Hyung Koh v. Sung Kim , 933 F.3d 836 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1809 & 18-1821
HYUNG SEOK KOH, et al.,
Plaintiffs-Appellees,
v.
JOHN USTICH, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-02605 — Edmond E. Chang, Judge.
____________________
ARGUED FEBRUARY 22, 2019 — DECIDED AUGUST 13, 2019
____________________
Before RIPPLE, MANION, and BRENNAN, Circuit Judges.
MANION, Circuit Judge. Hyung Seok and Eunsook Koh,
husband and wife, brought a § 1983 suit arising out of the in-
vestigation of and the Kohs’ arrests in connection with their
son’s death. They sued the Northbrook Police Department,
various Northbrook officers, the Wheeling Police Depart-
ment, 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
2 Nos. 18-1809 & 18-1821
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.
I.
Around 3:45 a.m., on April 16, 2009, Mr. Koh was awak-
ened 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 entryway 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. Paramed-
ics and officers from the Northbrook Police Department (De-
fendants 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
1 Because this appeal reviews a denial of motions for summary judg-
ment, we take the facts in the light most favorable to the Kohs, the non-
moving parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
2 Mr. Koh took medication for diabetes, high blood pressure, and hy-
perammonemia.
Nos. 18-1809 & 18-1821 3
phone, and go to the hospital. The officers denied those re-
quests.
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 con-
ference 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 bar-
rier. 3 Responding to the request at the direction of one of his
superiors, Officer Sung Phil Kim of the nearby Wheeling Po-
lice Department went directly to the Northbrook Police De-
partment. 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
3 The officer declined using Language Line, a telephonic interpreta-
tion service used by police, and instead requested someone who could be
physically present for the Kohs’ interviews.
4 Nos. 18-1809 & 18-1821
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 inter-
view, 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 medica-
tion. Graf responded that someone would bring him his med-
icine. 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 pro-
vided 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
4 While not one of the responding officers, Ustich came to the Koh
home shortly before 6 a.m. and relayed to Graf the information that he
learned while there prior to the interview.
5 District Ct. Docket Entry 289-1, Pretrial Hr’g Tr. at 15:23–16:1.
6 District Ct. Docket Entry 285-3, Interview Tr. at 2. (In addition to the
three video recordings of Mr. Koh’s interviews (District Ct. Docket Entry
285-1 (Interview Video)), the parties and, in turn, the district court relied
Nos. 18-1809 & 18-1821 5
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 of-
ficers 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 de-
scribed it in its summary judgment opinion, “Mr. Koh ulti-
mately 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. Ill. 2018) (emphasis added).
After Mr. Koh signed the waiver form, Graf offered
Mr. Koh beverages and food, but Mr. Koh only requested wa-
on a transcript of Mr. Koh’s videotaped interviews in support of their
summary judgment motions (District Ct. Docket Entry 285-3 (Interview
Tr.)). The Kohs did not stipulate to the accuracy of the transcript, but
agreed to its use at summary judgment. We rely on the recordings and
transcript as well.)
7 District Ct. Docket Entry 285-1, Interview Video 1 at 1:35, Interview
Tr. at 2.
8 Interview Tr. at 2; Interview Video 1 at 2:21.
9 Interview Tr. at 2; Interview Video 1 at 2:24.
6 Nos. 18-1809 & 18-1821
ter. Graf began asking questions in English with little inter-
vention 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. Dur-
ing that first session, Graf asked Mr. Koh about Paul’s depres-
sion 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 involve-
ment 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 suggest-
ing 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 con-
tradicted 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.
10 Interview Tr. at 3–4.
Nos. 18-1809 & 18-1821 7
Also, a neighbor had heard a scream, which prompted skep-
ticism 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 rela-
tionship 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 toler-
ance 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 in-
structed 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 occa-
sionally. Kim sat on the same side of the table as Mr. Koh to
his left. Graf’s questioning in this second interview was more
11 Interview Tr. at 58.
12 Id. at 59.
8 Nos. 18-1809 & 18-1821
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 re-
peated 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 re-
peatedly 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 the-
ories. 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 mis-
translations of Mr. Koh’s statements and Graf’s questions, in-
cluding providing a partial, but inexact, translation of Graf’s
13 Id. at 103.
14 Id., Interview Video 2 at 45:20–32.
15 Interview Tr. at 117–18.
Nos. 18-1809 & 18-1821 9
question about whether Mr. Koh had stabbed Paul in self-de-
fense. 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 re-
sponding. For instance, at a critical point in the second inter-
view, 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, sepa-
rate questions and Mr. Koh responded in a way that did not
16 According to the Kohs’ language expert’s report, this particular ex-
change was as follows:
Graf: . . . was it in defense? Or was it in . .
