE, a minor through their
guardian ad litem, STEPHEN CROWE;
ZACHARY TREADWAY; JOSHUA DAVID
TREADWAY; MICHAEL LEE
TREADWAY; TAMMY TREADWAY;
JANET HASKELL,
Plaintiffs,
CHRISTINE HUFF,
Plaintiff, No. 05-56311
and  D.C. No.
CV-99-00241-JSR
MARGARET SUSAN HOUSER; GREGG
HOUSER; AARON HOUSER,
Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO; MARK
WRISLEY; BARRY SWEENEY; RALPH
CLAYTOR; CITY OF ESCONDIDO;
PHILLIP ANDERSON; SUMMER
STEPHAN; RICK BASS, Lieutenant,
Defendants-Appellees.

1550 CROWE v. WRISLEY
MICHAEL CROWE; STEPHEN CROWE; 
CHERYL A. CROWE; JUDITH ANN
KENNEDY; SHANNON CROWE, a
minor, through guardian ad litem
STEPHEN CROWE,
Plaintiffs-Appellants,
and
ZACHARY TREADWAY; JOSHUA DAVID
TREADWAY; MICHAEL LEE
TREADWAY; TAMMY TREADWAY; No. 05-56364
JANET HASKELL; MARGARET SUSAN
D.C. No.
HOUSER; CHRISTINE HUFF; GREGG
HOUSER; AARON HOUSER,  CV-99-00241-JSR
Plaintiffs, ORDER AND
AMENDED
v.
OPINION
COUNTY OF SAN DIEGO; THE
CITY OF OCEANSIDE; CHRIS
MCDONOUGH; GARY HOOVER;
SUMMER STEPHAN; LAWRENCE
BLUM; CITY OF ESCONDIDO;
NATIONAL INSTITUTE FOR TRUTH
VERIFICATION; RICK BASS; MARK
WRISLEY; BARRY SWEENEY; RALPH
CLAYTOR; PHIL ANDERSON,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
John S. Rhoades, District Judge, Presiding
Argued and Submitted
June 1, 2008—Pasadena, California
Filed January 14, 2010
Amended January 27, 2010
CROWE v. WRISLEY 1551
Before: Stephen S. Trott, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Thomas
1556 CROWE v. WRISLEY
COUNSEL
Milton J. Silverman (argued), Robert T. Geile, Law Office of
Milton J. Silverman; attorneys for plaintiffs-appellants and
Cross-Appellees Michael Crowe, Stephen Crowe, Cheryl
Crowe, and Shannon Crowe.
Jon R. Williams (argued), Lindsay J. Reese, Ross, Dixon &
Bell; Dennis A. Schoville, Louis G. Arnell, James S. Iagmin,
Schoville & Arnell; attorneys for plaintiffs-appellants and
cross-appellees Aaron Houser, Margaret Susan Houser, and
Gregg Houser.
CROWE v. WRISLEY 1557
John J. Sansone, County Counsel, County of San Diego,
George W. Brewster Jr. (argued), Senior Deputy; attorneys
for defendant-appellant Summer Stephan.
Richard J. Schneider, Glnar J. Fozi, Daley & Heft; Steven J.
Renick (argued), Manning & Marder, Kass Ellrod, Ramirez;
attorneys for defendants-appellees and Cross-Appellants City
of Escondido, Mark Wrisley, Barry Sweeney, Ralph Claytor,
and Phil Anderson.
Diana L. Field, Ferguson, Praet & Sherman; Timothy T.
Coates, Cynthia T. Tobisman, Greines, Martin, Stein & Rich-
land; attorneys for defendants-appellees and cross-appellants
City of Oceanside, Oceanside Police Department, and Chris-
topher McDonough.
Kenneth H. Moreno, Scott J. Loeding, Murchinson & Cum-
ming; attorneys for defendant-appellee Lawrence N. Blum,
Ph.D.
ORDER
The opinion filed on January 14, 2010 is hereby amended
as follows. The paragraph beginning at the bottom of Slip.
Op. page 1115 and continuing onto page 1116 is to be deleted
and the following inserted.
We reverse the district court’s grant of summary judgment
as to: (1) Michael and Aaron’s Fifth Amendment claims; (2)
Michael and Aaron’s Fourteenth Amendment substantive due
process claims; (3) all otherwise surviving Fourth Amend-
ment claims against McDonough; (4) all otherwise surviving
claims against Blum; (5) the Crowes’ deprivation of familial
companionship claim based on Michael’s detention; (6) the
Housers’ deprivation of familial companionship claim based
on Aaron’s detention; and (7) all otherwise surviving claims
1558 CROWE v. WRISLEY
against the Cities of Escondido and Oceanside. We affirm the
district court’s grant of summary judgment as to: (1) Aaron’s
Fourth Amendment claim that police lacked probable cause to
arrest him; (2) Michael’s Fourth Amendment claim that police
lacked probable cause to arrest him; (3) Michael’s claim that
police violated his Fourth Amendment rights by strip search-
ing him; (4) Aaron’s Fourth Amendment claim that the war-
rants authorizing the search of his home were not supported
by sufficient probable cause; (5) the conspiracy claims against
McDonough; (6) Michael and Aaron’s defamation claims
against Stephan; and (7) Aaron’s defamation claim against
Blum. Additionally, we affirm the district court’s denial of
summary judgment as to: (1) Cheryl, Stephen, and Shannon
Crowes’ claims that police violated his Fourth Amendment
rights by strip searching them; (2) Cheryl and Stephen’s
Fourth Amendment claims that the warrant authorizing police
to draw blood samples was not supported by probable cause;
(3) Cheryl and Stephen’s Fourth Amendment claims of
wrongful detention; and (4) the Crowes’ deprivation of famil-
ial companionship claims based on the placement of Michael
and Shannon in protective custody. We remand to the district
court for further proceedings consistent with this opinion.
Each party shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.
OPINION
THOMAS, Circuit Judge:
This civil rights case arose from the investigation and pros-
ecution of innocent teenagers for a crime they did not commit.
Michael Crowe, Aaron Houser, and Joshua Treadway were
wrongfully accused of the murder of Michael’s 12-year-old
CROWE v. WRISLEY 1559
sister Stephanie Crowe. After hours of grueling, psychologi-
cally abusive interrogation—during which the boys were iso-
lated from their families and had no access to lawyers—the
boys were indicted on murder charges and pre-trial proceed-
ings commenced.
A year later, DNA testing revealed Stephanie’s blood on
the shirt of a transient, Richard Tuite, who had been seen in
the Crowes’ neighborhood on the night of the murder and
reported by several neighbors for strange and harassing
behavior. The shirt had been collected as part of the initial
investigation, but never fully tested. Charges against the boys
were eventually dropped, and Tuite was convicted of Stepha-
nie’s murder.
Michael, Aaron, Joshua, and their families filed a com-
plaint against multiple individuals and government entities
who had been involved in the investigation and prosecution of
the boys. The complaint alleged, amongst other claims, con-
stitutional violations under the Fourth, Fifth, and Fourteenth
Amendments, and defamation claims. In two separate orders,
the district court granted summary judgment in favor of the
defendants as to the majority of the plaintiffs’ claims. The
Crowes and the Housers now appeal the bulk of those orders
and several defendants cross-appeal the district court’s denial
of summary judgment on qualified immunity grounds as to
several claims. We affirm in part and reverse in part.
I. Facts and Procedural History
A. The Crime and Initial Investigation
On the night of January 20, 1998, police received several
911 phone calls reporting that a man—later identified as
Richard Tuite—was bothering people in the neighborhood in
which the Crowe family resided. Witnesses testified that Tuite
appeared drunk or high. One witness heard him yell “I’m
going to kill you you fucking bitch.” Another witness saw
1560 CROWE v. WRISLEY
him spinning around in circles. Between 7:00 p.m. and 8:00
p.m., Tuite entered one house in the neighborhood after the
occupant, Dannette Mogelinski, mistook his knock for that of
a neighbor. Tuite repeatedly asked for Tracy. Mogelinski said
she did not know Tracy. Tuite left, but then opened the door
and again asked for Tracy. Mogelinski again said she did not
know Tracy, and Tuite left. Around 7:50 p.m. Shannon Homa
called 911 to report a man behaving strangely in an area near
the Crowes’ home. At approximately 9:28 p.m., Gary West,
a neighbor of the Crowes, called 911 to report a transient who
had knocked on his door and said he was looking for a girl.
Escondido police officer Scott Walters was dispatched to
the area. As Officer Walters drove toward the Crowe house,
he noticed a door next to the garage close. He could not see
who closed the door. Officer Walters then noted in his log that
the transient was “gone on arrival” and left the scene at 9:56
p.m.
Sometime between 10:00 p.m. and 11:00 p.m., 12-year-old
Stephanie Crowe was stabbed to death in her bedroom. An
autopsy determined that Stephanie was stabbed numerous
times with a knife with a 5-6 inch blade.
Stephanie was found dead by her grandmother the next
morning around 6:30 a.m. Paramedics were the first to
respond to the 911 call. Defendant Escondido Police Depart-
ment Detective Barry Sweeney arrived on the scene shortly
thereafter. Police checked all of the doors and windows in the
house and found no signs of forced entry. However, they did
discover that a door leading to the master bedroom, a door
located near the garage,1 and at least one window had not
been locked during the night.
Police questioned all of the members of the Crowe house-
hold at the Escondido police station in the afternoon of Janu-
1
This was the same door Officer Walters saw close the night before.
CROWE v. WRISLEY 1561
ary 21, including Stephanie’s parents, Stephen and Cheryl
Crowe; Stephanie’s grandmother, Judith Kennedy; Stepha-
nie’s 10-year-old sister, Shannon Crowe; and Stephanie’s 14-
year-old brother, Michael Crowe. The police also strip
searched Michael, Stephen, Cheryl, and Shannon and photo-
graphed them nude or partially nude.2
Before questioning Michael, the police advised him of his
Miranda rights. The police did not Mirandize other members
of the Crowe family. Michael was interviewed by Detective
Mark Wrisley, a defendant in this case. Michael told Detec-
tive Wrisley that he had gotten up at 4:30 a.m. that morning
with a headache, and that he had been running a fever the day
before. He described having turned on his television for light
and walked to the kitchen, where he took some Tylenol. He
also told Detective Wrisley that all other bedroom doors had
been shut when he was in the hallway. The defendant officers
testified that they considered Michael’s statement that the
bedroom doors were closed suspicious because by 4:30 a.m.
Stephanie was dead in the doorway of her bedroom with the
door open.
After police had questioned all members of the Crowe fam-
ily, they decided to place Michael and Shannon in protective
custody and transported them to the Polinksy Children’s Cen-
ter.3
The same day, the police located Richard Tuite and brought
him to the police station so that they could talk to him, finger-
print him, and take samples of fingernail scrapings, hair, and
clothing. At the police station, Detective Sweeney attempted
2
Michael was photographed in only his underwear. Stephen was photo-
graphed completely nude. Cheryl was photographed without her under-
wear. Shannon was photographed without a bra.
3
The Polinksy Children’s Center is a 24-hour facility for the temporary
emergency shelter of children who must be separated from their families
for their own safety, or when parents can not provide care.
1562 CROWE v. WRISLEY
to interview Tuite, but did not obtain much information.
Detective Sweeney did not run a background check on Tuite.
A background check would have shown that Tuite had an
extensive mental health history and had been arrested multiple
times on various charges. Tuite was detained for only a short
period of time and then released.
B. The Interrogations and Related Searches
1. Michael
Michael was interrogated on four occasions, starting with
the initial interview on January 21, 1998, at the Escondio
police station. On January 22, 1998, Michael was interviewed
a second time, by Detectives Wrisley and Han,4 at the
Polinksy Children’s Center, where he and Shannon had spent
the night after being taken into protective custody. During this
interview, Michael again stated that he had woken up around
4:30 a.m., had gone to the kitchen for some Tylenol, and had
thought the other doors in the hallway were closed. Michael
next described waking the next morning to his parents’
screams and then seeing Stephanie soaked in blood. When
asked how he felt when he saw her, Michael said he cried. He
described his sister as “the best person” and “kind” and
expressed anger at whoever had killed her.
