Abarca v. Franchini et al
Filing
46
For the reasons stated in the attached memorandum opinion and order, defendants' motion for summary judgment 26 is granted. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 3/29/18:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LASARO ABARCA,
Plaintiff,
v.
Case No.
CHICAGO POLICE DETECTIVES
TANNIA FRANCHINI #20845,
MOREEN HANRAHAN #20565,
CITY OF CHICAGO, and
ASSISTANT STATES ATTORNEY
ANDREA KERTEN,
16 C 2494
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion for Summary Judgment
[ECF No. 26].
For the reasons herein, the Motion is granted.
I.
Plaintiff
Illinois
Lasaro
citizen
who
BACKGROUND
Abarca
was
(“Abarca”)
suspected
sexually abusing his daughter.
charges.
is
and
a
Spanish-speaking
later
charged
for
He was acquitted at trial of all
(Pl.’s Resp. to Defs.’ Fact Statement ¶ 80.)
Defendant Tannia Franchini is a detective in the Chicago
Police Department in the Special Investigations Unit and was
assigned
to
Abarca’s
case
on
May
14,
2013.
(Id.
¶¶
16-17.)
During an interview with Abarca’s minor daughter and her mother,
Abarca’s daughter told the investigators that Abarca placed his
hand inside her underwear and touched her private parts.
¶¶
18,
22.)
The
child’s
statements. (Id. ¶ 26.)
mother
corroborated
her
(Id.
daughter’s
Based on the information from this
interview, Detective Franchini authorized the arrest of Abarca.
(Id. ¶ 27.)
Abarca was arrested on the morning of May 27, 2013 and
transported
to
the
Chicago
Police
Department
19th
District
Station. (Id. ¶¶ 28-29.)
Before
discussing
the
details
of
the
subsequent
interrogation, Abarca’s English skills are relevant.
born in Mexico where he completed high school.
Pl.’s Add’l Facts ¶ 1.)
adult
in
1991
and
Abarca was
(Defs.’ Resp. to
He arrived in the United States as an
attended
two
months
of
English
(Pl.’s Resp. to Defs.’ Fact Statement ¶¶ 6-7.)
here ever since, over 25 years. (Id.)
courses.
He has lived
In all six of Abarca’s
jobs in the United States, he spoke Spanish the majority of the
time. (Defs.’ Resp. to Pl.’s Add’l Facts ¶¶ 2-5.)
Spanish
with
Spanish,
and
his
spoke
kids,
a
took
mix
of
his
driver’s
Spanish
daughter’s mother. (Id. ¶¶ 7-8.)
and
He speaks
license
English
exam
with
in
his
Abarca states that he can read
English, yet barely understands it. (Pl.’s Add’l Facts ¶ 9.)
At
approximately
7:45
p.m.
on
the
day
of
his
arrest,
Detective Franchini brought Abarca to an interview room. (Pl.’s
- 2 -
Resp. to Defs.’ Fact Statement ¶ 30.)
Abarca’s handcuffs were
removed and Detective Franchini asked him in Spanish whether he
preferred to speak in English or in Spanish, since Detective
Franchini is fluent in both. (Id. ¶ 31.)
in English. (Id. ¶ 32.)
speed
up
the
Abarca chose to speak
According to Abarca, he hoped it would
questioning
process.
(Id.
¶
38.)
Detective
Franchini told Abarca that if at any point he did not understand
something in English he should let her know so she could repeat
it in Spanish. (Id. ¶ 33.)
After Detective Franchini read Abarca each Miranda right in
English,
Abarca
¶¶ 34-35.)
said
(in
Detective
English)
Franchini
that
he
further
understood.
relates
that
(Id.
it
was
apparent to Detective Franchini that he could understand English
based on his answers to her questions over the course of the
hour-long
Abarca
interrogation.
maintains
he
did
(Id.
not
¶¶ 33,
36,
understand
40.)
what
(Defs.’ Resp. to Pl.’s Add’l Facts ¶¶ 15-16.)
In
she
contrast,
was
saying.
After Detective
Franchini finished reading his rights, Abarca agreed in English
to speak with her. (Pl.’s Resp. to Defs.’ Fact Statement ¶ 37.)
When
Detective
Franchini
first
asked
Abarca
about
inappropriately touching his minor daughter, Abarca denied doing
so.
(Id.
¶ 42.)
He
simply
repeated:
“No,
I
anything.” (Defs.’ Resp. to Pl.’s Add’l Facts ¶ 22.)
- 3 -
didn’t
do
However,
Abarca eventually admitted that when he was “rubbing [his minor
daughter’s stomach], his hand slipped underneath her pants and
. . . he
touched
Statement ¶ 43.)
her
vagina.”
