February 22, 2019
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division. No.
1:11-cv-02605 - Edmond E. Chang, Judge.
Ripple, Manion, and Brennan, Circuit Judges.
MANION, CIRCUIT JUDGE
Seok and Eunsook Koh, husband and wife, brought a § 1983
suit arising out of the investigation of and the Kohs'
arrests in connection with their son's death. They sued
the Northbrook Police Department, various Northbrook
officers, the Wheeling Police Department, and a Wheeling
officer asserting state and federal claims. The district
court granted in part and denied in part the defendants'
motions for summary judgment. Northbrook Detectives John
Ustich and Mark Graf and Wheeling Officer Sung Phil Kim have
filed interlocutory appeals on the issue of qualified
immunity concerning Mr. Koh's Fifth Amendment coerced
confession claim. Because appellants' arguments are
inseparable from the questions of fact identified by the
district court, we dismiss these appeals for lack of
3:45 a.m., on April 16, 2009, Mr. Koh was awakened by his
wife's screams. Mrs. Koh had just found their 22-year-old
son, Paul, lying down in a pool of blood next to a knife in
the entry way of their home. After calling 911, the couple got
dressed, anticipating going to the hospital after help came
because they thought Paul was still alive. Paramedics and
officers from the Northbrook Police Department (Defendants
Roger Eisen, Matt Johnson, Brian Meents, and Keith Celia,
none of whom are appellants) arrived at the Koh home soon
after. There, they found Mr. Koh with a phone near the front
door of the house and Mrs. Koh crouched over Paul's body.
Paul had been stabbed in the throat and chest and was
declared dead at the scene. Officers initially stated there
was a possibility Paul committed suicide.
wanted to drive to the hospital. Instead, both Mr. and Mrs.
Koh were confined in their front yard and pushed to the
ground, where they sat while officers watched over them. The
Kohs asked to see Paul, get Mr. Koh's
medicine and cell phone, and go to the hospital.
The officers denied those requests.
point, the officers forced the Kohs into a squad car and
drove them to the Northbrook Police Department. (The Kohs
were not asked if they wanted to go there.) Mrs. Koh was
allowed to wash the blood from her hands in a restroom at the
station while officers kept an eye on her. The Kohs were then
given blankets and beverages. They were kept in a conference
room, first together and then later separated. Mr. Koh asked
to make a phone call, but was not allowed to do so. The
police contacted the Kohs' pastor who arrived at the
station around 6 a.m. Other family and friends came to the
station as well, but their requests to see the Kohs were
still at the Koh home, a Northbrook police officer spoke with
dispatch about contacting local law enforcement agencies to
request a Korean translator who could assist with speaking
with the Kohs because of the apparent language
barrier. Responding to the request at the direction
of one of his superiors, Officer Sung Phil Kim of the nearby
Wheeling Police Department went directly to the Northbrook
Police Department. Kim spoke Korean in social settings,
having learned Korean from his parents and at Sunday school
as a child, but otherwise having no formal training in the
Korean language. Kim also had no training as a translator.
was questioned at the Northbrook police station in a two-part
interview that lasted a total of two and a half hours.
Detectives John Ustich and Mark Graf and Kim were present for
both sessions, and they all questioned Mr. Koh during his
interviews. Graf primarily conducted the interview, and
Ustich and Kim each posed questions at different points. Kim
also provided some Korean translations during the interview,
but not to each question. Each interview was video recorded,
though there was discussion between Graf and Mr. Koh before
the recording began and at the end of the first interview
when the tape ran out.
first interview began around 7:30 a.m. Before the video
recording began, Mr. Koh asked Graf for his medication. Graf
responded that someone would bring him his medicine. Also
before the recording commenced, Graf asked Mr. Koh if he had
a lawyer. Mr. Koh told Graf that he had an attorney, but he
could not remember the attorney's phone number. Mr. Koh
also asked to see his pastor, his daughter, and his friend
from church. According to Mr. Koh, Graf "told me that
the only person I could see was a lawyer. And since I
didn't have any phone numbers, so that was the
administered Miranda warnings in English. While Graf
was reading Mr. Koh the Miranda warnings, Kim
provided some translation assistance. Kim, however, did not
translate after Graf stated, "Anything you say can and
[sic] be used against you in a court of law,
okay?" Mr. Koh gently nodded his head while Graf
was reading the warnings. Once finished reading the warnings,
Graf passed Mr. Koh a printed waiver form listing the
Miranda rights in English asking him to sign and
date the form. It was then that Mr. Koh asked, "Can you
ask (inaudible) this one transfer this
one?" The officers understood this as a request
for Kim to translate, and Kim proceeded to speak to Mr. Koh
in Korean. The parties dispute, though, the accuracy of
Kim's translation and whether Mr. Koh understood it.
