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Koh v. Ustich

United States Court of Appeals, Seventh Circuit

August 13, 2019

Hyung Seok Koh, et al., Plaintiffs-Appellees,
John Ustich, et al., Defendants-Appellants.

          Argued 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.

          Before Ripple, Manion, and Brennan, Circuit Judges.


         Hyung 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 jurisdiction.


         Around 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.[1] 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.

         Mr. Koh 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[2] and cell phone, and go to the hospital. The officers denied those requests.

         At some 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 denied.

         While 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.[3] 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.

         Mr. Koh 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[4] 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.

         The 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 end."[5]

         Graf 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?"[6] 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?"[7] 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]."[8] It was then that Graf instructed Mr. Koh to write "[t]he date and time right now."[9] 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).

         After 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.[10] 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.

         After 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.

         Ustich 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 harder.

         Ustich 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."[11]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, "Yes."[12]

         As he 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."[13] Mr. Koh turned and looked toward Kim, and Graf responded, "I just want to talk to you."[14] At that point, Mr. Koh was on the same side of the conference room table between Graf and Kim, facing toward Graf.

         While 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."[15] 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.

         During 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.[16] 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 at 852.

         About 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.

         Mr. Koh 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.[17]Prior to his acquittal, Mr. Koh spent nearly four years in the Cook County Jail.[18]

         The 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 detention.

         Ustich, Graf, and Kim filed separate appeals challenging the district court's denial of summary judgment on the Kohs' Fifth ...

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