(Pl.’s
Resp.
to
Defs.’
Fact
He said he did so because he was curious to
see if she had pubic hair. (Id. ¶ 44.)
Abarca admits saying
this to Detective Franchini but maintains it is simply not true.
(Pl.’s Add’l Facts ¶ 13.)
touching
his
frustrated,
He only admitted to inappropriately
daughter,
and
wanted
he
to
says,
go
because
home
—
he
was
something
tired,
Detective
Franchini allegedly told him he could not do until he admitted
to touching his daughter in a sexual manner.
24.)
(Id. ¶¶ 20, 23-
Defendants deny that Detective Franchini ever promised
Abarca that he would be “let go” if he confessed. (Defs.’ Resp.
to Pl.’s Add’l Facts ¶ 24.)
After Abarca confessed, Assistant States Attorney (“ASA”)
Andrea Kerten came in to speak with him.
ASA Kerten asked
Abarca to sign a written statement reaffirming his confession;
he agreed.
denied
(Pl.’s Resp. to Defs.’ Fact Statement ¶ 60 (facts
without
any
record
See, Local R. 56.1).)
citation
will
be
deemed
admitted.
Before signing the statement, ASA Kerten
asked Abarca to read the first paragraph of the statement out
loud
to
ensure
he
understood
English
and
was
capable
reviewing of the rest of his statement. (Id. ¶ 61.)
- 4 -
of
After he
read it back without any difficulty, ASA Kerten read the rest of
the statement, telling him that he could stop her to make any
corrections.
(Id.
¶
63.)
The
statement
includes
affirming that he can read and write in English.
a
sentence
(Defs.’ Resp.
to Pl.’s Add’l Facts ¶ 9; Pl.’s Resp. to Defs.’ Fact Statement
¶ 62.)
After Abarca signed the statement, he asked detective
Franchini:
“Can I go now?” (Id. ¶ 64; Pl.’s Add’l Facts ¶ 33.)
Abarca claims he never understood what he was signing.
(Pl.’s
Add’l Facts ¶¶ 26-27, 32.)
Various facts of the interrogation are undisputed.
Abarca
knew Detective Franchini was a police officer and that he was
being asked questions about a possible crime.
Defs.’ Fact Statement ¶ 41.)
(Pl.’s Resp. to
Abarca never indicated that he
wanted to speak in Spanish or that he did not understand what
Detective
Franchini
Franchini
never
Additionally,
was
saying.
physically
Detective
(Id.
¶¶
threatened
Franchini
39,
46.)
Abarca.
testified
that
Detective
(Id.
¶
Abarca
49.)
never
made any complaints of discomfort or fatigue and never requested
medical
aid;
Abarca
is
unable
contrary. (Id. ¶¶ 45, 66.)
to
remember
anything
to
the
When ASA Kerten spoke to Abarca
outside the presence of the detectives to discuss his treatment,
he said he was treated fine and had no concerns. (Id. ¶ 65.)
- 5 -
He
also said he was not promised anything or threatened in order to
make his statements to Detective Franchini. (Id. ¶ 79.)
Abarca
was
subsequently
charged
with
Aggravated
Criminal
Sexual Abuse in violation of 720 ILCS 5/11-1.60(b). (Id. ¶ 67.)
After hearing testimony during motion to suppress proceedings,
the criminal court judge denied Abarca’s motion, finding his
confession voluntary and his waiver valid. (Id. ¶ 70.)
At his criminal trial, Abarca testified that he did not
sexually abuse his daughter:
“Members of the Jury, with all my
respect, never in my life, I have never touched any of my kids.
I
have
seven
children,
daughter’s mother].
daughter].”
and
I
have
three
children
with
[my
Never in my life, I have never touched [my
(Defs.’ Resp. to Pl.’s Add’l Facts ¶ 34.)
found Abarca not guilty on February 20, 2015.
The jury
(Pl.’s Resp. to
Defs.’ Fact Statement ¶ 80.)
On February 22, 2016, Abarca filed a § 1983 action against
the
City
Hanrahan
violation
rights,
generally
of
Chicago,
pursuing
of
and
his
theories
Fifth
respondeat
Compl.,
ASA
ECF
Kerten,
based
on
Amendment,
superior
No.
1.)
Detectives
malicious
due
and
The
Franchini
process,
prosecution,
and
indemnification.
parties
and
agreed
Miranda
(See,
to
the
dismissal of ASA Kerten and Detective Hanrahan leaving only two
Defendants — the City of Chicago and Detective Franchini — and
- 6 -
three
counts
Amendment,
superior
remaining.
due
and
process,
Those
counts
Miranda
indemnification),
prosecution).
are:
claim),
and
Count
Count
Count
I
(Fifth
IV
(respondeat
V
(malicious
(Id.; Agreed Order of Dismissal, ECF No. 25.)
