A LITTLE BIT OF SHOOTY FACE
Published in Flagpole Magazine, p. 8 (July 2, 2003).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
The Wall Street Journal, citing unnamed government sources,
recently revealed that American intelligence agents and law enforcement
officials stationed in Afghanistan and at Guantanamo Bay have been
authorized to use “a little bit of smacky face” to make prisoners talk
during interrogation. “If you don’t violate someone’s human
rights some of the time, you probably aren’t doing your duty,” one
anonymous U. S. official was quoted as saying. Americans were
assured, however, that the face-slapping of prisoners to induce them to
talk was nothing to worry about. There would be no revival of the
third degree for persons arrested on criminal charges in this
country. The prisoners subjected to having their faces smacked as
an interrogation technique would be foreigners suspected of terrorist
activities held outside the United States, and the technique would be
used to obtain intelligence information, not to obtain incriminating
statements for use in court. Besides, we were additionally
assured, within the United States smacking prisoners in the face to get
them to talk is impermissible under the Bill of Rights, and federal and
state courts would never tolerate such treatment of criminal suspects
in this country.
A recent U. S. Supreme Court decision, however, casts doubt on these
assurances. The decision raises troubling questions about whether
the Supreme Court now defers too much to law enforcement when
police in America interrogate persons in their custody who are
suspected of committing crimes punishable in federal or state
court. The decision involves a prisoner who was not slapped but
shot in the face.
On Nov. 28, 1997, in Oxnard, California, a 29-year old agricultural
laborer, Oliverio Martinez, got into a brief altercation with two
Oxnard police officers during which one of the officers shot him five
times. One bullet struck Martinez in the face and permanently
blinded him, while another bullet fractured a vertebra, permanently
paralyzing him from the waist down. Three other bullets tore
through his leg around the knee joint. The officers then
A third officer, Benjamin Chavez (a police sergeant and patrol
supervisor), arrived at the scene minutes later along with
paramedics. Chavez rode to the hospital in the ambulance with
Martinez. At the hospital, as emergency room personnel treated
Martinez, Chavez began a tape-recorded interrogation of Martinez.
The interrogation, which was interrupted several times when Chavez
would leave and then return to the emergency room, lasted a total of 10
minutes during a 45-minute interval. In violation of the
self-incrimination protections in the Miranda decision, Martinez was at
no time advised of his rights. Martinez was never charged with
any crime, and the statements he made during his interrogation were
never used in court against him in any criminal prosecution.
The printed transcript of Chavez’s tape-recorded interrogation of Martinez is set forth below in the Appendix to this article.
Martinez filed a civil rights lawsuit for damages against Chavez,
asserting that the interrogation was coercive and violated Martinez’s
rights under both the fifth amendment self-incrimination clause and the
fourteenth amendment due process clause. (The self-incrimination
privilege and the right to due process provides separate, independent,
overlapping protections against abusive interrogation techniques used
by police to extract confessions. The self-incrimination
privilege protects criminal suspects under arrest from being compelled
to incriminate themselves, and due process prohibits police from
coercing suspects to confess, irrespective of whether they are in
custody.) Chavez invoked the defense of qualified immunity, under
which a policeman is immune from civil liability and entitled to
immediate dismissal of the lawsuit against him if he did not violate
anyone’s rights, or if the rights violated were not clearly
established at the time of the violation.
The federal district court where the civil rights action had been filed
entered a summary judgment against Chavez on the qualified immunity
issue, finding that the interrogation was unconstitutionally coercive
and that a reasonable officer would have known that to interrogate
Martinez under the circumstances was illegal. The court found
that Martinez “had been shot in the face, both eyes were injured; he
was screaming in pain, and coming in and out of consciousness while
being repeatedly questioned about details of the encounter with the
police.” It further found that “during the questioning at the
hospital, [Martinez] repeatedly begged for treatment; he told [Chavez]
he believed he was dying eight times; complained that he was in extreme
pain on fourteen separate occasions; and twice said he did not want to
talk any more.”
Chavez appealed the district court decision to the United States Court of Appeals for the Ninth Circuit.