That same day the Escondido Police Department contacted
the Oceanside Police Department to request the assistance of
an officer who knew how to operate a “computer voice stress
analyzer.” Oceanside responded by sending one of its detec-
tives, Christopher McDonough. When Detective McDonough
arrived at Escondido, he was provided with limited informa-
tion regarding Stephanie’s murder.
Michael was then interviewed later that day for a third
time, by Detectives McDonough and Claytor. This interview
4
Detective Han was not named as a defendant in this action.
CROWE v. WRISLEY 1563
lasted more than three hours and took place at the Escondido
Police Station. At the beginning of the interview, Michael
indicated that he felt sick. Michael then repeated the same
series of events for the evening of January 20 and the morning
of January 21 that he had recounted in the first two inter-
views. Detective Claytor then asked Michael if he would be
willing to take “a truth verification exam.” Michael responded
that he would be willing, but added:
I feel like I just . . . I spent all day away from my
family. I couldn’t see them. . . . I feel like I’m being
treated like I killed my sister, and I didn’t. It feels
horrible, like I’m being blamed for it. Everything I
own is gone . . . Everything I have is gone. Every-
thing. You won’t even let me see my parents. It’s
horrible.
Detective McDonough then entered the room and took over
the interview.
After Michael recounted the same series of events and
again expressed how stressful the past two days had been,
McDonough introduced the computer stress voice analyzer.
McDonough told Michael the stress voice analyzer “was con-
trolled by the government for a long time, okay, because it
was so accurate.”
Detective McDonough asked Michael a long series of “yes
or no” questions, including both control questions and ques-
tions specific to Stephanie’s death. McDonough then
reviewed the results with Michael and told him that the test
“showed that you had some deception on some of the ques-
tions.” McDonough asked him, “Is there something, though,
that maybe you’re blocking out . . . in your subconscious
mind that we need to be aware of?” McDonough pressured
Michael about whether there was something Michael needed
to confess, which Michael repeatedly denied.
1564 CROWE v. WRISLEY
At this point Detective Claytor took over the interview.
Claytor told Michael they found blood in his room, lifted fin-
gerprints off the blood stains, and that the police now knew
who killed Stephanie. Then he told Michael:
We can’t bring her back. I’ll tell you what we can
do. What we can do is the right thing by Stephanie’s
name and by yourself and by your parents. Okay.
Now, there is a couple of things that we need your
help with . . . that only you’re going to be able to
help us with. . . . What I’d like you to do right off
the bat, rather than put our team through any more,
can you tell me what you did with the knife?
Michael responded: “What—God. I don’t—no. I don’t know.
I didn’t do it. I swear to God.” Claytor continued to insist
Michael killed Stephanie and Michael continued to deny it.
Claytor also repeatedly told Michael that he wasn’t a bad per-
son and that they wanted to help him.
Claytor next introduced the idea that Michael killed Stepha-
nie but did not remember it. Michael started repeating over
and over that he didn’t remember doing anything. He also
asked Claytor if he was sure Michael had done it, to which
Claytor responded, “I’m sure about the evidence. Absolutely.”
At this point Claytor left and McDonough resumed the inter-
view. As Claytor left Michael sobbed, “God. God. Why?
Why? Why? Oh, God. God. Why? Why? I don’t deserve life.
I don’t want to live. I can’t believe this. Oh, God. God. Why?
Why? How could I have done this? I don’t even remember if
I did it.” When McDonough entered the room, Michael con-
tinued to state that he didn’t remember and asked “How can
I not remember doing something like that? That’s not possi-
ble.” The interview ended shortly thereafter.
Michael was interviewed for a fourth and final time the fol-
lowing day, January 23, 1998, by Detectives Wrisley and
Claytor. Prior to the interview, police contacted Dr. Lawrence
CROWE v. WRISLEY 1565
Blum, a clinical psychologist, and asked him to consult with
them during the interview. Dr. Blum was briefed by police,
watched portions of the videos of Michael’s previous inter-
views, and then observed the fourth interview from a monitor-
ing room. Dr. Blum commented on Michael’s demeanor,
personality, and responses to questions. The interview lasted
more than six hours.
During the interview Detectives Wrisley and Claytor took
turns interrogating Michael. They employed a variety of tac-
tics in an attempt to extract a confession from him. The first
approach they took—which they repeated throughout the
interview—was to tell Michael that they had evidence to
prove he had killed his sister. They told him again that they
found blood in his room, that they knew Michael had moved
Stephanie, that they had proof that no one had entered the
house and so Stephanie had to have been killed by a family
member, and that they found blood in the bathroom sink.
Claytor told Michael that they were going to play a game,
in which they would talk about the evidence and Michael
would explain it. They started with the blood Claytor said was
found in Michael’s room. When Michael said he didn’t know
how to explain it because he didn’t know how it got there,
Claytor told him that under the rules of the game Michael
wasn’t allowed to say “I don’t know.” As Claytor continued
to push Michael, Michael gave responses such as “How am
I supposed to tell you an answer that I don’t have? I can’t—
it’s not possible to tell you something I don’t know,” and
“You keep asking me questions I can’t answer. What do you
want me to do? Make something up? Lie to you?”
Later, Wrisley tried to get Michael to describe stabbing
Stephanie:
Q. What did you do?
A. I don’t know. All I know that I did is what you
told me. That’s all I know.
1566 CROWE v. WRISLEY
Q. What did we tell you that you did?
A. You told me that I killed her.
Q. How?
A. I don’t know. You asked me what I did with the
knife, so I assume it was a knife. That’s all I know.
Q. So what does the knife do? What’s the knife got
to do with it?
A. He asked me if I—what I did with the knife, but
I can’t—I don’t know. That’s all I know.
Q. Well, if there was a knife there and Stephanie was
dead, what role did the knife play?
A. I don’t know. They thought I killed her.
Q. How?
A. I don’t know.
Q. Oh, come on, Michael.
A. I don’t know. God.
Q. You played enough of these games. You know
how the knives work.
A. They cut her.
Q. Is that a question?
A. I don’t know. I can’t really tell you.
CROWE v. WRISLEY 1567
Q. You know how knives work, Michael. That’s a
little insulting to say that in front of Ralph and I who
investigate these cases all the time. Right?
A. I guess.
Q. You guess?
A. I don’t know for sure. I guess it would be.
Q. So how is a knife used to kill somebody?
A. Maybe stab them.
Q. Where?
A. I don’t know.
Q. Well, where would you think? If someone was
going to die from being stabbed, where would they
be stabbed?
A. In the head.
Q. Okay. Where else? Is that the only place?
A. Stomach. I don’t know. The chest.
Q. The chest, in the head?
A. Yeah.
Q. Would they die from being stabbed in the stom-
ach?
A. Eventually.
Q. Eventually?
1568 CROWE v. WRISLEY
A. Yes.
Q. Why?
A. They’d bleed to death.
Q. Would they?
A. I guess. I don’t know.
Q. Well, are you basing that on some kind of ratio-
nale or are you just taking a flier out of it?
A. I told you. I don’t remember what I did. I don’t
care if you think I’m just trying not to tell you. I
don’t care.
The detectives also followed up on the idea that Claytor
had introduced the day before: that Michael had killed his sis-
ter but did not remember. Throughout the entire 6-hour inter-
view Michael repeatedly asserted that he did not remember
killing his sister, to which the detectives insisted, “I’m help-
ing you remember,” and “I think you don’t want to remem-
ber.”
Earlier in the interview, Wrisley had also introduced the
idea that there were “two Michaels,” a “good Michael” and a
“bad Michael”:
Q. Once everybody understands what’s been going
on, I know that people will be able to forgive,
Michael.
A. But I didn’t do it.
Q. You know, the good part of Michael didn’t do it.
A. I didn’t.
CROWE v. WRISLEY 1569
Q. The Michael that helps her with her math.
A. I didn’t. I didn’t do this.
Q. And I’m suggesting to you, Michael, that the
Michael that has an opponent to defeat who has an
incredible assortment of things at his disposal could
be responsible for this.
A. No. It’s not true. I didn’t do this.
Q. Help me understand, Michael.
A. I didn’t do this.
When Claytor took over the interview, he continued with
the theme of “two Michaels” and told him that people would
understand, and that he wouldn’t be held “to the same stan-
dards” because he was only 14. Michael eventually started to
be influenced by the “two Michaels” theory, as is evident
from his response to the following question:
Q. — what’s your greatest fear right now? What’s
the worst that you can imagine right now?
A. I’m afraid that there is someone else inside of me.
I don’t know who they are. I don’t know what they
do. I don’t—if what you’re saying is true, then it’s
like there is another person in me then. I don’t
remember anything.
Finally, the detectives began to tell Michael that if he con-
fessed he would get help rather than go to jail. This was the
tactic that seems to ultimately have proved the most “effec-
tive.” Claytor told Michael:
Q. I’m not real sure how familiar you are with the
system, but kind of the way it works is if the system
1570 CROWE v. WRISLEY
has to prove it, yeah, it’s jail. If they don’t, then it’s
help. What that kinds of puts—or where that kind of
puts us is in a position of you have these two roads
to go. Which one are we going to go down?
A. I told you.
Q. What I’m really afraid of is that we’re going
down the make the system prove it. And I know
you’re smart enough to know that that can be done
quite easily.
Michael responded, “If I told you right now, I would be
lying. You’d find out eventually. The evidence would say it’s
a (unintelligible). My story would be wrong. Then what
would happen to me?”
But the detectives persisted and ultimately Wrisley
extracted the following from Michael:
Q. Tell us.
A. If I tell you a story, the evidence is going to be
a complete lie.
Q. Well, then, tell us the story.
A. Well, I’ll lie. I’ll have to make it up.
Q. Tell us the story, Michael.
A. You want me to tell you a little story?
Q. Tell us the story. What happened that night?
A. Okay. I’m going to warn you right now. It is a
complete lie.
CROWE v. WRISLEY 1571
Q. Tell us the story.
A. Okay. This is true. I am extremely jealous of my
sister.
Q. Okay.
A. She’s always had a lot of friends and good friends
and stuff like that. She was friends with people my
age, all the popular girls and stuff like that. That’s
true. Okay.
...
A. Okay. Here is the part where I’ll start lying. That
night I thought about her. I couldn’t take it anymore.
Okay. So I got a knife, went into her room and I
stabbed her. I left her on her bed, picked her up off
the bed, dropped her.
...
Q. How many times did you stab her?
A. It’s going to be a lie. Three times.
...
Q. Tell me what the truth is.
A. The only reason I’m trying to lie here is because
you presented me with two paths. I’d rather die than
go to jail.
The detectives latched onto Michael’s story as a confes-
sion. Throughout the remainder of the interview they tried to
fill some of the holes in his story—including where he got the
knife and what he did with it afterwards—but Michael was
1572 CROWE v. WRISLEY
unable to give them any further information. At the end of the
interview Michael said, “Like I said, the only way I even
know I did this because she’s dead and because the evidence
says that I did. You could find someone else did it—and I
pray to God someone else did. I think it’s too late for that. I
think I did it.”
2. Aaron
Police first contacted Aaron Houser at his home on January
22, 1998. Aaron answered the door and said his parents were
not home. The police then interviewed Aaron for 30 to 45
minutes regarding his friendship with Michael.
Aaron was interviewed a second time on January 27, 1998,
by Detective Wrisley at the Escondido police station. The
interview lasted approximately two hours. The interview pri-
marily focused on Aaron’s perception of Michael’s relation-
ship with his family. Wrisley asked Aaron whether Michael
ever talked about hurting his family and whether Aaron
thought Michael could have killed his sister. Aaron said he
didn’t think so. Aaron also told Wrisley that he had discov-
ered that day that a knife he owned was apparently missing.5
On February 11, 1998, police arrested Aaron at his school
and searched his home and locker. After arresting him, the
police strip searched him, and then interrogated him for
approximately 9.5 hours at the Escondido police station. He
was interrogated, primarily by Detective McDonough, but
also by defendants Sweeney, Wrisley, and Claytor.