The Defendants now move for summary judgment on Abarca’s claims.
II.
Summary
judgment
is
ANALYSIS
appropriate
when
the
admissible
evidence reveals no genuine issue of any material fact and that
the movant is entitled to judgment as a matter of law.
CIV. P. 56(a).
FED. R.
The Court construes all facts and reasonable
inferences in the light most favorable to the non-moving party:
here, Abarca.
Bentrud v. Bowman, Heintz, Boscia & Vician, P.C.,
794 F.3d 871, 874 (7th Cir. 2015) (citation omitted).
A.
1.
CONSTITUTIONAL CLAIMS
Waiver of Miranda Rights
Abarca argues that his limited English skills prevented him
from
making
rights.
a
knowing
and
voluntary
waiver
of
his
Miranda
Defendants contend that this Court cannot reach this
question because it has already been decided by the criminal
court.
Thus, as an initial matter, the Court must first decide
whether to address the merits.
- 7 -
a.
During
the
Collateral Estoppel
criminal
case,
the
criminal
court
held
a
suppression hearing to determine whether Abarca knowingly and
voluntarily waived his Miranda rights during his interrogation.
Defendants rely on Hernandez v. Sheahan, 711 F.3d 816, 818
(7th Cir. 2013), to argue that Abarca is collaterally estopped
from relitigating whether he knowingly and voluntarily waived
his Miranda rights because the criminal court already ruled he
had.
In Hernandez, the Seventh Circuit held that the district
court
was
barred
from
considering
whether
the
defendant’s
statement was voluntary where the state court had already ruled
that it was. Id.
pertinent
one
Yet the Hernandez rule has exceptions:
here
being
that
a
defendant
will
not
the
be
collaterally estopped if he or she had no opportunity to appeal
the first ruling.
Sornberger v. City of Knoxville, Ill., 434
F.3d 1006, 1020-23 (7th Cir. 2006).
Circuit
reversed
a
district
In Sornberger, the Seventh
court’s
ruling
that
plaintiff’s
earlier, unsuccessful suppression motion collaterally estopped
her from relitigating Miranda-waiver in a later § 1983 action.
Id.
The court reasoned that limits on collateral estoppel arise
from problems of appealability rather than the nature of the
subsequent proceeding and thus apply to all subsequent actions —
both civil and criminal:
- 8 -
[A] defendant, unlike the prosecution, is not allowed
an immediate appeal from an adverse ruling upon a
motion to suppress.
He cannot review that ruling
until after he has been convicted and sentenced. And
for a variety of reasons he might not wish to appeal,
or as in the case of an acquittal at the first trial,
he might not be able to do so.
Id. at 1022 (quoting People v. Hopkins, 284 N.E.2d 283, 284
(Ill.
1972)).
As
such,
the
Seventh
Circuit
ruled
that
the
Supreme Court of Illinois would extend the collateral estoppel
exception to a later § 1983 action where the plaintiff had no
opportunity to appeal in the first instance. Id.
case here.
(7th
Cir.
That is the
Although Hernandez v. Sheahan, 711 F.3d 816, 818
2013),
was
decided
after
Sornberger,
it
does
not
question or overrule the exceptions delineated in Sornberger.
Thus, Sornberger governs this case.
Abarca was acquitted in his
criminal trial, meaning that he had no opportunity to appeal the
state
court’s
ruling
on
his
suppression
motion.
Hence,
the
state court’s ruling does not bar this court from considering
the question of whether his confession complied with Miranda.
b.
Merits of Abarca’s Alleged Waiver
Defendants argue that they are entitled to summary judgment
because
rights
Abarca
prior
contends
doing so.
that
knowingly
to
his
giving
and
an
limited
voluntarily
incriminating
English
skills
waived
his
statement.
prevented
Miranda
Abarca
him
from
“A waiver of Miranda warnings must be both knowing
- 9 -
and voluntary.”
United States v. Tellez, 586 F. App’x 242, 244
(7th Cir. 2014) (citations omitted).
“Generally, the courts will hold that a defendant’s waiver
is knowing if he understands that he can refuse to talk to the
people
asking
him
questions
or
stop
the
questioning
once
it
begins; that the people asking him questions are not his friends
but are police or law enforcement personnel who are trying to
show he is guilty of a crime; that he can ask for and get a
lawyer who will help him; and that he does not have to pay for
that lawyer.”
Collins v. Gaetz, 612 F.3d 574, 588 (7th Cir.
2010) (citations omitted).
“It is only when the evidence in the
case shows that the defendant could not comprehend even the most
basic concepts underlying the Miranda warnings that the courts
have found an unintelligent waiver.