The Ninth Circuit framed the issue before it as “whether a police
officer who conducts a coercive, custodial interrogation of a suspect
who is being treated for life-threatening, police-inflicted gunshot
wounds may invoke qualified immunity in a civil suit.” The Ninth
Circuit held that the coercive questioning of Martinez violated both
the self-incrimination privilege and due process of law. The
purpose of those basic rights, it determined, was “to prevent coercive
interrogation practices that are destructive of human dignity.”
It further held that the fact that Martinez’s statements had never been
used against him in a criminal trial was irrelevant; a policeman
violates constitutional rights “when he obtains a confession by
coercive conduct, regardless of whether the confession is subsequently
used at trial.” Finally, the Ninth Circuit held that Chavez was
not entitled to qualified immunity. “A reasonable officer,
questioning a suspect who had been shot five times by the police and
then arrested, who had not received Miranda warnings, and who
was receiving medical treatment for excruciating, life-threatening
injuries that sporadically caused him to lose consciousness, would have
known that persistent interrogation of the suspect despite repeated
pleas to stop violated the suspect’s fifth and fourteenth amendment
right to be free from coercive interrogation.” The Ninth Circuit
therefore affirmed the judgment of the district court. Martinez v. City of Oxnard, 270 F. 3d 852 (9th Cir. 2001).
The Ninth Circuit decision was handed down on Oct. 30,
2001. Thereafter, Chavez asked the U. S. Supreme Court to
review the Ninth Circuit decision, and on June 3, 2002, the Supreme
Court agreed to do so. A few weeks ago, on May 27, 2003, the
Supreme Court issued its ruling in Chavez v. Martinez, 538 U.S. 760 (2003), overturning the Ninth Circuit decision.
Six Supreme Court justices filed opinions in the case, with no single
opinion representing the holding of the Court on all the issues before
The lead opinion was by Justice Clarence Thomas. Whereas both the
district court and the Ninth Circuit were appalled by Chavez’s
interrogation of Martinez, Thomas, who is famous for peppering his
opinions with sarcastic or ironical jabs at conduct he dislikes,
betrays not a whiff of concern about, much less disapproval of,
Chavez’s relentless interrogation of Martinez. In setting out the
facts of the case Thomas carefully omits mentioning various material
facts which had been brought out in the lower court rulings and
tended to evoke sympathy for Martinez. Thomas does not tell us
that Martinez was shot in the face, and rather than saying that
Martinez was shot five times Thomas says Martinez was shot “several
times;” Thomas does not point out that after Martinez had been shot he
was handcuffed, only that he was “arrested;” Thomas never mentions that
during the interrogation Martinez was drifting in and out of
consciousness and at times screaming with pain; and Thomas’s recitation
of the facts fails to mention that the medical staff at the emergency
room several times asked Chavez to leave the room, but that he kept
returning to resume the questioning. In referring to the
questioning of Martinez, Thomas consistently uses the word “interview”
rather than “interrogation,” except on one occasion when he meekly
speaks of “ Chavez’s allegedly coercive interrogation of ...
Martinez.” Thomas is also careful to bring to our attention
facts, not mentioned by the courts below, which reflect adversely on
Martinez. We learn, for example, from Thomas’s opinion that
during the interrogation Martinez admitted being a regular heroin user.
Turning to the legal issues, Justice Thomas concluded that police who
conduct custodial interrogations of suspects without first
administering the Miranda warnings cannot, without more, be
sued for damages. Five other justices–Chief Justice Rehnquist,
and Justices Scalia, O’Connor, Souter, and Breyer–agreed with Thomas’s
disposition of this issue, making it the majority holding of the Court.
With the same five justices concurring with him, Thomas also concluded
that a violation of the self-incrimination privilege can never occur
unless the suspect’s compelled confession is introduced into evidence
at the suspect’s criminal trial; therefore, no matter what techniques
of compulsion are used to obtain a confession, the self-incrimination
privilege is not violated if the confession is not introduced in
a criminal proceeding. Thomas’s reasoning consisted of
formalistically categorizing the privilege against self-incrimination
as a trial right which can be violated only when compelled statements
are used at trial.