According to Mr. Koh, Kim did not tell him that his
statements could be used against him or that he had a right
to an attorney if he could not afford one. Mr. Koh also
asserts that Kim advised that he did not need an attorney.
After Kim completed his translation, Mr. Koh began to date
and time the form stating, "This one happens [early
morning]." It was then that Graf instructed Mr. Koh
to write "[t]he date and time right
now." As the district court described it in its
summary judgment opinion, "Mr. Koh ultimately executed
an English-language Miranda waiver form at
Graf's and Kim's directions." Koh v. Graf,
307 F.Supp.3d 827, 837 (N.D. 111. 2018) (emphasis added).
Mr. Koh signed the waiver form, Graf offered Mr. Koh
beverages and food, but Mr. Koh only requested wa- ter. Graf
began asking questions in English with little intervention by
or assistance from Kim. Mr. Koh answered some questions and
communicated in basic English, though some of his responses
to Graf's questions were confusing or non-responsive. For
instance, at the beginning of the interview when Graf asked
Mr. Koh, "Why don't you tell us briefly about your
son and what he does, his friends, what type of person he
was," Mr. Koh responded by explaining what he did the
day before. Throughout the first interview, Mr. Koh
repeatedly denied any involvement in Paul's death,
including when Graf asked him if he had an argument with
Paul. During that first session, Graf asked Mr. Koh about
Paul's depression and marijuana use. This first interview
lasted about 55 minutes.
the first interview, Ustich and Graf thought Mr. Koh was
being evasive, and they found his denials of any involvement
in Paul's death unbelievable. Ustich and Graf then met
with their superiors and members of the team investigating
Paul's death. Kim did not participate in that meeting. At
the meeting, Ustich and Graf learned about evidence obtained
up to that point in the investigation. There was evidence
suggesting there was a struggle (e.g., there was a small
metal cross and broken chain discovered in blood on the
floor). There was also evidence of a cleanup in the master
bedroom, which contradicted Mrs. Koh's statement to
police that neither she nor her husband cleaned up in the
bathroom after finding Paul's body. Ustich and Graf also
learned that while Mr. Koh had told them that he and his wife
had turned Paul's body over, Mrs. Koh told police that
she had not moved Paul's body. Also, a neighbor had heard
a scream, which prompted skepticism by Graf that Mr. Koh, who
had told Graf that he was a light sleeper, could have slept
through Paul's death.
and Graf also learned that Mr. Koh and Paul's
relationship was marked by tension. Northbrook police
officers had previously seen Paul walking in the Kohs'
neighborhood late at night because he had gotten into a fight
with Mr. Koh. Additionally, Paul's youth pastor told
officers that the Kohs had a family agreement with Paul,
which included no tolerance for drugs and allowed the Kohs to
randomly test Paul for drugs. And there was also evidence
that Paul had been smoking marijuana the night before he
died. The forensic team told Ustich and Graf that it believed
Paul's death was a homicide because, in its estimation,
his injuries could not have been self-inflicted. Graf's
and Ustich's superior instructed them to press Mr. Koh
and Graf returned to the conference room along with Kim to
continue interviewing Mr. Koh around 11:30 a.m. Graf once
again offered Mr. Koh food, coffee, juice, and water. Mr. Koh
responded, "Yeah, what I need is I'll let you
know."Graf also reminded Mr. Koh "of the
rights that we read you before" and asked if he
"still understood these rights and [was] willing to talk
with us?" Mr. Koh responded,
had done throughout the entire first interview, Graf sat
across the conference room table from Mr. Koh. Ustich sat on
the same side as Graf and interjected with questions
occasionally. Kim sat on the same side of the table as Mr.
Koh to his left. Graf's questioning in this second
interview was more aggressive in both tone, volume, and
tempo. He focused on inconsistencies between Mr. Koh's
first interview and what Graf claimed had been learned
through the investigation (some of the inconsistencies were
real and some were created by Graf). At one point, Graf
walked around the conference room table and sat next to Mr.
Koh, stating, "I'm gonna move over here because I
don't know if you can understand me, okay.
Okay." Mr. Koh turned and looked toward Kim,
and Graf responded, "I just want to talk to
you." At that point, Mr. Koh was on the same
side of the conference room table between Graf and Kim,
facing toward Graf.
Graf continued questioning Mr. Koh, he repeatedly touched Mr.