One example is a defendant
whose command of English is so poor that the police might as
well have been speaking gibberish.”
v.
Alarcon,
(defendant
95
Fed.
understood
Appx.
only
954,
“bits
Id. (citing United States
955-57
and
(10th
pieces”
of
Cir.
2004)
English
and
often pretended to understand English out of embarrassment and a
desire to cooperate); United States v. Garibay, 143 F.3d 534,
537-38 (9th Cir. 1998) (no evidence that defendant spoke enough
English to understand warnings, and several witnesses testified
that he spoke only a few words of English)).
- 10 -
“If it is apparent
to police that a defendant cannot speak English, attempting to
extract a waiver of his rights under Miranda is obviously an
abusive police practice that would render a waiver involuntary.”
United States v. Sanchez, No. 12-20008, 2013 WL 4806992, at *5
(C.D. Ill. Sept. 9, 2013) (citation omitted).
Importantly, Detective Franchini gave Abarca the choice to
speak in English or Spanish during the interrogation:
chose English.
Abarca
Abarca cannot bury his head in the sand by
choosing to speak in a language that he does not understand and
then
claim
a
constitutional
violation
because
he
didn’t
understand the Miranda waiver recited to him in the language
that he expressly chose.
Further, even if Abarca did not waive his constitutional
right
by
expressly
would be the same.
choosing
responses
and
to
speak
in
English,
the
result
Courts have concluded that English-spoken
English
skills
poorer
sufficient to render a knowing waiver.
than
Abarca’s
were
See, e.g., Perri v.
Dir., Dep’t of Corrs. of Ill., 817 F.2d 448, 452-53 (7th Cir.
1987) (concluding that native Italian knowingly waived Miranda
rights,
even
though
Italian
dialect,
he
because
received
he
warnings
responded
in
in
an
English
unfamiliar
that
he
understood them); see also, United States v. Guay, 108 F.3d 545,
549–50
(4th
Cir.
1997)
(holding
- 11 -
French-speaking
arrestee
knowingly waived rights where he told an officer that he could
understand English if spoken slowly); Campaneria v. Reid, 891
F.2d
1014,
1020
(2d
Cir.
1989)
(holding
that
arrestee
made
knowing waiver despite broken English and occasional lapses into
Spanish).
In United States v. Tellez, 586 F. App’x 242, 244-45 (7th
Cir. 2014), the Seventh Circuit affirmed the district court’s
finding that the defendant understood enough English to waive
knowingly and intelligently his Miranda rights.
four facts relevant to that determination:
defendant
in
Spanish
if
he
understood
The Court found
the agent asked the
English,
to
which
the
defendant replied affirmatively; the defendant continually spoke
and
answered
questions
in
English
rather
than
Spanish;
the
defendant had lived in the United States for over 15 years; and
the defendant gave detailed answers in English to open-ended
questions in his interactions with officials. Id.
facts are true in Abarca’s case as well.
All of these
Accord, United States
v. Sanchez, No. 12-20008, 2013 WL 4806992, at *5 (C.D. Ill.
Sept. 9, 2013) (finding Miranda waiver based on similar facts,
including that defendant’s answers to investigators’ questions
demonstrated understanding).
Notably, the facts before this Court are even stronger than
those
before
Tellez
and
Sanchez.
- 12 -
In
those
cases,
the
investigators asked if the defendants understood English and the
defendants’
affirmative
responses
questions demonstrated they did.
and
subsequent
answers
to
See, Tellez, 586 F. App’x at
244-45; Sanchez, 2013 WL 4806992, at *5.
That was sufficient.
Id.
asked
Here,
Detective
Franchini
not
only
Abarca
if
he
understood English, she gave him the option to speak in either
English or Spanish.
Fact
Statement
¶
He chose English.
31-32.)
Further,
(Pl.’s Resp. to Defs.’
Detective
Franchini
told
Abarca that if at any point he did not understand something he
should let her know so she could repeat it in Spanish. (Id.
¶ 33.)
in
At no point did Abarca indicate that he wanted to speak
Spanish
Franchini
or
was
that
saying.
he
did
(Id.
not
understand
¶ 39.)
Just
as
what
in
Detective
Sanchez,
the
conversation between Abarca and Detective Franchini demonstrated
that Abarca understood Detective Franchini’s questions.
See,
2013 WL 4806992, at *5.
And if that were not sufficient, ASA Kerten required Abarca
to read the first paragraph of his statement out loud to her in
English to confirm that he could read and understand English.
(Pl.’s
Resp.
to
Defs.’
Fact
Statement
¶
61.)
There
is
no
dispute that he was able to do so, which indicates that Abarca’s
English skills were not so low that Detective Franchini “might
as well have been speaking gibberish.”