In interrogating Aaron, the detectives used tactics similar to
those they used against Michael. McDonough began the inter-
rogation with the stress voice analyzer, describing it has he
had for Michael. Eventually he began to ask Aaron to “theo-
5
Aaron had a collection of knives. His mother had reported to the police
earlier that day that she noticed that one of his knives was missing.
CROWE v. WRISLEY 1573
retically” describe how he, Michael, and Joshua would each
respectively kill Stephanie, if they were going to do so.
McDonough suggested details to the story, through questions
regarding what clothing Aaron would wear and how he would
get rid of it, whether he would wear gloves, what time he
would pick, and how he would get into the house. Later,
McDonough told Aaron that Joshua and Michael had both
said Aaron helped them kill Stephanie. Aaron denied it. Then
McDonough told Aaron that the computer stress voice ana-
lyzer indicated that he was definitely involved. At this point
Aaron began to even more vehemently protest his innocence:
A. Let me put it this way: I don’t know anything. I
don’t know who did. I don’t know a single thing. I’m
doing my best to tell the truth.
Q. Aaron, calm down.
A. I’m telling the truth to the best of my ability.
Q. Calm down.
A. How can I calm down? I’m being accused of
murder?
Q. Relax, Aaron.
A. How?
Q. Relax.
A. How? Relax how?
...
Q. You need to help yourself in the situation here,
son.
1574 CROWE v. WRISLEY
A. What do I do?
Q. Tell the truth.
A. I did and you said I lied.
Q. Yes.
A. Okay.
Q. You lied. You have lied.
McDonough also told Aaron they had physical evidence
against him and implied that they would soon uncover more.
When Detective Claytor took over the interview he began
to tell Aaron how much easier things would be for him if he
confessed:
Q. Here’s the situation. You put us into a position by
saying “Don’t know what you’re talking about. This
is all bogus. Wasn’t me. Didn’t do it.” It’s what we
call “The other dude did it.”
A. Uh-huh.
Q. Now what that does is it puts you in kind of a bad
light, because at some point you may face a jury of
average everyday citizens right off the street out
here. . . .
A jury has a real difficult time convicting people
of crimes, especially of this nature. Why? Because
they don’t want to believe that a person would do
this. So what they do is deny away the evidence and
look at the evidence and they say, “Good grief. How
can he possibly sit here and say he didn’t do it,
CROWE v. WRISLEY 1575
because look what we have? We have this evidence,
this evidence . . .
They want to see an apology. They want to see
someone who is willing to accept what’s occurred.
...
Q. Now, two ways to go. You can force me to make
you live with your denial, which I’ll do. No problem
at all. Or you can put me in a position to where I can
write on a piece of paper, “We have a 15-year-old
man here who made a very serious mistake. He’s
willing to talk to me, though. He’s willing to fix it.”
Aaron maintained his innocence through the end of the 9.5
hour interrogation, at which point the detectives arrested him
and read his Miranda rights for the first time.
3. Joshua6
On January 22, 1998, police went to Joshua Treadway’s
house to interview him. Joshua answered the door and said
that his parents were not at home. After entering the house,
the police noticed a knife on the couch. Joshua said the knife
belonged to his brother, though his brother later said it
belonged to Joshua. The police asked Joshua questions about
Michael and his friendship with Michael. The interview lasted
approximately one hour.
On January 27, 1998, police searched the Treadway house
and recovered a knife, which Aaron later identified as the
knife he had reported missing. That day, Joshua was interro-
gated for approximately 13.5 hours. The interview began
around 7:00 p.m. at Joshua’s home, continued around 9:00
6
Although the Treadways were parties in the district court, they are not
parties to this appeal.
1576 CROWE v. WRISLEY
p.m. at the Escondido police station, and concluded around
8:30 a.m. Joshua was interrogated by Detectives Claytor,
Sweeney, and McDonough. Additionally, defendant Blum
was present and provided advice to the detectives. Joshua was
never Mirandized during the course of the interrogation.
The detectives employed similar techniques as they had
during the interrogations of Michael and Aaron. Detective
Claytor alternated between promising Joshua leniency and
threatening him with punishment. Detective McDonough took
over around 3:00 a.m. and used the computer stress voice ana-
lyzer, describing the device to Joshua in the same way as he
had to Michael and Aaron. Detective McDonough’s portion
of the interview continued for several hours and he repeatedly
denied Joshua’s requests for sleep. Ultimately Joshua broke
down and told McDonough that Aaron had given him the
knife used to kill Stephanie. At this point, McDonough told
him that the stress voice analyzer device indicated that he had
“passed.”
On January 31, 1998, Detectives Claytor and Anderson
convinced Joshua to call Aaron and accuse him of complicity
in Stephanie’s murder while they monitored the call. Aaron
denied any involvement.
On February 10, 1998, Joshua was interrogated a third time
for approximately 12 hours, with a two-hour break, at the
Escondido police station, by Detectives Claytor and McDo-
nough, with the consultation of Dr. Blum. The detectives
again used similar techniques and ultimately Joshua gave a
more in-depth confession, which, although detailed, was both
internally inconsistent and inconsistent with other information
the police had at their disposal. At the conclusion of the inter-
view, the police arrested Joshua and Mirandized him for the
first time.
CROWE v. WRISLEY 1577
C. Pre-Trial Proceedings
Statements obtained from the boys during their interroga-
tions were introduced during at least three pre-trial proceed-
ings. First, in April 1998, a “Dennis H. Hearing,”7 was held
and resulted in Aaron and Joshua spending several months in
jail while awaiting trial.8 The boys’ statements were intro-
duced. The statements were next introduced during the grand
jury proceedings in May 1998. On May 22, 1998, the grand
jury issued indictments against the three boys for murder and
conspiracy to commit a crime. Finally, in July 1998, a “707
Hearing”9 was held to determine if the boys would be tried as
juveniles or adults. The boys’ statements were again intro-
duced.
On December 17, 1998, the state court held a suppression
hearing in which the court considered, amongst other motions
in limine, the defense’s motions to suppress the three boys’
statements. The court suppressed the majority of Michael’s
third interrogation and all of his fourth interrogation on the
ground of coercion. The court found that starting early in the
third interrogation, “there was commenced a coercive scheme,
whether intentional or unintentional; it culminated in the
adoption of what we have come to refer to as the ‘good
Michael, bad Michael’ approach. Where, in essence, the
defendant, Mr. Crowe, was told if he confessed, if he pro-
vided information, he would receive treatment.” The court
suppressed all of Aaron’s statements on the ground that Aaron
7
Under California law, when a minor is taken into custody by a police
officer, he must be released within 48 hours from the time of his apprehen-
sion, unless within that time a petition is filed in the juvenile court or a
criminal complaint is filed with a court of competent jurisdiction explain-
ing why the minor should be declared a ward of the court. See Cal. Welf.
& Inst. Code § 631. Such a hearing is called a “Dennis H. Hearing.” See
In re Dennis H., 19 Cal. App. 3d 350, 354 (Cal. App. 1971).
8
The record is unclear as to when Michael was incarcerated.
9
A “707 Hearing” is held to determine whether a minor should be tried
in juvenile or adult court. See Cal. Welf. & Inst. Code § 707.
1578 CROWE v. WRISLEY
had not been Mirandized. Finally, the court suppressed Josh-
ua’s second interrogation on the ground of coercion and the
pre-arrest portion of his third interrogation on the ground that
he had not been Mirandized. The court then set a trial date in
January 1999.
D. Dismissals of Indictments and Prosecution of Tuite
On October 27, 1998, pieces of Tuite’s clothing, which had
been collected when police first interviewed Tuite on January
21, 1998, were sent to a laboratory for forensic testing, at the
joint request of Joshua Treadway’s defense attorney and the
prosecution. The clothing included the long-sleeved red shirt
Tuite had been wearing when police brought him in for ques-
tioning on January 21, 1998.10 On January 14, 1999, the foren-
sic laboratory notified the prosecution that DNA results
showed that Tuite’s red shirt contained spots of Stephanie
Crowe’s blood. On February 25, 1999, the prosecution filed
a Motion to Dismiss the indictments against the boys.
Tuite was eventually charged and tried for Stephanie
Crowe’s murder. On May 26, 2004, a jury convicted Tuite of
voluntary manslaughter.
E. § 1983 Action
After the charges against them were dismissed, the boys
and their families11 filed three separate complaints in state
court alleging violations of 42 U.S.C. § 1983 and various
state-law torts. The defendants removed the complaints to
federal court, and the district court consolidated the actions
and ordered the plaintiffs to file a joint complaint. The plain-
10
Tuite’s clothing had apparently been examined previously in April of
1998, but visual inspections did not detect any blood on Tuite’s red shirt.
11
Michael, Stephen, Cheryl, Judith Ann, and Shannon Crowe; Aaron,
Margaret Susan, and Gregg Houser; and Joshua David, Zachary, Michael
Lee, and Tammy Treadway.
CROWE v. WRISLEY 1579
tiffs filed their Joint First Amended Complaint on April 24,
2000. The following defendants are parties to this appeal: the
City of Escondido and Escondido Police Detectives Mark
WRISLEY, Barry Sweeney, and Ralph CLAYTOR (collec-
tively “the Escondido defendants”); the City of Oceanside and
Oceanside Police Detective Chris McDonough (collectively
“the Oceanside defendants”); Dr. Lawrence Blum; and Assis-
tant District Attorney Summer Stephan.
The Escondido defendants filed a motion to dismiss, which
was granted in part on July 26, 2000. Defendants then filed
multiple motions for summary judgment on qualified immu-
nity grounds. The district court granted portions of these
motions on February 17, 2004. Crowe v. County of San
Diego, 303 F. Supp. 2d 1050 (S.D. Cal. 2004) (“Crowe I“).
The Escondido defendants subsequently filed motions for
summary judgment, again on qualified immunity grounds, as
to the remainder of the claims pending against them. The dis-
trict court granted those motions, in part, on February 28,
2005. Crowe v. County of San Diego, 359 F. Supp. 2d 994
(S.D. Cal. 2005) (“Crowe II”).
The Crowes and the Housers appeal the district court’s
grant of summary judgment, on qualified immunity grounds,
as to (1) Michael and Aaron’s Fifth Amendment claims, (2)
Michael and Aaron’s Fourteenth Amendment substantive due
process claims, (3) Michael and Aaron’s various Fourth
Amendment claims, (4) the Crowes’ and Housers’ Fourteenth
Amendment deprivation of familial companionship claims,
(5) Michael and Aaron’s defamation claims, and (6) the
Crowes’ and Housers’ claims of municipal liability against
the City of Escondido and the City of Oceanside.
The Escondido defendants cross-appeal the district court’s
denial of summary judgment, on qualified immunity grounds,
as to (1) Fourth Amendment claims stemming from the nude
photographing of Cheryl, Stephen and Shannon Crowe, (2)
Fourth Amendment claims stemming from the taking of blood
1580 CROWE v. WRISLEY
samples from Cheryl and Stephen Crowe, (3) Fourth Amend-
ment claims stemming from the detention of Cheryl and Ste-
phen Crowe, and (4) the Crowes’ Fourteenth Amendment
deprivation of familial companionship claim based on the
placement of Michael and Shannon Crowe in protective cus-
tody.
Defendants asserted qualified immunity in each of their
summary judgment motions. To determine whether a govern-
ment employee is entitled to qualified immunity, we use a
two-part test. Saucier v. Katz, 533 U.S. 194, 201 (2001). First,
we must determine whether, viewed in the light most favor-
able to the plaintiff, the government employees violated the
plaintiff’s constitutional rights. Id. Then, if we determine that
a constitutional violation has occurred, the court must deter-
mine whether the rights were clearly established at the time
of the violation. Id. For each claim on which the district court
granted summary judgment, the district court held that there
was no constitutional violation, but that even if there was a
violation, it was not clearly established.