Kim: [Korean characters] Was it self-defense?
Graf: that you were anger/angry?
Kim: [Korean characters] Did you do/engage in self-defense?
Koh: I think so yeah maybe it’s a
Graf: Tell me how it happened
Kim: He said it was in defense. He said it was in defense.
Graf: I know you did it.
Koh: I did it?
Graf: You did it. Yes, didn’t you?
Kim: [Korean characters] (I know you) were engaged in self-defense.
District Ct. Docket Entry 308-73 at 5.
10 Nos. 18-1809 & 18-1821
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 inter-
view by asking quick, successive, leading questions and leav-
ing no time for translation. Mr. Koh responded to Graf’s ques-
tioning with one or two-word responses that could be inter-
preted 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, in-
cluding Ustich and Graf, Kim, and the Villages of Northbrook
and Wheeling under 42 U.S.C. § 1983. They asserted federal
17 Among other evidence, Mr. Koh presented evidence at the criminal
trial that Paul had committed suicide.
18 In response to a question from the Court at oral argument, the Kohs’
counsel stated that Mr. Koh was held on a $5 million bond.
Nos. 18-1809 & 18-1821 11
constitutional claims. The Kohs set forth a Fourth Amend-
ment 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 coer-
cive interrogation, and a conspiracy claim. Finally, the Kohs
asserted some state law claims, specifically malicious prose-
cution, intentional infliction of emotional distress, loss of con-
sortium, and respondeat superior. The defendants moved for
summary judgment, claiming qualified immunity. Taking the
evidence and reasonable inferences in the light most favora-
ble 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 limita-
tions), his municipal liability claim against the Northbrook
Police Department for false arrest, and Mrs. Koh’s loss of con-
sortium 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 sur-
viving claims. Summary judgment was granted on Mr. Koh’s
state law malicious prosecution, Fourteenth Amendment sub-
stantive due process claim, due process evidence-fabrication
claim, and Fourth Amendment claim based on Mr. Koh’s pre-
trial detention.
Ustich, Graf, and Kim filed separate appeals challenging
the district court’s denial of summary judgment on the Kohs’
12 Nos. 18-1809 & 18-1821
Fifth Amendment coercion claim on qualified immunity
grounds.
II.
We review a denial of qualified immunity on summary
judgment de novo. Lovett v. Herbert, 907 F.3d 986, 990 (7th Cir.
2018). We are unable to review an appeal from an interlocu-
tory order such as a denial of a motion for summary judg-
ment, but there is an exception—the collateral order doc-
trine—for us to review an order denying a claim of qualified
immunity. Dockery v. Blackburn, 911 F.3d 458, 464 (7th Cir.
2018). Our review, though, is limited to pure legal issues. Id.
at 464–65. Consideration of any factual questions is outside
our jurisdiction. Hurt v. Wise, 880 F.3d 831, 839 (7th Cir. 2018)
overruled on other grounds by Lewis v. City of Chicago, 914 F.3d
472 (7th Cir. 2019). For purposes of appeal, an appellant may
take all facts and inferences in plaintiff’s favor and argue
“those facts fail to show a violation of clearly established law.”
Id. (emphasis in original). “When the district court concludes
that factual disputes prevent the resolution of a qualified im-
munity defense, these conclusions represent factual determi-
nations that cannot be disturbed in a collateral order appeal,”
such as this one. Gant v. Hartman, 924 F.3d 445, 448 (7th Cir.