- 13 -
Collins, 612 F.3d at 588
(citations omitted).
Abarca also signed a statement attesting
that he can read and write in English.
(Pl.’s Resp. to Defs.’
Fact Statement ¶ 62.)
These
facts
are
consistent
with
Abarca’s
background.
Abarca has lived in the United States for over 25 years and when
he first arrived, he attended two months of English courses.
(Id. ¶¶ 6-7.)
Still, Abarca contends that although he can read,
he barely understands English.
Facts ¶ 9.)
(Defs.’ Resp. to Pl.’s Add’l
However, this assertion alone is not enough to
create a material fact issue.
As Abarca admits, at no point
during his interactions with Detective Franchini or ASA Kerten
did he indicate that he did not understand, nor did any of his
answers to their questions demonstrate confusion.
to Defs.’ Fact Statement ¶ 39.)
(Pl.’s Resp.
Following Tellez and Sanchez,
the Court finds that Abarca knowingly and intelligently waived
his
Miranda
rights
after
hearing
his
rights
read
to
him
in
English and subsequently waiving them.
2.
Administering
proper
Coercion
Miranda
warnings
does
not
end
the
Fifth Amendment inquiry.
Aleman v. Vill. of Hanover Park, 662
F.3d
2011).
897,
906
(7th
Cir.
“Miranda
has
been
said
to
distract judges from the propriety of the interrogation that
follows a waiver of Miranda rights.” Id. (citation omitted).
- 14 -
A
confession may still be the product of coercion, even if Miranda
warnings are given; such is the case where physical abuse occurs
after the defendant has already waived rights under Miranda.
See, Dassey v. Dittmann, 877 F.3d 297, 303 (7th Cir. 2017) (en
banc) (“[P]rohibitions on physical coercion are absolute.”).
“A confession is voluntary if ‘it is the product of a
rational intellect and free will and not the result of physical
abuse,
psychological
intimidation,
or
deceptive
interrogation
tactics that have overcome the defendant’s free will.’”
v.
Hepp,
States
871
v.
F.3d
Vallar,
513,
635
527
F.3d
(7th
271,
Cir.
282
2017)
(7th
Hicks
(quoting
Cir.
United
2011)).
To
determine whether a confession is voluntary, courts analyze the
totality of the surrounding circumstances from the perspective
of a reasonable person in the suspect’s position, examining both
the
characteristics
of
the
accused
and
interrogation. Id. (citations omitted).
consider
“the
defendant’s
age,
education,
the
details
of
the
In doing so, courts
intelligence
level,
and mental state; the length of the defendant’s detention; the
nature
of
the
constitutional
interrogations;
rights;
and
the
the
inclusion
use
of
of
physical
advice
about
punishment,
including deprivation of food or sleep.” Id. (quoting United
States v. Sturdivant, 796 F.3d 690, 695 (7th Cir. 2015)).
- 15 -
“Police
coercion
is
a
prerequisite
to
finding
any
confession to be involuntary. Physical abuse may be the ultimate
coercion,
but
the
Supreme
Court
has
long
potency of psychological coercion as well.”
acknowledged
the
Hurt v. Wise, 880
F.3d 831, 845 (7th Cir. 2018) (citations omitted).
“Whether
police have employed sufficiently coercive tactics to render a
confession involuntary is a legal question.”
Id. at 846 (citing
United States v. D.F., 115 F.3d 413, 417-19 (7th Cir. 1997)).
Defendants argue that they are entitled to summary judgment
because Abarca’s confession was not the product of coercion as a
matter of law.
Abarca is an adult without any mental handicap.
He knew Franchini was a police officer and that he was being
asked questions about a possible crime. (Pl.’s Resp. to Defs.’
Fact Statement ¶ 41.)
Franchini never used physical violence or
threats of violence against Abarca or his family and there is no
evidence
that
Abarca
made
any
complaints
of
discomfort
fatigue or that he requested medical aid. (Id. ¶ 45.)
or
In total,
he was at the police station for one full day, only an hour-long
portion of which involved the interrogation.
30.)
As
discussed
in
depth
above,
his
(See, id. ¶ 28-
English
skills
sufficient to understand what was being said to him.
were
Abarca
argues he did not eat all day, but never asserts he was deprived
of anything; in fact, he admits that he was allowed food, drink,
- 16 -
or
restroom
breaks.
(See
generally,
Pl.’s
Add’l
Facts,
ECF
No. 40; see also, Pl.’s Resp. to Defs.’ Fact Statement ¶¶ 50,
66.)
These
Abarca’s
circumstances
“will
[was]
do
not
overborne
come
and
determination critically impaired.”
close
his
to
establishing
capacity
for
self-
Culombe v. Connecticut, 367
U.S. 568, 602 (1961) (citation omitted).