We review de novo a district court’s decision to grant or
deny summary judgment on the ground of qualified immu-
nity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004).
We must view the evidence “in the light most favorable” to
the plaintiffs to determine if there was no genuine issue as to
any material fact and whether the defendants were entitled to
judgment as a matter of law. Mueller v. Auker, 576 F.3d 979,
991 (9th Cir. 2009). In doing so, all justifiable inferences are
to be drawn in favor of the plaintiffs. Id.
II. Fifth Amendment Claims
[1] Michael and Aaron allege that defendants Blum, Wris-
ley, Sweeney, Claytor, McDonough, and Anderson violated
their Fifth Amendment privilege against compelled self-
incrimination. The district court granted summary judgment
in favor of defendants, relying primarily on its interpretation
CROWE v. WRISLEY 1581
of Chavez v. Martinez, 538 U.S. 760 (2003). Crowe I, 303 F.
Supp. 2d at 1091-93; Crowe II, 359 F. Supp. 2d at 1030. Prior
to Chavez, the rule in our Circuit was that a § 1983 cause of
action for a violation of the Fifth Amendment’s Self-
Incrimination Clause arose as soon as police employed coer-
cive means to compel a statement. See Cooper v. Dupnik, 963
F.2d 1220, 1242 (9th Cir. 1992). In Chavez, the Supreme
Court held that mere coercion does not create a cause of
action under § 1983 for a violation of the Self-Incrimination
Clause, absent use of the compelled statement in a criminal
case.
As we have recently held, however, Chavez does not pre-
clude § 1983 claims for Fifth Amendment violations when the
coerced confession is used in certain pre-trial proceedings.
See Stoot v. City of Everett, No. 07-35425, 2009 WL
2973229, at *13 (9th Cir. Sept. 18, 2009). Because statements
obtained during Michael’s and Aaron’s interrogations were
used in pre-trial proceedings of the type discussed in Stoot,
namely the “Dennis H.” hearing, the grand jury proceedings,
and the 707 hearing, we must reverse the district court’s grant
of summary judgment.
A
We begin with Chavez, which provides the underpinnings
of our analysis. Chavez involved a § 1983 case arising out of
the coerced confession of Oliverio Martinez. Two police offi-
cers became involved in an altercation with Martinez and one
of the officers ultimately shot Martinez several times, causing
severe injuries including blindness and paralysis. Chavez, 538
U.S. at 764. The officers then arrested Martinez and sent him
to a hospital with paramedics. Id. At the hospital, another offi-
cer, Chavez, questioned Martinez while he was receiving
medical treatment. Id. During the questioning, Martinez was
in severe pain and stated several times that he was dying. Id.
at 784-86 (Stevens, J., concurring in part and dissenting in
1582 CROWE v. WRISLEY
part). Martinez was never Mirandized and was never ulti-
mately charged with a crime. Id. at 764.
Martinez filed suit under § 1983, alleging that the question-
ing violated his Fifth Amendment right to be free from com-
pelled self-incrimination, as well as his Fourteenth
Amendment substantive due process rights. Id. at 764-65. The
district court granted summary judgment in favor of Martinez
as to Chavez’s qualified immunity defense, and we affirmed.
Martinez v. Oxnard, 270 F.3d 852 (9th Cir. 2001). The
Supreme Court reversed. Both Justices Thomas and Souter
authored opinions supporting the judgment as to the Fifth
Amendment question; neither garnered a majority of the
Court.
Announcing the judgment of the Court, Justice Thomas
noted that the text of the Fifth Amendment protects a person
from being “compelled in any criminal case to be a witness
against himself.” Chavez, 538 U.S. at 766 (quoting U.S.
Const. amend. V). Justice Thomas opined that “criminal case”
does not encompass the entire criminal investigatory process,
and “at the very least requires the initiation of legal proceed-
ings.” Id. However, the opinion stopped short of defining
“criminal case.” Id. at 766-67 (“We need not decide today the
precise moment when a ‘criminal case’ commences; it is
enough to say that police questioning does not constitute a
‘case.’ ”).
The opinion concluded that Martinez had no cause of
action under the Fifth Amendment, because “it is not until
[the compelled statements’] use in a criminal case that a viola-
tion of the Self-Incrimination Clause occurs.” Id. at 767. Mar-
tinez’s statements were not used in any criminal proceeding.
Justice Souter’s opinion discussed the scope of the Fifth
Amendment’s Self-Incrimination Clause and concluded that
Martinez did not state a § 1983 cause of action for a Fifth
Amendment violation. However, Justice Souter presented a
CROWE v. WRISLEY 1583
different analysis as to why Martinez did not have a cause of
action. Justice Souter opined that the mere fact that Marti-
nez’s statements were not used in a “criminal case” is not
enough to doom his claim. Id. at 777. While the “core of Fifth
Amendment protection” concerns the use of a compelled
statement in a criminal case, the Fifth Amendment also pro-
tects in situations where “the core guarantee, or the judicial
capacity to protect it, would be placed at some risk in the
absence of such complementary protection.” Id. at 777-78.
This is why, Justice Souter explained, the Fifth Amendment
also provides protection in “non-core” situations such as com-
pelled testimony in a civil case. Id. (citing McCarthy v. Arnd-
stein, 266 U.S. 34, 40 (1924)).12
[2] Recently, we have clarified “the precise moment when
a ‘criminal case’ commences.” In Stoot, we held that “[a]
coerced statement has been ‘used’ in a criminal case when it
has been relied upon to file formal charges against the declar-
ant, to determine judicially that the prosecution may proceed,
and to determine pretrial custody status.” Stoot, 2009 WL
2973229, at *13.
12
Part II of Justice Souter’s opinion, which was the only part of any of
the six opinions joined by a majority of the Court, held that Martinez
might be able to pursue a claim for violation of his substantive due process
rights and remanded on that issue.
CROWE v. WRISLEY 1585
Volume 2 of 2
CROWE v. WRISLEY 1589
B
With that background, we consider the procedural posture
in the instant case. In granting summary judgment for defen-
dants, the district court concluded that Michael and Aaron’s
Fifth Amendment claims failed for two reasons. First, the dis-
trict court interpreted Chavez to require that a compelled
statement be introduced in a criminal trial in order to create
a Fifth Amendment cause of action. Crowe I, 303 F. Supp. 2d
at 1091. Second, the district court concluded that a Fifth
Amendment cause of action can never arise against a police
officer, because the harm is the introduction of the statement
at trial and the police officer will never be the proximate
cause of that harm. Id. at 1091-92. The district court did not
have the benefit of Stoot when issuing its opinion. Neverthe-
less, Stoot makes clear that the district court erred in both con-
clusions. We thus reverse the grant of summary judgment as
to Michael and Aaron’s Fifth Amendment claims.13
[3] In contrast to the facts in Chavez, the prosecution of
Michael and Aaron did not cease with the boys’ interroga-
tions. Rather, the boys were indicted and the case against
them continued for a year, up and until the eve of trial. During
this time, statements obtained during the boys’ interrogations
were used in several pre-trial proceedings, including a “Den-
nis H. Hearing,” the grand jury proceedings, and a “707 Hear-
ing.” Following Stoot, we hold that the use of Michael’s and
Aaron’s statements in the pre-trial proceedings gives rise to a
Fifth Amendment cause of action.
13
See infra Part VIII.B for discussion of the claims against Blum.
1590 CROWE v. WRISLEY
[4] All three pre-trial proceedings in which Michael and
Aaron’s statements were used gave rise to a Fifth Amendment
cause of action. The “707 hearing” was held to determine
whether the boys would be incarcerated in Juvenile Detention
prior to trial. Pre-trial incarceration is a deprivation of liberty
and an important part of any “criminal case.”
[5] A grand jury proceeding is at the heart of a “criminal
case.” Without an indictment, there is no trial. In considering
a similar question, albeit in a different context, the Supreme
Court held that the Fifth Amendment applies in the grand jury
context even if the evidence is not used at trial. United States
v. Hubbell, 530 U.S. 27, 41 (2000). In Hubbell, the Court con-
sidered whether the use of documents, produced by a defen-
dant pursuant to a subpoena, to obtain an indictment against
that defendant violated his Fifth Amendment right to be free
from self-incrimination. The Court held that it did, id. at 41,
and held that the documents need not be introduced at trial to
complete the Fifth Amendment violation, id. at 43. The gov-
ernment had argued that it would not need to introduce the
documents used to indict in the actual trial and that the defen-
dant’s Fifth Amendment rights would therefore never be vio-
lated. The Court firmly rejected that argument: “In sum, we
have no doubt that the constitutional privilege against self-
incrimination protects the target of a grand jury investigation
from being compelled to answer questions designed to elicit
information about the existence of sources of potentially
incriminating evidence.” Id. at 43. Applying Hubbell in this
context leads to a similar conclusion.
[6] Finally, a “Dennis H. hearing” is yet another important
part of a “criminal case.” The outcome of such a hearing is
not merely a choice of venue, but a determination of maxi-
mum punishment. As the California Supreme Court has noted,
“the certification of a juvenile offender to an adult court has
been accurately characterized as ‘the worst punishment the
juvenile system is empowered to inflict.’ ” Ramona R. v.
Superior Court, 37 Cal. 3d 802, 810 (1985) (quoting Note,
CROWE v. WRISLEY 1591
Separating the Criminal from the Delinquent: Due Process in
Certification Procedure, 40 S. Cal. L. Rev. 158, 162 (1967)).14
Thus, all of the pre-trial proceedings in which plaintiffs’ Fifth
Amendment rights were violated give rise to § 1983 claims.
The district court also granted summary judgment on the
ground that Michael and Aaron’s Fifth Amendment claims
failed because the police officer defendants were not the prox-
imate cause of the harm. Crowe I, 303 F. Supp. 2d at 1091-92.
The court reasoned that harm only arises when a coerced
statement is admitted in court, whether during a trial or pre-
trial proceeding. Thus, “it cannot be said that a police officer
is the proximate cause of such a violation . . . [because] it is
the prosecutor, not the police officer, who decides to intro-
duce and actually introduces the statement into evidence.
Moreover, . . . it is the trial judge who ultimately determines
whether the statement will be admitted.” Id. at 1091. This
conclusion is foreclosed by our decision in Stoot. See 2009
WL 2973229, at *13-*14.
The district court’s reasoning would effectively bar any
§ 1983 action for a violation of the Self-Incrimination Clause.
A police officer will never “actually introduce[ ] the statement
into evidence” and prosecutors and judges have absolute
immunity for any act performed in their prosecutorial and
judicial capacities. See Stump v. Sparkman, 435 U.S. 349
(1978) (judicial immunity); Imbler v. Pachtman, 424 U.S. 409
(1976) (prosecutorial immunity). Such a rule is in direct con-
flict with “[t]he purpose of § 1983 [which] is to deter state
actors from using the badge of their authority to deprive indi-
viduals of their federally guaranteed rights.” McDade v. West,
223 F.3d 1135, 1139 (9th Cir. 2000). If a plaintiff could never
bring a § 1983 action for a violation of the Self-Incrimination
Clause, the statute would be robbed of its purpose.
14
Michael additionally argues that the use of his statements at Tuite’s
trial creates a cause of action. This argument has no merit because
Michael’s liberty was neither infringed nor threatened by the use of his
statements in Tuite’s trial.
1592 CROWE v. WRISLEY
Further, in the context of § 1983 claims, we have explained
that “[t]he requisite causal connection can be established not
only by some kind of direct personal participation in the
deprivation, but also by setting in motion a series of acts by
others which the actor knows or reasonably should know
would cause others to inflict the constitutional injury.” John-
son v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). When a
police officer questions a suspect, he knows that any state-
ment the suspect gives may be used to prosecute that suspect.