2019) (internal quotation marks and citation omitted). Our re-
view is further limited in that we may not “make conclusions
about which facts the parties ultimately might be able to es-
tablish at trial, nor may [we] reconsider the district court’s de-
termination that certain genuine issues of fact exist.” Id. (in-
ternal quotation marks and citation omitted). To establish ju-
risdiction, appellants must present purely legal arguments,
but if those arguments “are dependent upon, and inseparable
from, disputed facts,” we do not have jurisdiction to consider
Nos. 18-1809 & 18-1821 13
the appeal. Id. at 448–49 (quoting White v. Gerardot, 509 F.3d
829, 835 (7th Cir. 2007)). Finally, we will “consider[] only the
facts that were knowable to the defendant officers.” White v.
Pauly, 137 S. Ct. 548, 550 (2017).
If we determine we have jurisdiction, we then turn to the
qualified immunity analysis. Once an officer asserts qualified
immunity, a plaintiff can proceed with his case only if he can
show (1) that the “facts, taken in the light most favorable to
[him], make out a violation of a constitutional right,” and (2)
that right was “clearly established at the time of the alleged
violation.” Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir.
2017) (quoting Allin v. City of Springfield, 845 F.3d 858, 862 (7th
Cir. 2017)). We may consider these prongs in any order we
choose. Id. “‘If either inquiry is answered in the negative, the
defendant official’ is protected by qualified immunity.” Reed
v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018) (citations omitted)
(emphasis in original).
The parties assert various arguments. Ustich and Graf ar-
gue that the district court erred in denying their claims for
qualified immunity because there was no clearly established
law to alert them that their conduct at the time of Mr. Koh’s
interrogation was unconstitutional. Alternatively, they argue
that the state trial court’s denial of Mr. Koh’s motion to sup-
press his confession was a superseding, intervening cause that
entitled them to qualified immunity.
Kim also makes the “intervening cause” argument and as-
serts several of his own. First, he argues the facts fail to show
he intended to violate Mr. Koh’s right against self-incrimina-
tion and that Kim’s conduct was the proximate cause of the
violation of Mr. Koh’s Fifth Amendment rights. Second, Kim
claims that there was no clearly established law at the time of
14 Nos. 18-1809 & 18-1821
Mr. Koh’s interview that would have given Kim notice that
his conduct as a language interpreter violated Mr. Koh’s Fifth
Amendment rights. And third, Kim argues that the district
court erred by not considering his claim for qualified immun-
ity separately from Graf’s claim.
A. Ustich and Graf
Turning now to Ustich and Graf’s appeal, they argue they
are entitled to qualified immunity because it was not clearly
established in June 2009 that their conduct during Mr. Koh’s
interrogation was unconstitutional. While on its face this is a
legal argument, we do not have jurisdiction to address it be-
cause the appellants’ legal arguments “depend[] upon and
[are] inseparable from disputed facts.” Gutierrez v. Kermon,
722 F.3d 1003, 1010–11 (7th Cir. 2013). While Ustich and Graf
assert in their reply brief that they have taken all of the district
court’s factual determinations and reasonable inferences in
the light most favorable to Mr. Koh, “we detect a back-door
effort to contest the facts,” namely the nature of Mr. Koh’s
confusion and lack of understanding due to the language bar-
rier, the impact of the lack of medication and sleep, and the
threat Graf leveled against Mr. Koh. Jones v. Clark, 630 F.3d
677, 680 (7th Cir. 2011). “The voluntariness of a confession de-
pends on the totality of the circumstances, including both the
characteristics of the accused and the nature of the interroga-
tion. If those circumstances reveal that the interrogated per-
son’s will was overborne, admitting the resulting confession
violates the Fifth Amendment.” Jackson v. Curry, 888 F.3d 259,
265 (7th Cir. 2018) (quoting Hurt, 880 F.3d at 845). Had Ustich
and Graf “accepted all historical facts favorably to the [Kohs]
and argued that those facts did not show that [Mr. Koh’s] con-
fession was involuntary, we would be in a position to answer
Nos. 18-1809 & 18-1821 15
the ultimate legal question.” Hurt, 880 F.3d at 846. But since
these challenged facts are an integral part of the totality of the
circumstances considered by the district court, we lack juris-
diction over Ustich and Graf’s appeal.
1. The Language Barrier
It was clear that Mr. Koh did not speak fluent English.