However, the analysis
involves the totality of the circumstances and one crucial fact
remains.
The most critical (and disputed) fact is Abarca’s assertion
that Franchini told Abarca that he would not be “let go” until
he confessed.
precludes
It is Abarca’s position that this factual dispute
summary
judgment.
Abarca
testified
that
he
“confessed” to Detective Franchini only because Franchini told
him that she was not going to let him go until he told her why
he had touched his daughter. (Pl.’s Add’l Facts ¶¶ 20, 24).
Indeed, immediately after Abarca signed his written statement,
he asked Detective Franchini:
“Can I go now?” (Id. ¶ 33).
Abarca asserts that it was this coercive statement that
caused him to confess falsely to a crime he did not commit. (Id.
¶ 13.)
There is a factual dispute as to whether Franchini ever
made statements to that effect during the interrogation:
[Abarca’s Trial Testimony]
Q:
And did [Detective Franchini] say anything
else to you?
- 17 -
A:
Yes. Before that she told me that she was
not going to let me go until I told her why
I had touched by daughter.
[. . .]
Q:
A:
She told you what?
She said that she wasn’t going to let me go
until I basically told her that I had
touched her.
[. . .]
Q:
A:
Q:
A:
What happened next?
I do not know what a statement is. This is
the first time that I had been interrogated
by police, and I felt like whatever I did
after that I was going to do it so I could
go home.
Did you think you had done anything wrong?
No, on the contrary. I had already told her
what she wanted to hear. I just wanted to go
home.
[. . .]
Q:
A:
Now, you said that you told Detective
Franchini that you touched your daughter’s
vagina to please her, correct, to please
Detective Franchini, correct?
Yes, she had already told me that she was
not going to let me go until I told her.
[. . .]
Q:
A:
And you told her that in order for her to
allow you to leave, correct?
Yes, because I was tired of being locked up
for 15 hours, and she was asking dirty
questions.
[Detective Franchini’s Trial Testimony]
Q:
A:
He initially denied these allegations again,
right?
He initially denied, yes.
- 18 -
Q:
A:
And
you
told
him
that
during
this
interrogation
that
because
you
didn’t
believe him, you weren’t going to leave?
That’s not true.
Trial Testimony, No. 13 CR 12509, Circuit Court of Cook County,
Criminal
Division,
Feb.
19,
2015.
Thus,
a
factual
dispute
exists as to whether Detective Franchini told Abarca that he
would not be released unless he admitted touching his daughter
inappropriately.
material.
The
next
step
is
to
determine
if
it
is
If, taking all the factual inferences in favor of the
non-movant — here, Abarca — still allows summary judgment as a
matter of law, this case can be resolved on the papers.
If not,
the
factual
summary
judgment
motion
must
be
denied
and
this
issue resolved at hearing.
“Courts have been reluctant to deem trickery by the police
a basis for excluding a confession on the ground that the tricks
made the confession coerced and thus involuntary.”
Vill.
of
Hanover
Park,
(collecting cases).
pressure
and
662
F.3d
897,
906
(7th
Aleman v.
Cir.
2011)
“Although ‘the law permits the police to
cajole,
conceal
material
facts,
and
actively
mislead,’ it draws the line at outright fraud, as where police
extract a confession in exchange for a false promise to set the
defendant free.”
Hadley v. Williams, 368 F.3d 747, 749 (7th
Cir. 2004) (quoting United States v. Rutledge, 900 F.2d 1127,
1131 (7th Cir. 1990)).
Such promises of immunity are sufficient
- 19 -
to render a confession involuntary.
378
U.S.
478,
483-84
(1964)
See, Escobedo v. Illinois,
(reversing
conviction
where
defendant was promised that, if he confessed, he could go home
and would be granted immunity).
Yet although “[f]alse promises
may be evidence of involuntariness, at least when paired with
more coercive practices or especially vulnerable defendants as
part of the totality of the circumstances,” a mere promise to be
released from the police station without a guarantee of immunity
does not necessarily rise to coercion.
Dassey v. Dittmann, 877
F.3d 297, 304 (7th Cir. 2017) (en banc) (“False promises to a
suspect
have
similarly
not
been
seen
as
per
se
coercion.”
(citations omitted)).
Recently, in Dassey v. Dittmann, the Seventh Circuit en
banc held that Wisconsin’s appellate court reasonably applied
United States Supreme Court precedent where it found defendant’s
confession was voluntary. Id. at 316-18.
Notably, the defendant
in Dassey was offered a similar promise as the case at bar:
“[Defendant] was reassured across two days of interviews that
being
‘honest’
Dittmann,
877
dissenting).
would
F.3d
allow
297,
him
330
to
(7th
go
Cir.