A fortiori, he knows that an obtained confession will almost
certainly be used to prosecute. Thus, while the officer may not
actually introduce the statement into court, coercing the con-
fession “set[s] in motion a series of acts by others which the
[officer] knows or reasonably should know would cause” the
statement to be introduced. See Stoot, 2009 WL 2973229, at
*14 (“Like the other circuits to address this question, we con-
clude that, absent unusual circumstances, a police officer elic-
iting incriminating statements from a criminal suspect ‘could
reasonably have foreseen that a coerced confession would be
used against [the suspect] and would lead to [the suspect’s]
detention.’ ” (quoting Higazy v. Templeton, 505 F.3d 161, 177
(2d Cir. 2007) (alterations in original))). The defendants were
unquestionably a proximate cause of the violations of Michael
and Aaron’s Fifth Amendment rights.
[7] In summary, we hold that a Fifth Amendment cause of
action against the relevant defendants arose when Michael
and Aaron’s coerced statements were introduced against them
during pre-trial proceedings.
[8] Further, the defendants are not entitled to qualified
immunity. In 1998, when defendants interrogated Michael
and Aaron, the clearly established rule in this Circuit was that
a § 1983 cause of action for a violation of the Fifth Amend-
ment’s Self-Incrimination Clause arose as soon as police
employed coercive means to compel a statement. See Cooper,
963 F.2d at 1242; see also Stoot, 2009 WL 2973229, at *14-
15) (denying qualified immunity for a similar claim). As such,
CROWE v. WRISLEY 1593
defendants cannot claim the protection of qualified immunity.
See Saucier, 533 U.S. at 201.
III. Substantive Due Process Claims
[9] The Due Process Clause of the Fourteenth Amendment
protects against any government conduct that “shocks the
conscience.” Rochin v. California, 342 U.S. 165, 172 (1952).
Michael and Aaron allege that defendants Blum, Wrisley,
Sweeney, Claytor, McDonough, and Anderson violated their
Fourteenth Amendment substantive due process rights by
using interrogation techniques so coercive as to “shock the
conscience.” The district court granted summary judgment for
defendants, concluding that the defendants’ actions did not
“shock the conscience.” Crowe I, 303 F. Supp. 2d at 1096;
Crowe II, 359 F. Supp. 2d at 1034.
We have previously explained that police conduct need not
include physical violence to violate substantive due process.
See, e.g., Cooper, 963 F.2d at 1249-50, abrogated on other
grounds by Chavez, 538 U.S. at (holding that police interroga-
tion plan to ignore suspect’s requests for an attorney and
relentlessly interrogate him violated the suspect’s substantive
due process rights); Wood v. Ostrander, 879 F.2d 583, 589
(9th Cir. 1989) (“While brutality by police or prison guards
is one paradigmatic example of a substantive due process vio-
lation, it does not exhaust the possibilities.”). It has also long
been established that the constitutionality of interrogation
techniques is judged by a higher standard when police interro-
gate a minor. See In re Gault, 387 U.S. 1, 55 (1967) (In an
interrogation of a minor, “the greatest care must be taken to
assure that the admission was voluntary, in the sense not only
that it was not coerced or suggested, but also that it was not
the product of ignorance of rights or of adolescent fantasy,
fright or despair.”).
The Crowes and the Housers presented testimony from sev-
eral expert and lay witnesses in support of their argument that
1594 CROWE v. WRISLEY
the interrogations of Michael and Aaron violated the boys’
substantive due process rights. Dr. Richard Leo, an expert in
coerced confessions, described Michael’s interrogation as
“the most psychologically brutal interrogation and tortured
confession that I have ever observed.” Dr. Calvin Colarusso,
Director of Child Psychiatry Residence Training Program at
the University of California, San Diego, conducted a psychiat-
ric evaluation of Michael and characterized his interrogation
as “the most extreme form of emotional child abuse that I
have ever observed in my nearly forty years of observing and
working with children and adolescents.” Robert Puglia, for-
mer Chief Deputy District Attorney for Sacramento County,
testified in a sworn declaration that Michael’s statements were
the product of a “coercive police scheme.” And finally, a juror
in Tuite’s criminal trial, who viewed the videotapes of the
boys’ interrogations, described the interrogations as “brutal
and inhumane” and “psychological torture.”
[10] One need only read the transcripts of the boys’ interro-
gations, or watch the videotapes, to understand how thor-
oughly the defendants’ conduct in this case “shocks the
conscience.” Michael and Aaron—14 and 15 years old, respec-
tively15—were isolated and subjected to hours and hours of
interrogation during which they were cajoled, threatened, lied
to, and relentlessly pressured by teams of police officers.
“Psychological torture” is not an inapt description. In Cooper,
we held that police violated an adult suspect’s substantive due
process rights when they “ignored Cooper’s repeated requests
to speak with an attorney, deliberately infringed on his Con-
stitutional right to remain silent, and relentlessly interrogated
him in an attempt to extract a confession.” 963 F.2d at 1223.
The interrogations of Michael and Aaron are no less shocking.
Indeed, they are more so given that the boys’ interrogations
were significantly longer than Coopers’s,16 the boys were
15
Aaron was interrogated on his fifteenth birthday.
16
Cooper was interrogated once for four hours. Cooper, 963 F.2d at
1237. Michael was interrogated four times and Aaron was interrogated
twice, each for over 10 hours.
CROWE v. WRISLEY 1595
minors, and Michael was in shock over his sister’s brutal mur-
der. The interrogations violated Michael’s and Aaron’s Four-
teenth Amendment rights to substantive due process.
[11] Further, defendants are not entitled to qualified immu-
nity because it was clearly established, at the time of the boys’
interrogations, that the interrogation techniques defendants
chose to use “shock the conscience.” Defendants had the ben-
efit of this Court’s holding in Cooper, as well as Supreme
Court case law directing that the interrogation of a minor be
conducted with “the greatest care,” In re Gault, 387 U.S. at
55. Just as in Cooper, here, “[q]ualified immunity is mani-
festly inapplicable.” 963 F.2d at 1251.
IV. Probable Cause Claims
A. Michael’s Arrest
Michael was arrested on January 23, 1998, after his fourth
and final interrogation. Crowe I, 303 F. Supp. 2d at 1059.
Michael alleges that, considering all information known to the
officers at the time of his arrest, there was no probable cause
to arrest him. The district court granted summary judgment in
favor of defendants. Crowe II, 359 F. Supp. 2d at 1007. We
affirm the district court on the alternate grounds that the
defendants were entitled to qualified immunity as to this
claim.
[12] “Probable cause for a warrantless arrest arises when
the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe that the sus-
pect has committed . . . an offense.” Barry v. Fowler, 902
F.2d 770, 773 (9th Cir. 1990) (internal quotation marks omit-
ted). In determining whether there was probable cause to
arrest, we look to “the totality of circumstances known to the
arresting officers, [to determine if] a prudent person would
have concluded there was a fair probability that [the defen-
dant] had committed a crime.” United States v. Smith, 790
1596 CROWE v. WRISLEY
F.2d 789, 792 (9th Cir. 1986). While evidence supporting
probable cause need not be admissible in court, it must be “le-
gally sufficient and reliable.” Franklin v. Fox, 312 F.3d 423,
438 (9th Cir. 2002). As we have discussed, see supra Parts III
and IV, the interrogations of Michael violated his Fifth and
Fourteenth Amendment rights. As the district court properly
concluded, such coerced confessions are legally insufficient
and unreliable and thus cannot factor into the probable cause
analysis.
Excluding Michael’s coerced statements, at the time of
Michael’s arrest, police had the following information which
could support a theory that Michael was responsible: (1)
Michael stated he thought Stephanie’s door was closed at a
time—4:30 a.m.—when the officers could reasonably believe
her body was lying in her doorway blocking the door;17 (2) no
one else in the house heard anyone enter or exit the house dur-
ing the night;18 and (3) the family dog did not bark during the
night. Crowe II, 359 F. Supp. 2d at 1007-17. On the other
hand, the police also had the following information which
suggests that someone other than Michael could have been
responsible: (1) eye witness accounts had placed Richard
Tuite in the Crowe’s neighborhood and described him as loud,
drunk or high, agitated, and knocking on doors looking for
“Tracy”; (2) just before 10:00 p.m. an officer investigating the
complaints about Tuite saw a door to the Crowe house shut
but did not see who shut it; (3) the Crowe family reported that
17
There is some dispute among the parties regarding whether Stepha-
nie’s body was actually in the doorway—preventing the door from being
closed—at 4:30 a.m. However, given that her body was in that position
when paramedics and police arrived a couple hours later and no one seems
to have clearly stated at the time that someone moved the body, a reason-
able police officer certainly could have believed that Stephanie’s body was
in that position from the time she died until the time she was discovered
the next morning.
18
There was also no sign of forced entry, but this fact is largely negated
by the fact that at least some doors and windows to the house were
unlocked.
CROWE v. WRISLEY 1597
everyone was in bed before 10:00 p.m.; (4) an outside door
to the master bedroom and the window in Stephanie’s room
were not locked during the night. Although “police may rely
on the totality of facts available to them in establishing proba-
ble cause, they also may not disregard facts tending to dissi-
pate probable cause.” United States v. Ortiz-Hernandez, 427
F.3d 567, 574 (9th Cir. 2005).
We decline to determine whether the police had sufficient
probable cause to arrest Michael. Instead, we exercise our
“sound discretion” and address the second prong of the quali-
fied immunity analysis: whether the unconstitutionality of the
officers’ conduct was clearly established. See Pearson, 129 S.
Ct. at 818. We conclude that it was not.
[13] The Supreme Court has held that “it is inevitable that
law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present.” Ander-
son v. Creighton, 483 U.S. 635, 641 (1987). When that hap-
pens, the officials “should not be held personally liable.” Id.
We have held that officers are immune from suit “when they
reasonably believe that probable cause existed, even though it
is subsequently concluded that it did not, because they ‘cannot
be expected to predict what federal judges frequently have
considerable difficulty in deciding and about which they fre-
quently differ among themselves.’ ” Smiddy v. Varney, 665
F.2d 261, 299 (9th Cir. 1981) (quoting Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 456 F.2d
1339, 1349 (2d Cir. 1972) (Lumbard, J., concurring)), over-
ruled on different grounds by Beck v. City of Upland, 527
F.3d 853, 865 (9th Cir. 2008).
[14] Defendants are entitled to qualified immunity because
they could have reasonably believed that probable cause
existed. Michael had stated that when he woke up in the mid-
dle of the night he saw nothing unusual, even though Stepha-
nie’s room was near Michael’s room and the detectives
believed that by that time, Stephanie was dead in her door-
1598 CROWE v. WRISLEY
way. In addition, there were no signs of forced entry, suggest-
ing that the murderer might have had access to the inside of
the house. Finally, the information that the officers had
regarding Tuite was not sufficiently strong to compel a rea-
sonable officer to believe that Michael was not the most likely
suspect.
In sum, although we make no judgment on whether “the
facts and circumstances within the officer’s knowledge [were]
sufficient to warrant a prudent person to believe that” Michael
committed the murder, Barry, 902 F.2d at 773, we hold that
the officers are entitled to qualified immunity on this claim
because a reasonable officer could have believed that proba-
ble cause existed.
B. Aaron’s Arrest
[15] Aaron similarly challenges the sufficiency of the prob-
able cause justifying his arrest on February 11, 1998. The dis-
trict court granted summary judgment in favor of defendants.
Crowe I, 303 F. Supp. 2d at 1085. Because police had addi-
tional information suggesting Aaron’s involvement by the
time of his arrest, we affirm the district court’s conclusion
that there was sufficient probable cause.
In addition to the information available at the time of
Michael’s arrest, the police also had the benefit of the follow-
ing information implicating Aaron when they arrested him:
(1) Joshua’s statement that Aaron had given him a knife and
told him that the knife was the knife used to kill Stephanie
and that Aaron had participated in the killing with Michael19
(2) the knife used to kill Stephanie fit the description of
Aaron’s knife; (3) Aaron’s knife was found under Joshua’s
bed. Id. at 1084-85. This information—even in light of the
19
The district court concluded that this part of Joshua’s February 10,
1998 statement was uncoerced. Id. at 1083. Michael and Aaron have not
challenged this finding.