While all the parties admit that, Ustich and Graf’s characteri-
zation of the extent and effect of Mr. Koh’s language barrier
challenges the district court’s factual determinations at sum-
mary judgment. Ustich and Graf describe Mr. Koh as having
“limited English language proficiencies,” but they contend
that they “recruited an interpreter to eliminate or lessen the
language barrier.” 19 In so doing, they challenge the district
court’s factual determination that Mr. Koh did not just suffer
from a language barrier, but rather that Mr. Koh suffered a
lack of understanding and confusion and that the officers
were aware of this. Koh, 307 F. Supp. 3d 856. Taking the facts
in the light most favorable to Mr. Koh, this lack of under-
standing was obvious. As the district court aptly pointed out,
Many of Mr. Koh’s answers were altogether
nonsensical, showing (or so a reasonable jury
could find) that he did not understand what was
going on. For example, Mr. Koh responded to
Graf’s question about what kind of person Paul
was by narrating what happened yesterday
morning. At another point in the interview, Koh
answered a question about whether he saw a
weapon by telling Graf about the tools he kept
for his vending machine business. During one
19 Ustich and Graf Appellate Br. at 24, 33.
16 Nos. 18-1809 & 18-1821
tense moment, Graf asked Mr. Koh[,] “Would
God want Paul to [ ] have his father sitting here
and telling us a story that’s not true?”—a ques-
tion that should obviously have been answered
“no”—but Mr. Koh said “yeah.” As the inter-
view went on, Mr. Koh largely defaulted to giv-
ing one word or unintelligible answers, or re-
sponding that he did not know or could not re-
member.
Id. at 851. (citations omitted and second alteration in original).
Moreover, the district court again noted that Mr. Koh’s con-
fusion was evident when Graf had more or less gotten Mr.
Koh to admit that he stabbed Paul in self-defense: Mr. Koh’s
responses to follow-up questions made it clear that he may
have been speaking about an earlier incident when Paul
swung a golf club at Mr. Koh. Id. at 856 n.37 (quoting Inter-
view Tr. at 136–37). The extent of Mr. Koh’s understanding
and the degree of his confusion are key to determining
whether his confession was involuntary and coerced. There-
fore, Ustich and Graf’s characterization of Mr. Koh’s language
problem as a “limited English language proficiency” over-
come by the presence of an interpreter, rather than accepting
the district court’s conclusions concerning Koh’s lack of un-
derstanding, precludes our jurisdiction. See Jackson, 888 F.3d
at 264 (“[D]ifferences in the parties’ charaterizations of the
same evidence are the essence of fact disputes, over which we
presently lack jurisdiction.”) (internal quotation marks omit-
ted); Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) (internal
quotations and citations omitted) (“In reviewing a district
court’s denial of qualified immunity, we cannot make conclu-
sions about which facts the parties ultimately might be able to
Nos. 18-1809 & 18-1821 17
establish at trial. Nor may we reconsider the district court’s
determination that certain genuine issues of fact exist.”).
Ustich and Graf’s challenge regarding the impact and ex-
tent of Mr. Koh’s language barrier also extends to their de-
scription of the administration of Miranda warnings to
Mr. Koh. While they concede that Mr. Koh did not subjec-
tively understand the warnings, their characterization of the
facts surrounding the administration of the Miranda warnings
is limited and selective. Any reasonable officer would have
known at the time of Mr. Koh’s interview that Miranda warn-
ings are critical to protect a suspect against coercion. United
States v. Gupta, 183 F.3d 615, 617 (7th Cir. 1999) (“Potential co-
ercion or compulsion is vital to Miranda’s application, because
the clause underlying its framework is the privilege against
compulsory self-incrimination.”). They note that Graf read
Mr. Koh his rights, Mr. Koh nodded that he understood, and
when Mr. Koh requested that Kim translate, Graf agreed to
allow that. According to Ustich and Graf, Kim then spoke to
Mr. Koh in Korean and then Mr. Koh signed the Miranda
waiver form. A reasonable officer would have known that he
could not rely upon Mr. Koh’s nodding without speaking
when he was first read the Miranda warnings after Mr. Koh
asked Kim to translate. A person typically asks for something
to be translated when he does not understand what was said
to him in another language. When such a request is made, any
prior nodding is more likely a polite acknowledgment that he
was listening to what the speaker was saying rather than af-
firming. Ustich and Graf also leave out the important fact that
Mr. Koh was going to date the written waiver form with
“early in the morning,” presumably that being the time Paul
was found at his home. Taking this fact in the light most fa-
vorable to Mr. Koh, a reasonable officer would conclude that
18 Nos. 18-1809 & 18-1821
Mr. Koh did not understand what he was executing when he
signed the English Miranda waiver form. As the district court
stated, Mr. Koh executed the written “Miranda waiver form at
Graf’s and Kim’s directions.” Koh, 307 F. Supp. 3d at 851 (em-
phasis added). So even if Ustich and Graf did not understand
what Kim said to Mr. Koh in Korean, Mr. Koh’s conduct when
executing the English Miranda waiver form would prompt a
reasonable officer to conclude that Mr. Koh did not under-
stand what he was signing. Finally, Ustich and Graf’s conten-
tion that Mr. Koh agreed at the beginning of the second inter-
view that he was advised of his rights and understood is un-
availing because it further disregards the district court’s con-
clusions regarding Mr. Koh’s lack of understanding due to the
language barrier. More importantly, it presupposes that Mr.