‘free.’”
2017)
Dassey
(Wood,
v.
J.,
The facts of Dassey are much more extreme than the
case at bar — the defendant was an intellectually impaired child
with
no
parent
present
and
subject
- 20 -
to
an
interrogation
that
spanned multiple hours.
Yet still, the court upheld the state
court’s finding that the confession was not coerced. Id. at 337.
Granted,
different
the
from
procedural
this
case.
posture
There,
in
the
Dassey
case
was
is
quite
in
habeas
proceedings and the stringent standard from the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254, applied.
No such standard is at play here. However,
this
recent
binding
with
other
cases
precedent
outside
offers
this
guidance
Circuit
in
in
a
conjunction
more
similar
procedural posture.
Two district court cases with remarkably similar facts have
both found the confessions at issue to be voluntary.
In United
States v. Dunkelberger, the district court held a confession
voluntary where the investigator told the defendant that she
should sign the inculpatory statement so that she could go home
to supper, and that once she signed it, it would all be over.
The district court reasoned that, even assuming the facts as the
defendant put forward, “[a] comment about going home to supper
is not sufficient to overpower the will of a person who is
accused
of
conviction.”
embezzlement
and
facing
a
possible
felony
United States v. Dunkelberger, No. CR. 10-40064-
01, 2010 WL 4868187, at *6 (D.S.D. Nov. 23, 2010).
Similarly,
in United States v. Lee, the district court held the defendant’s
- 21 -
confession voluntary where the investigator told the defendant
that she had to write the inculpatory statement in order to go
home.
United States v. Lee, No. 08-20309, 2011 WL 6307878, at
*3 (E.D. Mich. Dec. 15, 2011).
The Court concluded that the
investigator’s conduct was not objectively coercive and that the
evidence did not show the defendant’s will was overborne, noting
that
the
written
statement
repeated
some
of
her
earlier
admissions, undermining any claim that her statement was induced
by a promise of release. Id.
Multiple cases with a similar
statement by investigators have found the subsequent confession
voluntary.
See, e.g., United States v. Ferrara, 377 F.2d 16 (2d
Cir. 1967) (telling defendant that if he cooperated with the
government,
he
would
be
released
on
a
reduced
bail);
United
States v. Robinson, 698 F.2d 448, 455 (D.C. Cir. 1983) (telling
defendant that if he cooperated, his arrest would be delayed so
he could straighten out his personal affairs); United States v.
Bazzelle, No. 14 CR 50067-2, 2015 U.S. Dist. LEXIS 131886, at
*19 (N.D. Ill. Sep. 30, 2015) (telling defendant that he was
going to be charged but that if he agreed to cooperate, the
charges
against
him
would
be
delayed
so
he
could
order
his
affairs).
Even if the facts are as Abarca contends, and Detective
Franchini
said
he
could
only
go
- 22 -
home
once
he
admitted
to
inappropriately
touching
his
daughter,
those
circumstances
not even reach the level of those in Lee or Dunkelberger.
WL
6307878,
at
*3
(finding
4868187, at *6 (same).
confession
voluntary);
do
2011
2010
WL
These cases stand for the proposition
that this type of statement, without more, is insufficient to
show
the
confession
is
coerced.
“[V]ery
few
incriminating
statements, custodial or otherwise, are held to be involuntary,
though few are the product of a choice that the interrogators
left
completely
free.”
United
1127, 1129 (7th Cir. 1990).
a
suspect’s
ignorance,
his
States
v.
Rutledge,
900
F.2d
“The police are allowed to play on
anxieties,
his
fears,
and
his
uncertainties; they just are not allowed to magnify those fears,
uncertainties, and so forth to the point where rational decision
becomes impossible.” Id. at 1130.
“retained
the
presence
of
mind
As long as the defendant
to
evaluate
the
options
believed were available to him,” there is no coercion.
he
United
States v. Lord, No. 93 CR 626, 1994 U.S. Dist. LEXIS 6069, at
*11
(N.D.
Ill.
May
6,
1994).
“Only
a
threat
or
promise
sufficient to overwhelm the defendant’s ability to make rational
choices would be sufficient to cause a confession to be deemed
involuntary.” Id.
Abarca relies on the Supreme Court’s language in Brady v.
United States interpreting Bram:
- 23 -
Bram dealt with a confession given by a defendant in
custody, alone and unrepresented by counsel.
In such
circumstances, even a mild promise of leniency was
deemed sufficient to bar the confession, not because
the promise was an illegal act as such, but because
defendants at such times are too sensitive to
inducement and the possible impact on them too great
to ignore and too difficult to assess.
Brady
v.
United
added).
Since
States,
Brady
interpreted narrowly:
397
U.S.