The three dissenting justices on this self-incrimination issue were
less concerned with technicalities. In an opinion in which
Justices Stevens and Ginsburg concurred, Justice Kennedy argued: “A
constitutional right is traduced the moment torture or its close
equivalents are brought to bear. Constitutional protection for a
tortured suspect is not held in abeyance until some later criminal
proceeding takes place.... To tell our whole legal system that
when conducting a criminal investigation police officials can use
severe compulsion or even torture with no present violation of the
self-incrimination privilege can only diminish a celebrated provision
in the Bill of Rights.... In my view the self-incrimination
clause is applicable at the time and place police use compulsion to
extract a statement from a suspect.... [T]he use of torture or its
equivalent in an attempt to induce a statement violates an individual’s
fundamental right to liberty of the person.... The Constitution
does not countenance the official imposition of severe pain or pressure
for purposes of interrogation.”
These three dissenting justices also concluded that the interrogation
of Martinez violated his right against self-incrimination, which
necessarily means that Martinez’s statements would have been
inadmissible in court. Justice Souter, joined in by Justice
Breyer, concluded that Martinez’s confession “would clearly be
inadmissible if offered in evidence against him,” while Justice
O’Connor refused to express a view on the matter. Thus, a total
of five justices agreed that the statements Chavez extracted from
Martinez could not, under the fifth amendment, have been admitted
against him in court.
By a 6-3 vote, therefore, the Supreme Court held that in conducting the
interrogation and obtaining the unused confession Chavez had not
violated Martinez’s self-incrimination privilege, although by a 5-3
vote the Court simultaneously determined that under the
self-incrimination clause the confession could not have been admitted
in evidence against Martinez in court. Accordingly, the Supreme
Court reversed the decision of the Ninth Circuit.
The remaining issue before the Court was whether, despite being
precluded from suing Chavez on self-incrimination grounds, Martinez
would nonetheless to be permitted to continue with his lawsuit against
Chavez insofar as it was based on due process grounds. It is
well-established that the constitutional right to due process of law is
a right which may be violated even though the victim of the violation
is never prosecuted. In the pretrial setting due process
prohibits police from using criminal investigation techniques that are
shocking to conscience, especially where they involve brutality and
offend human dignity. The seminal Supreme Court cases are Brown v. Mississippi, 297 U.S. 278 (1936), which involved confessions extorted from murder suspects by police brutality, and Rochin v. California,
342 U.S. 165 (1952), where police subjected a drug suspect to stomach pumping to
retrieve swallowed drugs. In both cases the Supreme Court reversed the
state criminal convictions on the due process ground that the police
conduct had been shocking to the conscience.
In his opinion Justice Thomas conceded that “police torture or other
abuse that results in a confession ... not used at trial” could
constitute a due process violation. He also announced, however,
that he was “satisfied that Chavez’s questioning did not violate
Martinez’s due process rights,” and that he entirely rejected
“Martinez’s characterization of Chavez’s behavior as ‘egregious’ or
‘conscience shocking.’” As far as Justice Thomas was concerned,
therefore, Martinez’s statements would have been admissible in evidence
against him if he had been tried for a crime.
It is doubtful that all the power plants in the world are capable of
generating enough current to shock Justice Thomas’s conscience with
respect to criminal suspects invoking due process rights. In
Thomas’s view, police conduct cannot be shocking to the conscience
unless it is “intended to injure in some way unjustifiable by any
government interest,” and there was no such intention in this
case. Here, Thomas asserted, “there is no evidence that Chavez
acted with a purpose to harm Martinez by intentionally interfering with
his medical treatment,” and “[m]edical personnel were able to treat
Martinez throughout the interview.” Furthermore, “Chavez ceased
his questioning to allow tests and other procedures to be performed,”
and there was no “evidence that Chavez’s conduct exacerbated Martinez’s
injuries or prolonged his stay in the hospital.” “Moreover, the
need to investigate whether there had been police misconduct
constituted a justifiable governmental interest given the risk that key
evidence would have been lost if Martinez had died without the
authorities ever hearing his side of the story.” To bolster his
amazing conclusion that Chavez’s interrogation of Martinez did not
violate due process, Thomas (with spectacular inappositeness) inserted
into his opinion this sentence from Chief Justice Warren’s opinion in Miranda:
“It is an act of responsible citizenship for individuals to give
whatever information they may have to aid in law enforcement.”