CROWE v. WRISLEY 1599
information regarding Tuite—is sufficient to cause a prudent
person to conclude that there was a reasonable possibility that
Aaron was involved in Stephanie’s death. The district court
properly granted summary judgment in favor of defendants.
C. Searches of Aaron’s Home
Police twice obtained search warrants and searched the
Houser residence, on January 27, 1998 and February 11,
1998. Id. at 1079, 1082. The district court held that both
search warrants were supported by probable cause. Id. at
1079-80, 1082-84. Aaron argues the district court erred
because police deliberately made material misrepresentations
in obtaining the search warrants.
Probable cause exists when “given all the circumstances set
forth in the affidavit . . . there is a fair probability that contra-
band or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983). In
reviewing a search warrant on probable cause grounds, this
Court, like the district court, is “limited to the information and
circumstances contained within the four corners of the under-
lying affidavit.” United States v. Stanert, 762 F.2d 775, 778,
amended on other grounds, 769 F.2d 1410 (9th Cir. 1985).
The evidence in the affidavit need not necessarily be admissi-
ble, but must be “legally sufficient and reliable.” Franklin,
312 F.3d at 438.
[16] A misrepresentation in the affidavit constitutes a viola-
tion of the Fourth Amendment if the misrepresentation is
material. See Franks v. Delaware, 438 U.S. 154, 171-72
(1978). Misrepresentations can be affirmative or based on
omission. Affirmative misrepresentations are material only if
there is no probable cause absent consideration of the misrep-
resented facts. Id. A misrepresentation based on an omission
is material only where the omitted facts “cast doubt on the
existence of probable cause.” United States v. Garza, 980
F.2d 546, 551 (9th Cir. 1992) (internal quotation marks omit-
1600 CROWE v. WRISLEY
ted). If a plaintiff is able to demonstrate that a warrant was
issued as the result of a material misrepresentation, a police
officer defendant may still be entitled to summary judgment
on qualified immunity grounds, unless the plaintiff can also
demonstrate that the police officer deliberately falsified infor-
mation presented to the magistrate or recklessly disregarded
the truth. Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995).
Thus, to determine whether the two warrants were sup-
ported by probable cause, we must exclude any misrepresen-
tation contained in supporting affidavits, add any information
which was improperly omitted from the affidavits, and then
determine whether the remaining information is sufficient to
create probable cause. We conclude that only the second war-
rant was supported by sufficient probable cause, but also that
the first warrant does not conclusively demonstrate a deliber-
ate falsification of information or reckless disregard for the
truth such that defendants are entitled to qualified immunity.
We therefore, affirm the district court’s grant of summary
judgment as to both warrants.
1. January 27 Search
The affidavit in support of the January 27 warrant con-
tained the following information, as summarized by the dis-
trict court, none of which can fairly be characterized as a
misrepresentation:
Defendant Claytor told Detective Han that multiple
stab wounds were found on Stephanie’s body and
those wounds were consistent with a 5-6 inch knife
blade. Through interviews, the investigation revealed
that Michael Crowe and Aaron Houser are friends.
On 1-22-98, detectives Lanigan and Naranjo inter-
viewed Aaron Houser at his residence. Aaron told
Detective Naranjo and Lanigan that he and Michael
had been friends for over a year and had mutual
interest in computer games and in medieval fantasy
CROWE v. WRISLEY 1601
role play games as well as in weapons, including
swords, knives, dirks and daggers. Aaron told the
detectives that Michael knew that he had a medieval
sword and knife collection but that he had never lent
Michael any of his collection. On 1-27-98, Detective
J. Lanigan received a telephone call from Margaret
Houser, Aaron’s mother. Margaret Houser told
Detective Lanigan that Aaron had checked his medi-
eval sword and knife collection and that one of the
knives was missing. The missing knife was
described as being stainless steel in color, with black
plastic inserts on the handle and a 4-5 inch blade that
came to a point and was sharpened. The knife was
further described as having a hand stop and has
indentations to facilitate a firmer grip.
Crowe I, 303 F. Supp. 2d at 1078. This information is suffi-
cient to establish probable cause to search the Houser resi-
dence. However, we must also determine whether police
made any material omissions in the affidavit which would
cast doubt on the existence of probable cause.
[17] Aaron argues that police deliberately omitted material
information regarding Tuite and the fact of unlocked doors
and windows in the Crowe house. It is true that there was
information known to the police at the time of the affidavit
that now appears material, particularly the actions of Tuite,
that the police did not include in the affidavit. “[W]here omis-
sions are involved materiality may not have been clear at the
time the officer decided what to include in, and what to
exclude from, the affidavit. In such cases, when it is not plain
that a neutral magistrate would not have issued the warrant,
the shield of qualified immunity should not be lost, because
a reasonably well-trained officer would not have known that
the misstatement or omission would have any effect on issu-
ing the warrant.” Lombardi v. City of El Cajon, 117 F.3d
1117, 1126 (9th Cir. 1997).
1602 CROWE v. WRISLEY
California Municipal Judge Ramirez, who signed the war-
rant, stated later that had he known “that the sliding glass door
in the bedroom was unlocked and partially open, and that a
transient had been knocking on doors looking for a female I
would have asked more questions and required more informa-
tion before signing the search warrant.” While this would sug-
gest it is plain the magistrate would not have issued the
warrant, the even unconscious benefit of hindsight cannot be
overlooked here. For example, at the time, Cheryl Crowe’s
testimony indicated that she was in her bedroom, awake, until
11 p.m., which is the latest time Stephanie could have been
alive. Therefore, it was not necessarily reckless for police to
assume no one could have entered through the door while
Cheryl was awake, and she was awake during the entire time
Stephanie could have been murdered.
[18] There appears to be enough uncertainty around the
state of the windows and doors that given the information
known to the police at that time, it would not have been plain
that any magistrate would not have issued the warrant, even
if it appears now, given all the information, that perhaps the
warrant should not have issued. Therefore, while not deciding
whether the omissions in the affidavit were sufficiently mate-
rial misrepresentations to constitute a violation of the Fourth
Amendment,20 we find the defendants entitled to qualified
immunity on this point, and affirm the district court’s grant of
summary judgment.
2. February 11 Search
The February 11 search warrant was based on: (1) the fact
that Michael was arrested for Stephanie’s murder and
Michael’s friendship with Aaron and Joshua; (2) the first
20
Here we exercise the discretion given in the Supreme Court’s recent
decision, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), to decide the
issue of whether the violation was clearly established without deciding
whether there was actually a violation in the case.
CROWE v. WRISLEY 1603
interview of Joshua, at his home, during which a knife was
seen in his possession; (3) the search of the Treadway resi-
dence which uncovered a knife that Aaron had reported miss-
ing; (4) the January 27 search of the Houser residence; (5)
information gained from Joshua’s statements during interro-
gation. Crowe I, 303 F. Supp. 2d at 1082-83. Some of the
information gained during Joshua’s interrogation must be
excluded. See Franklin, 312 F.3d at 438 (information in a
supporting affidavit must be “legally sufficient and reliable”).
As discussed previously, the district court determined that the
latter portion of Joshua’s February 10 interrogation was
coerced.21 See Crowe I, 303 F. Supp. 2d at 1081. During the
uncoerced part of his interrogation, Joshua stated that Aaron
had given him a knife and told him that the knife was used to
kill Stephanie and that he (Joshua) had agreed to hide the
knife. Id. Any other information, which was gained as a result
of coercion, must be excluded from the probable cause analy-
sis. Any information gained during the January 27 search of
the Houser residence must also be excluded, as there was
insufficient probable cause to search the house at that time.
[19] Thus, the information properly included in the affida-
vit was Michael’s arrest, the search of the Treadway resi-
dence, the initial interview of Joshua, and the information
from the uncoerced portion of Joshua’s February 10 interroga-
tion. Evaluating the information as a whole, there was a fair
probability that evidence related to the death of Stephanie
Crowe would be found at the Houser residence. See Gates,
462 U.S. at 238-39. The search warrant was supported by suf-
ficient probable cause. Accordingly, we affirm the district
court’s grant of summary judgment as to the February 11
search.
21
Defendants have not disputed this finding on appeal.
1604 CROWE v. WRISLEY
V. Strip Searches
On January 21, 1998, Michael, Cheryl, Stephen, and Shan-
non Crowe were strip searched and photographed nude or
semi-nude. The Crowes argue that these searches violated
their Fourth Amendment rights. In response, defendants argue
that the searches were conducted pursuant to valid consent
and were thus constitutional. See United States v. Patayan
Soriano, 361 F.3d 494, 501 (9th Cir. 2004) (searches con-
ducted pursuant to valid consent are constitutional). The dis-
trict court granted summary judgment in favor of defendants
with respect to Michael’s claim, but denied summary judg-
ment with respect to the claims of the remainder of the Crowe
family. Crowe II, 359 F. Supp. 2d at 1021-23. We affirm.
[20] Michael argues that although he did consent to the
strip search, his consent was obtained by coercion. It has long
been established that consent to search must be given freely
and voluntarily. See, e.g., Bumper v. North Carolina, 391 U.S.
543, 548 (1968). Whether consent was voluntarily given must
be determined by evaluating the totality of the circumstances
and the government has the burden to proof. Patayan Soriano,
361 F.3d at 501. However, at his deposition Michael testified
as follows:
Q. Do you recall anything else your father said about
the subject of the photographs?
A. Later, right before he did it, he told us to go ahead
and do it and help them out. Just do whatever we
could to help.
Q. Did he say why he wanted you to go ahead and
do the photos to help out?
A. He just told us to go do the photos to help out.
Q. When he said to help out, did you understand that
to mean that he was asking you to go ahead with the
CROWE v. WRISLEY 1605
photographs to help the officers determine what had
happened to Stephanie?
A. Yes.
Q. Were you willing to do that then?
A. Yes.
Q. Then did you voluntarily partake in the photo-
graphing process?
A. Yes.
[21] Although Michael argues that his father was told that
his family would be arrested if he didn’t consent to the search,
Michael does not allege that he was told anything of the sort
by either his father or the police. In light of Michael’s deposi-
tion testimony and the absence of any other evidence in the
record suggestive of coercion, there is no material issue of
genuine fact as to whether Michael validly consented to the
search. The district court thus properly granted summary
judgment in favor of defendants.22
[22] The record does, however, create a genuine issue of
material fact as to whether Cheryl, Stephen, and Shannon
Crowe validly consented to their strip searches. The Escon-
dido defendants cite deposition testimony from Michael and
Shannon to support their argument that the entire Crowe fam-
ily consented to strip searches. Specifically, they identify
Michael’s statement that “[my father] just told us to do the
photos to help out,” and Shannon’s statement that “I just went
along with it because I thought it would help.” These two
statements are not sufficient to meet the government’s burden
22
Michael additionally argues that he was too young to consent to a strip
search. However, he cites no authority suggesting that a 14-year-old can-
not consent to a strip search and we are aware of none.
1606 CROWE v. WRISLEY
of proving that any consent from the Crowes was freely and
voluntarily given, nor are they sufficient to demonstrate that
a reasonable officer would have thought that the Crowes
freely and voluntarily consented to the searches. The district
court properly denied summary judgment.
VI. Cheryl and Stephen Crowe’s Additional Fourth
Amendment Claims
Cheryl and Stephen Crowe claim two further Fourth
Amendment violations. First, they allege that warrants order-
ing them to provide blood samples were not supported by
probable cause. Second, they allege that they were unlawfully
detained in the Escondido police station on the day of Stepha-
nie’s murder. The district court denied summary judgment to
defendants on both counts, Crowe II, 359 F. Supp. 2d at 1023-
26, and we affirm.
A. Blood Samples
On February 5, 1998, Officer Claytor sought and obtained
search warrants for blood samples from Cheryl and Stephen.
Crowe II, 359 F. Supp. 2d at 1023. On February 6, 1998,
Cheryl and Stephen provided blood samples pursuant to the
warrants. Id. The district court held that the warrants were not
supported by probable cause because the evidence was sought
to prove that an individual other than Cheryl or Stephen com-
mitted the crime. Id. at 1023-24. The district court denied
qualified immunity, concluding that it was clearly established
that probable cause must be particularized with respect to the
person to be searched or seized. Id.