Koh's arms and legs. Graf presented the theory that Mr.
Koh was mad that Paul had been out doing drugs and waited for
him to return home. Despite Mr. Koh's repeated denials,
Graf continued to push, telling him, "We can be here for
days and days and days, okay, but we don't want
that." During this second interview, Graf asked
successive questions at a rate that precluded translation by
Kim. Graf repeatedly accused Mr. Koh of lying and presented
storylines about what happened, suggesting that other
information that the police had gathered or would gather
supported those theories. At various points, Mr. Koh was
hunched over and beat his chest and head with his hands.
both interviews, Kim either did partial or mistranslations of
Mr. Koh's statements and Graf's questions, including
providing a partial, but inexact, translation of Graf's
question about whether Mr. Koh had stabbed Paul in
self-defense. Also, at another point during the second
interview, Kim translated literally a Korean idiom, gachi
jooka ("let's die together"), without
explaining that it was an idiom and not to be taken
literally. According to the Kohs, the expression is like the
English phrase, "you're killing me." Also, Kim
sometimes interjected in the interview with questions in both
English and Korean. Kim and Graf asked overlapping questions
at times making it unclear to which question Mr. Koh was
responding. For instance, at a critical point in the second
interview, Graf asked Mr. Koh if he was angry. Before Mr. Koh
responded to Graf's question, Kim asked Mr. Koh in Korean
whether Mr. Koh acted in self-defense. Kim did not translate
Graf's question. Mr. Koh responded, "I think
so," prompting Kim to state, "He said it was in
self-defense." As the district court correctly noted,
though, it was unclear which question Mr. Koh was answering
because the officers posed two, separate questions and Mr.
Koh responded in a way that did not indicate to which
question he was responding. See Koh, 307 F.Supp.3d
three minutes before the second interview ended, Graf stepped
out of the room to talk with another officer who had come to
tell him Mr. Koh's attorney had arrived at the station.
While Mr. Koh's attorney was being escorted back to the
conference room, Graf increased the intensity of the
interview by asking quick, successive, leading questions and
leaving no time for translation. Mr. Koh responded to
Graf's questioning with one or two-word responses that
could be interpreted as agreeing with Graf's self-defense
theory: Mr. Koh had waited up until 1 a.m. for Paul to return
home, was mad that Paul was out smoking marijuana, argued
with Paul upon his return, and stabbed Paul in self-defense.
The interview ended when Mr. Koh's attorney came into the
room a couple minutes before 1 p.m. Sometime after the
interview ended, Mr. Koh was finally given his medication.
was charged with murder in state court. After the trial court
denied his motion to suppress his confession, the case went
to trial where Mr. Koh was acquitted by a jury.Prior to his
acquittal, Mr. Koh spent nearly four years in the Cook County
Kohs then sued several Northbrook police officers, including
Ustich and Graf, Kim, and the Villages of Northbrook and
Wheeling under 42 U.S.C. § 1983. They asserted federal
constitutional claims. The Kohs set forth a Fourth Amendment
claim for their arrests and a Fifth and Fourteenth Amendment
claims for Mr. Koh's confession. They also brought a
failure to intervene claim, a Monell claim against
the Village of Northbrook for their unlawful detention and
coercive interrogation, and a conspiracy claim. Finally, the
Kohs asserted some state law claims, specifically malicious
prosecution, intentional infliction of emotional distress,
loss of consortium, and respondeat superior. The defendants
moved for summary judgment, claiming qualified immunity.
Taking the evidence and reasonable inferences in the light
most favorable to the Kohs, the district court denied the
motion in part and granted the motion in part. Specifically,
the district court denied summary judgment on the Kohs'
Fourth Amendment false arrest claims, but it held that Mr.
Koh's false arrest ended when the officers had probable
cause to arrest him before his second interview based on the
information conveyed during the debriefing. The court also
denied summary judgment on Mr. Koh's Fifth Amendment
coerced confession claim, his conspiracy and failure to
intervene claims (with some limitations), his municipal
liability claim against the Northbrook Police Department for
false arrest, and Mrs. Koh's loss of consortium claim.
The court also allowed the Kohs to proceed on their
respondeat superior and indemnification claims against the
Northbrook and Wheeling Police departments for the surviving
claims. Summary judgment was granted on Mr. Koh's state
law malicious prosecution, Fourteenth Amendment substantive
due process claim, due process evidence-fabrication claim,
and Fourth Amendment claim based on Mr. Koh's pretrial
Graf, and Kim filed separate appeals challenging the district
court's denial of summary judgment on the Kohs' Fifth