Under Justice Thomas’s crabbed view of what it takes for egregious
misbehavior by police to constitute a due process violation, a view
which requires proof that police intended to inflict injury not
justified by a legitimate government interest, it would be almost
impossible for outrageous police activities connected with a criminal
investigation to ever violate due process, and the essential principle
that due process forbids police from using shocking methods of
criminal investigation would have no practical significance. A
criminal suspect faces enormous difficulties when he tries to prove
what the police actually intended when they engaged in certain
conduct. Police investigating criminal activity can almost always
plausibly claim that what they did was intended to obtain the truth
about criminal activity and therefore was intended to serve the
governmental interest in suppressing crime. Furthermore,
virtually all police criminal investigation techniques, no matter how
offensive, actually directed at solving crime are, under Thomas’s
standard, permitted by due process, since they are, per se, intended to
satisfy the government’s interest in suppressing crime. In
determining that Chavez interrogated Martinez and obtained the
confession in conformity with due process requirements, Justice Thomas
simply confirms that under his view due process requirements are nearly
meaningless. In fact, under Thomas’ toothless conception of due
process the landmark decisions in Brown v. Mississippi and Rochin v. California
were wrongly decided because the coercing of the confessions from Brown
and his codefendants was intended to discover who had committed an
unsolved murder, and the pumping of Rochin’s stomach was intended to
discover the truth about the capsules police had seen Rochin ingest.
Justice Thomas’s view, that Martinez’s statements were obtained in
compliance with due process protections and would have been admissible
in court, is as weird as it is fantastic. It is also indicative
of an anti-human rights mentality that borders on the pathological,
rendering Thomas incapable of comprehending the patent coerciveness of
the interrogation and unable to grasp the key point that, in the words
of Justice Kennedy, “the officer [Chavez] acted with the intent of
exploiting Martinez’s condition for purposes of extracting a
statement.” Shot in the face, blinded, screaming with severe
pain, believing he was dying, begging for treatment, suffering mental
anguish, losing consciousness periodically, Martinez was nonetheless
repeatedly questioned by Chavez, despite his pleas to desist and his
requests for treatment. As both Justices Kennedy and
Ginsburg noted, it is “hard to imagine a situation less conducive to
the exercise of rational intellect and a free will” than the
circumstances in which the confession was elicited.
Only two justices, Chief Justice Rehnquist and Justice Scalia,
concurred in the portion of Justice Thomas’s opinion concluding that
Chavez’s interrogation of Martinez satisfied due process requirements,
and therefore Thomas’s opinion represents the minority view of the
Court on the due process issue. Part II of Justice Souter’s
opinion, in which Justices Stevens, Kennedy, Ginsburg, and Breyer
concurred, constitutes the Court’s majority opinion on the due process
issue; in that part of his opinion, Justice Souter expressed the view
that the due process issue should be addressed by the Ninth Circuit on
remand. Justice O’Connor was the only member of the Court to
decline to address the due process issue at all. Thus, despite
having reversed the Ninth Circuit by a 6-3 vote on the
self-incrimination privilege issue, the Court also, by a 5-3 vote,
authorized the Ninth Circuit, on remand, to address the due process
issue. One of the five justices voting to remand the due process
claim, Justice Stevens, speaking for himself alone, stated in his
opinion that a due process violation had been proved, describing
Chavez’s interrogation of Martinez as “a classic example of a violation
of a constitutional right implicit in the concept of ordered liberty.”