The Escondido defendants argue that they are entitled to
qualified immunity for two reasons. First, they argue that
Cheryl and Stephen consented to having their blood drawn,
based on deposition testimony from Stephen in which he
stated that they would have cooperated with a request for
blood in the absence of a search warrant. This argument is
CROWE v. WRISLEY 1607
unavailing because the Crowes did not give consent, they sub-
mitted to a search warrant. Crowe II, 359 F. Supp. 2d at 1023.
Defendants cannot hide behind a consent defense when no
such consent was given.
[23] Second, the Escondido defendants argue that the dis-
trict court erred in determining that the search warrants were
not supported by probable cause. The affidavit in support of
the warrants contained the following information:
(1) that Stephanie Crowe had been stabbed to death
in her home; (2) that Cheryl and Stephen Crowe
were in the house at the time of Stephanie’s death;
(3) that blood analysis would tend to show that a
“particular” (but unspecified) person committed the
murder; and (4) that to have valid test results, all per-
sons that had contact with the victim needed to be
eliminated as a source of the blood.
Id. Defendants argue, as they did before the district court, that
the affidavit was supported by probable cause because the
blood was sought to prove that someone other than Cheryl or
Stephen killed Stephanie. As the district court noted, the
Supreme Court and this Court have both long held that proba-
ble cause must be particularized with respect to the person to
be searched or seized. See, e.g., Ybarra v. Illinois, 444 U.S.
85, 91 (1979) (“Where the standard is probable cause, a
search or seizure of a person must be supported by probable
cause particularized with respect to that person.”); Rise v.
Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995), overruled on
other grounds by City of Indianapolis v. Edmond, 531 U.S. 32
(2000) (“[T]he drawing of blood from free persons generally
requires a warrant supported by probable cause to believe that
a person has committed a criminal offense and that his blood
will reveal evidence relevant to that offense . . . .”). As the
district court also noted, a police officer is not entitled to qual-
ified immunity for a search conducted pursuant to a search
warrant “where the warrant application is so lacking in indicia
1608 CROWE v. WRISLEY
of probable cause as to render official belief in its existence
unreasonable.” Mills v. Graves, 930 F.2d 729, 731 (9th Cir.
1991). Under clearly established Supreme Court and Ninth
Circuit law, no reasonable police officer could have believed
that the desire to prove that another person (presumably
Michael) killed Stephanie established probable cause to draw
Stephen and Cheryl’s blood. The district court properly
denied summary judgment and qualified immunity.
B. Unlawful Detention
[24] The district court also properly denied summary judg-
ment as to Cheryl and Stephen’s claim that they were unlaw-
fully detained at the Escondido police station on January 21,
1998. Cheryl and Stephen allege that when they attempted to
leave the police station Detective Wrisley pulled out his gun,
pointed it at Stephen’s chest, and ordered Stephen and Cheryl
back upstairs, where they remained until Wrisley told them
that they had to go to a hotel and could not leave with Ste-
phen’s brother, as Stephen had requested. Crowe II, 359 F.
Supp. 2d at 1026. The district court denied summary judg-
ment on the grounds that, viewing the facts in the light most
favorable to the plaintiffs, Cheryl and Stephen had been
seized and defendants failed to provide any justification. Id.
The Escondido defendants argue that Cheryl and Stephen
returned upstairs voluntarily. In support of that argument,
defendants cite Stephen’s deposition in which he stated that
after Detective Wrisley pointed a gun at them and ordered
them upstairs, Cheryl said “let’s go back upstairs” and Ste-
phen responded “fine, let’s go back upstairs.” Defendants’
argument is untenable. Assent in the face of an order from a
police officer, emphasized with a firearm, cannot reasonably
be interpreted as consent. The district court properly denied
summary judgment and qualified immunity.
VII. Conspiracy Claims
The district court granted defendants’ summary judgment
motion as to all conspiracy claims against defendant Blum
CROWE v. WRISLEY 1609
and Fourth Amendment conspiracy claims against defendant
McDonough on the grounds that neither Blum nor McDo-
nough physically participated in the relevant arrests and
searches and there was insufficient evidence to establish that
they was part of a conspiracy broad enough to encompass the
relevant claims. Crowe I, 303 F. Supp. 2d at 1064-67, 1098.
We reverse the district court’s decision as to Blum, and affirm
as to McDonough.
[25] To establish liability for a conspiracy in a § 1983 case,
a plaintiff must “demonstrate the existence of an agreement or
meeting of the minds” to violate constitutional rights. Mendo-
cino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301
(9th Cir. 1999) (internal quotation marks omitted). “Such an
agreement need not be overt, and may be inferred on the basis
of circumstantial evidence such as the actions of the defen-
dants.” Id. “To be liable, each participant in the conspiracy
need not know the exact details of the plan, but each partici-
pant must at least share the common objective of the conspira-
cy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865
F.2d 1539, 1541 (9th Cir. 1989) (en banc).
[26] Plaintiffs’ theory of liability as to Blum is that he con-
spired with the Escondido police and is thus liable for uncon-
stitutional acts committed by other defendants. “A private
individual may be liable under § 1983 if she conspired or
entered joint action with a state actor.” Franklin v. Fox, 312
F.3d 423, 441 (9th Cir. 2002). Establishing liability for a con-
spiracy between a private actor and a state actor is no differ-
ent from establishing liability for a conspiracy between two
state actors. The plaintiff must show “an agreement or meet-
ing of the minds to violate constitutional rights,” and “[t]o be
liable, each participant in the conspiracy need not know the
exact details of the plan, but each participant must at least
share the common objective of the conspiracy.” Id. (internal
quotation marks omitted).
[27] The record shows that the quality of Blum’s involve-
ment in the interrogations is not categorically inconsistent
1610 CROWE v. WRISLEY
with a tacit “meeting of the minds.” According to one of the
detectives, Blum helped the police formulate a “tactical plan”
to approach the interview. Moreover, the detectives “pretty
much” followed his advice after these consultations. Insofar
as these tactics and lines of questioning by the detectives
shock the conscience, as demonstrated above, summary judg-
ment in favor of Blum is unwarranted. A meeting of the
minds can be inferred from circumstantial evidence, and
Blum’s involvement in the interrogations, particularly in for-
mulating and directing the tactical plan, is sufficient for a rea-
sonable factfinder to conclude it was “unlikely to have been
undertaken without an agreement,” of some kind between the
defendants. Mendocino Envtl. Ctr., 192 F.3d at 1301. We
therefore reverse the district court’s grant of summary judg-
ment on this point.
[28] We also affirm the district court’s grant of summary
judgment on the Fourth Amendment conspiracy claim against
McDonough. The district court concluded that although “a
reasonable factfinder could find that there was a ‘meeting of
the minds’ between defendant McDonough and the other
defendants regarding the coercion of a confession from the
boys,” McDonough was not liable for the alleged Fourth
Amendment violations because the plaintiffs did not “demon-
strate that [McDonough] shared the common objective of the
larger conspiracy alleged by plaintiffs: a conspiracy to wrong-
fully prosecute and convict the boys.” Crowe I, 303 F. Supp.
2d at 1067. We agree. The key inquiry is whether McDo-
nough shared a “common objective” with the Escondido
police officers to falsely prosecute the boys. A “common
objective” to merely prosecute the boys is insufficient; fair
prosecution would not violate the boys’ constitutional rights.
It is too great a leap to conclude that help in obtaining a
confession—even a coerced confession—suggests that
McDonough shared the common objective of falsely prose-
cuting the boys. The district court’s grant of summary judg-
ment in favor of McDonough is affirmed as to all surviving
Fourth Amendment claims.
CROWE v. WRISLEY 1611
VIII. Deprivation of Familial Companionship Claims
The Crowes and the Housers each alleged that their Four-
teenth Amendment rights to familial companionship were vio-
lated by Michael’s and Aaron’s detentions. Additionally, the
Crowes allege that defendants denied them their Fourteenth
Amendment rights to familial companionship by placing
Michael and Shannon in protective custody prior to Michael’s
arrest.
The district court granted summary judgment in favor of
defendants as to the Crowes’ and Housers’ detention claims
on the ground that Michael and Aaron’s arrests were sup-
ported by probable cause and thus their detentions did not
constitute “unwarranted governmental interference” with the
families’ relationships. Crowe I, 303 F. Supp. 2d at 1098-99;
Crowe II, 359 F. Supp. 2d at 1039. Because Michael’s and
Aaron’s continued detentions were wrongfully justified by
their illegally coerced confessions, we reverse.
[29] “It is well established that a parent has a fundamental
liberty interest in the companionship and society of his or her
child and that the state’s interference with that liberty interest
without due process of law is remediable under [42 U.S.C. § ]
1983.” Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.
2001) (internal quotation marks omitted) (alteration in Lee);
see also Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th
Cir. 1987), overruled on other grounds by Hodgers-Durgin v.
de la Vina, 199 F.3d 1037 (9th Cir. 1999); Kelson v. City of
Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985)).
“[U]nwarranted state interference” with the relationship
between parent and child violates substantive due process.
Fontana, 818 F.2d at 1418.23
23
Defendants argue that the correct standard is whether defendants’ con-
duct “shocked the conscience.” There is no support in the relevant case
law for this assertion. The standard for deprivation of familial companion-
ship is “unwarranted interference,” not conduct which “shocks the con-
science.” See Lee, 250 F.3d at 686; Fontana, 818 F.2d at 1418.
1612 CROWE v. WRISLEY
The district court granted summary judgment against the
Crowes’ and Housers’ claims on the ground that Michael’s
and Aaron’s arrests were justified by probable cause. How-
ever, the lack of familial companionship that the Crowes and
Housers experienced was not due, in any significant part, to
the boys’ arrests; it was due to the boys’ incarceration. Thus,
the relevant consideration is not whether the boys’ were
wrongfully arrested; it is whether they were wrongfully
detained.
[30] We conclude that the boys were wrongfully detained.
Their coerced confessions were introduced at their Dennis H.
hearing, where it was determined that they would remain
incarcerated. However, the boys’ confessions were coerced
and thus not legally sufficient grounds upon which to make a
pre-trial detention determination. Having conducted the inter-
rogations, the officers were aware both that the confessions
were coerced and that the confessions could be used to keep
the boys in jail. We reverse the district court’s grant of sum-
mary judgment as to this claim.
The district court denied summary judgment as to the
Crowes’ familial companionship claim based on the place-
ment of Michael and Shannon in protective custody on the
ground that defendants failed to demonstrate that the place-
ment was warranted under applicable California law. Crowe
II, 359 F. Supp. 2d at 1039-40. We agree with the district
court and affirm its denial.
IX. Defamation Claims
A. Stephan
Michael and Aaron brought state law defamation claims
and § 1983 “defamation plus” claims against Deputy District
Attorney Summer Stephan based on statements she made dur-
ing an appearance on the news program “48 hours” shortly
after the indictments against the boys were dismissed. In her
CROWE v. WRISLEY 1613
motion for summary judgment, Stephan argued that the pieces
of her statements that were aired were taken out of context of
the interview as a whole. The interview lasted two hours and
twenty minutes, and the program aired two minutes and nine
seconds of that interview. Crowe I, 303 F. Supp. 2d at 1103.
The district court examined each of the statements plaintiffs
identified in their opposition to summary judgment as they
were made in the context of the unedited interview and ulti-
mately granted summary judgment in favor of Stephan. Id. at
1105-1112. On appeal, Michael and Aaron argue that the dis-
trict court erred because, in the context of the unedited inter-
view, Stephan’s statements imply that the boys killed
Stephanie.24
1. State Law Defamation
California Civil Code § 44 defines “defamation” as either
libel or slander. California Civil Code § 46 provides:
Slander is a false and unprivileged publication,
orally uttered, and also communications by radio or
any mechanical or other means which:
1. Charges any person with crime, or with having
been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infec-
tious, contagious, or loathsome disease;
24
As an initial matter, Stephan argues that Michael and Aaron waived
their claims as to any statement not specifically discussed in the Crowe
brief. This argument misses the point of the boys’ argument on this issue.