742,
however,
this
754
(1970)
statement
(emphasis
has
been
Bram did not establish a per se rule, but
merely affirmed that promises of leniency should weigh heavily
in the totality of the circumstances analysis.
See, Cole v.
Lane, 830 F.2d 104, 109 (7th Cir. 1987) (rejecting per se rule
that
a
promise
of
leniency
required
a
finding
of
involuntariness).
Abarca also cites to Lall and Streetman, but to no avail.
United States v. Lall, 607 F.3d 1277, 1283-84 (11th Cir. 2010),
is not analogous.
In Lall, the Court held that the defendant’s
waiver of his Miranda rights was ineffective because after his
Miranda
warnings
were
given,
the
investigator
immediately
contradicted them by promising that the government would not
pursue any charges.
Here, there was no promise of immunity.
Similarly, Streetman v. Lynaugh, 812 F.2d 950, 956 (5th Cir.
1987), is not analogous.
extreme:
authorities
The facts of that case are much more
the defendant alleged that he confessed only after
threatened
him
and
- 24 -
his
family
with
physical
violence, assured him that information provided would not be
used against him, stated that their goal was to get information
to charge other people, and promised that the defendant would be
promptly released. Id.
Although Abarca is correct that “certain
promises, if not kept, are so attractive that they render a
resulting confession involuntary,” the “promise” in this case,
even construed as such, does not rise to the level of coercion
required by the case law. Id. at 957.
This analysis is not to discount the very serious issue at
play
in
this
confessions
case
—
undermine
justice system.
potentially
the
a
false
credibility
and
confession.
fairness
False
of
our
See, Dassey v. Dittmann, 877 F.3d 297, 332-33
(7th Cir. 2017) (Wood, J., dissenting); cf. Miranda v. Arizona,
384 U.S. 436, 455 n.24 (1966).
Abarca’s acquittal lends support
for his statement that he did not actually commit the act he
confessed
issued
to.
contrary
Granted,
the
directions
United
on
States
whether
the
Supreme
Court
reliability
has
of
a
confession should be considered in the analysis of coercion at
all, see, Dassey v. Dittmann, 877 F.3d 297, 317 (7th Cir. 2017)
(collecting
cases),
but
regardless,
the
fact
that
certain
interrogation tactics may (and do) lead to false confessions was
emphasized by the three judge dissent in Dassey:
In a world where we believed that “innocent people do
not confess to crimes they did not commit,” we were
- 25 -
willing to tolerate a significant amount of deception
by the police. Under this rubric, the thinking went,
the innocent person (or at least the vast majority of
healthy,
sane,
innocent
adults
of
average
intelligence) would not confess even in response to
deception and cajoling. And so our case law developed
in a factual framework in which we presumed that the
trickery and deceit used by police officers would have
little effect on the innocent.
[. . .]
But what do we do when the facts that supported our
‘modern constitutional standards’ come from a fiftyyear-old understanding of human behavior, and when
what we once thought we knew about the psychology of
confessions we now know not to be true? Our long-held
idea that innocent people do not confess to crimes has
been upended by advances in DNA profiling. We know now
that in approximately 25% of homicide cases in which
convicted
persons
have
later
been
unequivocally
exonerated by DNA evidence, the suspect falsely
confessed to committing the crime.
Dassey v. Dittmann, 877 F.3d 297, 332-33 (7th Cir. 2017) (Wood,
J., dissenting).
new
While the dissent in Dassey argues that this
understanding
analysis,
the
mandates
majority
a
more
concluded
stringent
that
Fifth
without
Amendment
controlling
Supreme Court precedent stating otherwise, it would not mandate
new
constitutional
restraints.
Id.
at
318.
Although
acknowledging the seriousness of the potential false confession
here, this Court is compelled by Dassey and the analogous case
law discussed above to find that, even taking all factual issues
in Abarca’s favor, he cannot establish coercion as a matter of
- 26 -
law.
Accordingly, the Defendants’ Motion for Summary Judgment
is granted.
B.
Remaining Summary Judgment Relief
Because the Defendants have succeeded on their Motion for
Summary Judgment as to the underlying constitutional violation,
Defendant
Franchini’s
Motion
for
Summary
Judgment
on
the
qualified immunity claim and Defendant City of Chicago’s Motion
for
Summary
granted.
Judgment
on
the
respondeat
superior
claim
are
Further, Abarca concedes he has not stated a claim for
malicious
prosecution
and,
as
such,
Defendants’
Motion
for
Motion
for
Summary Judgment is granted as to that claim as well.
III.
For
the
reasons
CONCLUSION
stated
herein,
Defendants’
Summary Judgment [ECF No. 26] is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
3/29/2018
- 27 -
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