The Supreme Court’s decision “is a good win for the law enforcement
community,” crowed an attorney with the right-wing Criminal Justice
Legal Foundation, which filed a brief in the Supreme Court in support
of Chavez. “It will be the rare case where an officer is ever
held liable for questioning,” he triumphantly added. (The
Foundation’s press release commenting glowingly on the Supreme Court
decision is, incredibly, entitled “Police Officers Cannot be Sued For
The Supreme Court decision in Chavez v. Martinez may be a
victory for the gendarmerie, but it is a defeat for Americans and the
Bill of Rights. The decision is simply another in a series of
decisions stretching over the past three decades in which the Court has
inexorably relaxed constitutional restrictions on police criminal
investigation activities, especially in regard to custodial
interrogation of suspects and search and seizure practices. Not
only did the Court in Chavez v. Martinez exempt police from
civil liability for failing to give the Miranda warnings, but it
eliminated the self-incrimination privilege as a protection against the
coercing of a confession where the confession is not used in
court. Only a bare majority of the Court thought Martinez’s
confession would have been inadmissible in court under the fifth
amendment self-incrimination clause, and only by the same bare majority
vote did the Court decide that the issue of whether the interrogation
of Martinez contravened due process could even be addressed by the
lower courts. Justice Stevens alone openly announced that the
interrogation violated due process, while three members of the Court
(Chief Justice Rehnquist and Justices Scalia and Thomas), took the
unbelievable position that the interrogation met all due process
Chavez v. Martinez will have baleful effects. It will
encourage police to continue or even expand their use of aggressive
interrogation techniques on prisoners, and it will reduce the role of
the judiciary in the monitoring of custodial interrogation
practices. If the highest court in the land, in a case involving
an interrogation as coercive and abusive as that of Martinez, is
incapable of strongly and forthrightly condemning what happened, what
message does that send to the American judiciary? If three of the
Court’s justices in a case such as this, where the prisoner
interrogated had been shot in the face, boldly announce that they see
no constitutional problem with the interrogation, and a fourth justice
declines even to decide whether the confession was admissible in court
under the fifth amendment or whether the interrogation violated due
process, is it likely that this country’s judges will conclude that
they have been commissioned by the Court to be alert and sensitive to
the plight of prisoners interrogated by the police? Does not the
Court’s decision possibly portend an America where, from now on, not
only might a little bit of smacky face be lawful in police custodial
interrogations under some circumstances, but even a little bit of
Bereft of humanity, strangely endeavoring to excuse or minimize
police officer Chavez’s treatment of suspect Martinez, Justice Thomas’s
lead opinion in Chavez v. Martinez will accelerate the growing
realization that his voting record on human rights issues is
abominable. Justice Thomas’s opinion did not, however, surprise
persons who have studied his career. The truth is that anyone
familiar with his voting pattern in cases involving criminal procedure,
civil rights, and civil liberties could have predicted how Thomas would
cast his vote in the case.
Indeed, Justice Thomas’s vote was not merely predictable; it was in fact predicted–by me. On May 17, when Chavez v. Martinez was still pending in the Supreme Court, I delivered a speech (Embarrassing Justice, printed in full in Flagpole
May 28) in which I summarized the case and predicted that when the
Supreme Court handed down its decision “Justice Thomas will vote to
deny damages and dismiss this civil rights action.” In his
lead opinion in the case Justice Thomas, as I have shown above,
concluded that Chavez had violated no rights of Martinez and was
entitled to qualified immunity. In Thomas’s view, Martinez was
not entitled to any relief and his lawsuit should have been dismissed
in its entirety. This is just what I predicted. This may
not make me a Nostradamus, but it does authorize me to say to all those
who undergo the unpleasant experience of reading Thomas’s noisome
opinion in the tragic Chavez v. Martinez decision: I told you so!
Note: On July 30, 2003, on
remand from the U.S. Supreme Court, the U.S. Court of Appeals for the
Ninth Circuit held that police sergeant Chavez’s alleged conduct of
brutally and incessantly questioning suspect Martinez, after he had
been shot in the face, back, and leg, interfering with Martinez’s
medical treatment while he was screaming in pain and going in and out
of consciousness, and continuing the “interrogation” over Martinez’s
pleas for him to stop so that he could receive treatment, if proven,
violated Martinez’s clearly established due process rights, and that
thus Chavez was not entitled to qualified immunity in civil rights
action brought by Martinez. Martinez v. Chavez, 337 F.3d 1091 (9th Cir. 2003), cert. denied, 542 U.S. 953 (2004).