The boys did not claim that Stephan made several, separately actionable,
defamatory statements. Rather, they claim that her statements during the
interview, taken as a whole, communicate the defamatory statement that
the boys killed Stephanie. The boys have not waived any portion of their
defamation claims against Stephan.
1614 CROWE v. WRISLEY
3. Tends directly to injure him in respect to his
office, profession, trade or business, either by imput-
ing to him general disqualification in those respects
which the office or other occupation peculiarly
requires, or by imputing something with reference to
his office, profession, trade, or business that has a
natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity;
or
5. Which, by natural consequence, causes actual
damage.
If a statement falls within § 46(1)-(4), it is considered defama-
tory per se. See Rodriguez v. Panayiotou, 314 F.3d 979, 983
(9th Cir. 2002). Michael and Aaron allege that Stephan’s
statements violated California Civil Code § 46(1) by implying
that they killed Stephanie.25
[31] In order to fall outside the scope of First Amendment
protection, an alleged defamatory statement must “contain a
provably false factual connotation.” Gilbrook v. City of West-
minster, 177 F.3d 839, 861 (9th Cir. 1999) (quoting Milkovich
v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). Thus, in
reviewing a defamation claim, a court must first ask the
threshold question: “Could a reasonable factfinder conclude
that the contested statement implies an assertion of objective
fact?” Id. at 861-62. If the answer to that question is yes, then
the propriety of the district court’s grant of summary judg-
ment depends on whether Michael and Aaron created a triable
issue of fact as to the falsity of Stephan’s statements. Unelko
Corp. v. Rooney, 912 F.2d 1049, 1052 (9th Cir. 1990).
25
Plaintiffs do not allege that Stephan explicitly stated that the boys
killed Stephanie, nor does the transcript of the interview contain any such
explicit statement.
CROWE v. WRISLEY 1615
We have adopted a three-part test to determine whether a
reasonable factfinder could conclude that the contested state-
ment implies an assertion of objective fact:
First, we look at the statement in its broad context,
which includes the general tenor of the entire work,
the subject of the statements, the setting, and the for-
mat of the work. Next we turn to the specific context
and content of the statements, analyzing the extent of
figurative or hyperbolic language used and the rea-
sonable expectations of the audience in that particu-
lar situation. Finally, we inquire whether the
statement itself is sufficiently factual to be suscepti-
ble of being proved true or false.
Gilbrook, 177 F.3d at 862 (quoting Underwager v. Channel
9 Australia, 69 F.3d 361, 366 (9th Cir. 1995)). Additionally,
“defamatory meaning must be found, if at all, in a reading of
the publication as a whole . . . . Defamation actions cannot be
based on snippets taken out of context,” Kaelin v. Globe
Commc’ns Corp., 162 F.3d 1036, 1040 (9th Cir. 1998). Ste-
phan’s statements must be analyzed in the context of the
entire interview, not just the portion the program chose to air.
During the interview, Stephan explained the evidence that
had supported the prosecution of the boys, explained the deci-
sion to dismiss the indictments against the boys based on the
newly discovered evidence which implicated Tuite, and
repeatedly asserted that the investigation was on-going and
that it remained to be seen who might ultimately be brought
to trial for Stephanie’s murder. Michael and Aaron identify
several individual statements which they allege to be defama-
tory, including statements regarding the evidence which Ste-
phan said implicated them, as well as evidence which Stephan
said seemed contrary to a theory that Tuite killed Stephanie.26
26
The specific statements are detailed in the district court opinion. See
Crowe I, 303 F. Supp. 2d at 1105-09.
1616 CROWE v. WRISLEY
[32] Applying the Underwager three-part test to the alleged
defamatory statements, a reasonable fact-finder could not con-
clude that Stephan implied that the boys actually did kill
Stephanie. Viewed in the context of the interview as a whole,
even Stephan’s most questionable statements can only be
interpreted as describing the evidence that led the police to
investigate the boys and allowed the prosecution to continue
as far as it did and expressing the facts that the investigation
had not concluded and that it was still possible that either the
boys or Tuite would ultimately be tried for Stephanie’s mur-
der. Indeed Stephan repeatedly emphasized that it was unclear
who the real perpetrator was. For example, early in the inter-
view Stephan was asked “[D]o you believe that one day
somebody, someone, some people will pay for the murder of
Stephanie Crowe?” Stephan responded, “The conclusion
might be that the young men will face justice. It might be that
the transient will face justice. It might be that another person
will face justice.” Also, at the end of the interview, Stephan
was asked, “Are you saying that you believe the boys did it
and you just can’t prove it?” Stephan responded, “I’m not
saying that at all. I am saying that we have to start from the
beginning. . . . the young men, the transient and maybe others
out there are potential suspects in this case. We’re not exclud-
ing anyone at this point.” At most, Stephan implied that the
boys may have killed Stephanie, not that they necessarily did.
This expression of a possibility, particularly when juxtaposed
to another mutually exclusive possibility, does not express a
“provably false” fact. The district court thus properly granted
summary judgment.
2. Section 1983 “Defamation-Plus” Claims
A § 1983 “defamation-plus” claim requires an allegation of
injury to a plaintiff’s reputation from defamation accompa-
nied by an allegation of injury to a recognizable property or
liberty interest. Cooper, 924 F.2d at 1532. “There are two
ways to state a cognizable § 1983 claim for defamation-plus:
(1) allege that the injury to reputation was inflicted in connec-
CROWE v. WRISLEY 1617
tion with a federally protected right; or (2) allege that the
injury to reputation caused the denial of a federally protected
right.” Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d
636, 645 (9th Cir. 1999).
As discussed above, Stephan’s statements during the “48
Hours” interview were not defamatory as a matter of law.
Thus the boys’ defamation-plus claim fails as well, and the
district court properly granted summary judgment. See Coo-
per, 924 F.2d at 1532.
B. Blum
Aaron also brought a state-law defamation and a § 1983
defamation-plus claim against Dr. Lawrence N. Blum based
on statements Blum made to Escondido police officers.
Detective Claytor testified in a deposition that Blum assessed
Aaron as “exhibiting sociopathic tendencies.” Crowe I, 303 F.
Supp. 2d at 1112. Claytor also testified that Blum told the
Escondido Police Department that “[Aaron] is a Charles Man-
son with an IQ.” Id. In addition, Blum admitted in his own
deposition that during a phone call with Detective Anderson
on January 31, 1998, Blum stated that he thought that Aaron
was a “Charlie Manson wannabe” and that he was “highly
manipulative and controlling.” Id. The district court granted
summary judgment, concluding that these statements were not
defamatory as a matter of law.
1. State Law Defamation
Aaron argues that the district court erred because the state-
ments implied that Aaron participated in Stephanie’s murder
and thus constitute defamation per se under California Civil
Code § 46(1). First, the statements regarding Aaron “exhibit-
ing sociopathic tendencies” and being “highly manipulative
and controlling” cannot constitute defamation per se under
California Civil Code § 46(1) because they do not charge
Aaron with a crime. Rather, they are statements regarding
1618 CROWE v. WRISLEY
Aaron’s psychological profile. While they may—or may not
—be provably false, they do not constitute defamation per se,
Aaron would have to allege actual damage to maintain a defa-
mation allegation. See Cal. Civil Code § 46(5). As Aaron has
made no such allegation, his defamation claim as to these two
statements necessarily fails.
[33] Aaron’s defamation claim based on the Charles Man-
son comparison also fails. First, the statement is “the type of
colorful, figurative rhetoric that reasonable minds would not
take to be factual.” Gilbrook, 177 F.3d at 862 (reference to
plaintiff as a “Jimmy Hoffa” not actionable); see also Under-
wager, 69 F.3d at 367 (statement that plaintiff is “intrinsically
evil” not actionable because not capable of verification). Sec-
ond, in the context in which it was given—a statement to
police by a psychologist contracted to observe police
interrogations—the statement can most reasonably be inter-
preted as a commentary on Aaron’s psychological profile, as
opposed to an assertion that he committed a particular crime.
The district court properly granted summary judgment in
favor of Blum.
2. Section 1983 “Defamation-Plus” Claim
Aaron’s defamation-plus claim fails because Blum’s state-
ments were not defamatory as a matter of law. The district
court properly granted summary judgment as to this claim as
well. See Cooper, 924 F.2d at 1532.
X. Municipal Liability Claims
In their complaint, plaintiffs assert causes of action against
the City of Escondido and the City of Oceanside under Monell
v. Department of Social Services, 436 U.S. 658 (1978).
Because the district court held that McDonough—the only
Oceanside police officer named in the suit—was entitled to
summary judgment with respect to all of plaintiffs’ claims, the
district court determined that the City of Oceanside was also
CROWE v. WRISLEY 1619
entitled to summary judgment on plaintiffs’ Monell claims.
Crowe I, 303 F. Supp. 2d at 1115. Similarly, the district court
granted summary judgment with respect to the Monell claims
against the City of Escondido which were predicated on the
alleged Fifth Amendment violations. Id.; see also Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (“[N]either Monell . . .
nor any other of our cases authorizes the award of damages
against a municipal corporation based on the actions of one of
its officers when in fact the jury has concluded that the officer
inflicted no constitutional harm.”).
Because we hold that the officers did inflict constitutional
harm, we consider the Monell claim. Monell held that “[l]ocal
governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.”
436 U.S. at 690. A municipality is not liable for all constitu-
tional torts committed by its employees, however: “[A]
municipality cannot be held liable solely because it employs
a tortfeasor—or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Id. at
691. The constitutional tort must have been committed “pur-
suant to official municipal policy.” Id.
[34] On appeal, plaintiffs allege their Monell claim on the
basis of statements made by Escondido and Oceanside offi-
cials that McDonough, Claytor, and Wrisley complied with
Escondido’s and Oceanside’s policies and procedures. How-
ever, Monell is clear that the constitutional tort must follow
from “official municipal policy.” Plaintiffs do not allege that
Escondido or Oceanside municipal policy permits or encour-
ages the practice of coercing confessions. Therefore, the
Monell claims fail.
XI. Conclusion
We reverse the district court’s grant of summary judgment
as to: (1) Michael and Aaron’s Fifth Amendment claims; (2)
1620 CROWE v. WRISLEY
Michael and Aaron’s Fourteenth Amendment substantive due
process claims; (3) all otherwise surviving Fourth Amend-
ment claims against McDonough; (4) all otherwise surviving
claims against Blum; (5) the Crowes’ deprivation of familial
companionship claim based on Michael’s detention; (6) the
Housers’ deprivation of familial companionship claim based
on Aaron’s detention; and (7) all otherwise surviving claims
against the Cities of Escondido and Oceanside. We affirm the
district court’s grant of summary judgment as to: (1) Aaron’s
Fourth Amendment claim that police lacked probable cause to
arrest him; (2) Michael’s Fourth Amendment claim that police
lacked probable cause to arrest him; (3) Michael’s claim that
police violated his Fourth Amendment rights by strip search-
ing him; (4) Aaron’s Fourth Amendment claim that the war-
rants authorizing the search of his home were not supported
by sufficient probable cause; (5) the conspiracy claims against
McDonough; (6) Michael and Aaron’s defamation claims
against Stephan; and (7) Aaron’s defamation claim against
Blum. Additionally, we affirm the district court’s denial of
summary judgment as to: (1) Cheryl, Stephen, and Shannon
Crowes’ claims that police violated his Fourth Amendment
rights by strip searching them; (2) Cheryl and Stephen’s
Fourth Amendment claims that the warrant authorizing police
to draw blood samples was not supported by probable cause;
(3) Cheryl and Stephen’s Fourth Amendment claims of
wrongful detention; and (4) the Crowes’ deprivation of famil-
ial companionship claims based on the placement of Michael
and Shannon in protective custody. We remand to the district
court for further proceedings consistent with this opinion.
Each party shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.