See also Martinez v. City of Oxnard,
229 F.R.D. 129 (C.D. Cal. 2005) (in 42 U.S.C. § 1983 action for damages
by Martinez against municipality, chief of police Lopez, and senior
police officer Salinas, court granted plaintiff Martinez’s motion to
allow intervention of another individual who was allegedly injured in
an unjustified shooting and had sued defendant Salinas).
Here, reproduced verbatim and in its entirety from the Supreme Court’s Chavez v. Martinez
decision, is the English translation of portions of the tape-recorded
interrogation in Spanish that occurred in the hospital emergency room.
Chavez: What happened? Olivero, tell me what happened.
O[liverio] M[artinez]: I don't know
Chavez: I don't know what happened (sic)?
O. M.: Ay! I am dying.
Ay! What are you doing to me?
No, ... ! (unintelligible scream).
Chavez: What happened, sir?
O. M.: My foot hurts ...
Chavez: Olivera. Sir, what happened?
O. M.: I am choking.
Chavez: Tell me what happened.
O. M.: I don't know.
Chavez: “I don't know.”
O. M.: My leg hurts.
Chavez: I don't know what happened (sic)?
O. M.: It hurts ...
Chavez: Hey, hey look.
O. M.: I am choking.
Chavez: Can you hear? look listen, I am Benjamin Chavez with the police here in Oxnard, look.
O. M.: I am dying, please.
Chavez: OK, yes, tell me what happened. If you are going to die, tell me what happened. Look I need to tell (sic) what happened.
O. M.: I don't know.
Chavez: You don't know, I don't know what happened (sic)? Did you talk to the police?
O. M.: Yes.
Chavez: What happened with the police?
O. M.: We fought.
Chavez: Huh? What happened with the police?
O. M.: The police shot me.
O. M.: Because I was fighting with him.
Chavez: Oh, why were you fighting with the police?
O. M.: I am dying ...
Chavez: OK, yes you are dying, but tell me why you are fighting, were you fighting with the police?
O. M.: Doctor, please I want air, I am dying.
Chavez: OK, OK. I want to know if you pointed the gun [to yourself] at the police.
O. M.: Yes.
Chavez: Yes, and you pointed it [to yourself]? (sic) at the police pointed the gun? (sic) Huh?
O. M.: I am dying, please ...
Chavez: OK, listen, listen I want to know what happened, ok?
O. M.: I want them to treat me.
Chavez: OK, they are do it (sic), look when you took out the gun from the tape (sic) of the police ...
O. M.: I am dying ...
Chavez: Ok, look, what I want to know if you took out (sic) the gun of the police?
O. M.: I am not telling you anything until they treat me.
Chavez: Look, tell me what happened, I want to know, look well don't you want the police know (sic) what happened with you?
O. M.: Uuuggghhh! my belly hurts ...
Chavez: Nothing, why did you run (sic) from the police?
O. M.: I don't want to say anything anymore.
O. M.: I want them to treat me, it hurts a lot, please.
Chavez: You don't want to tell (sic) what happened with you over there?
O. M.: I don't want to die, I don't want to die.
Chavez: Well if you are going to die tell me what happened, and right now you think you are going to die?
O. M.: No.
Chavez: No, do you think you are going to die?
O. M.: Aren't you going to treat me or what?
Chavez: Look, think you are going to die, (sic) that's all I want to
know, if you think you are going to die? Right now, do you think you
are going to die?
O. M.: My belly hurts, please treat me.
O. M.: If you treat me I tell you everything, if not, no.
Chavez: Sir, I want to know if you think you are going to die right now?
O. M.: I think so.
Chavez: You think (sic) so? Ok. Look, the doctors are going to help you with all they can do, Ok? That they can do.
O. M.: Get moving, I am dying, can't you see me? Come on.
Chavez: Ah, huh, right now they are giving you medication.