Koh understood his rights in the first instance.
2. Lack of Sleep and Medication
Similarly, Ustich and Graf challenge the district court’s
factual determinations regarding Mr. Koh’s lack of sleep and
medication. Both sleep and medication are relevant to the in-
quiry of whether an individual is susceptible to coercion. See
Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968); United States
v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). Regarding Mr.
Koh’s lack of sleep, Ustich and Graf argue Mr. Koh had slept
for five hours the night prior and he did not assert he was pro-
hibited from resting between interviews. They go on stating,
“[N]o reasonable police officer would think that a person who
had just lost his son in such a violent manner would want
more rest, under such circumstances, before trying to help po-
lice solve the crime.” 20 With such characterizations, though,
20 Ustich and Graf Appellate Br. at 36.
Nos. 18-1809 & 18-1821 19
Ustich and Graf are not taking the facts in the light most fa-
vorable to Mr. Koh and are ignoring the district court’s con-
clusion that throughout the interviews Mr. Koh displayed
signs of physical exhaustion when “he sat hunched over in his
chair” and hit himself in the head and chest. Koh, 307 F. Supp.
3d at 837. This is a factual challenge that precludes our juris-
diction. Similarly, Ustich and Graf acknowledge that Mr. Koh
did not receive his requested medication until after his second
interview, but they argue that they did not intentionally delay
providing the medicine. 21 They do not state how their intent
is relevant to Mr. Koh’s Fifth Amendment claim, and to the
extent that it may be relevant, it is outside the scope of our
jurisdiction over this interlocutory appeal. Stinson v. Gauger,
868 F.3d 516, 526–27 (7th Cir. 2015) (holding that the existence
of intent is an issue of fact that cannot be decided on an inter-
locutory appeal of a denial of qualified immunity).
3. Threatening Language
Ustich and Graf also assert that Mr. Koh’s interrogation
contained no “threats of consequences.” 22 This, though, is in
direct contravention of the district court’s factual determina-
tion that a reasonable jury could find it was a threat when Graf
told Mr. Koh that they could be there for “days and days and
days.” Koh, 307 F. Supp. 3d at 853 (quoting Interview Tr. at
117). Accordingly, we do not have jurisdiction to consider Us-
tich and Graf’s legal argument that law was not clearly estab-
lished at the time of Mr. Koh’s interview because this argu-
ment is “dependent upon, and inseparable from, disputed
facts.” Gant, 924 F.3d at 448.
21 Id. at 37.
22 Id. at 30
20 Nos. 18-1809 & 18-1821
B. Kim
Turning now to Kim’s arguments, we first address his ar-
gument that there was no clearly established law in June 2009
that would have put him, a language interpreter, on notice
that this conduct was unconstitutional. This argument,
though, contests the district court’s factual determinations
about Kim’s role during the interrogation and, thus, is outside
of the scope of our limited jurisdiction. See Levan v. George, 604
F.3d 366, 370 (7th Cir. 2010) (“If the legal issue being appealed
is not significantly different than the factual issues underlying
the claim, this separability requirement will be nearly impos-
sible to satisfy.”) It is true that the district court addressed
Kim’s role as an interpreter, but Kim’s argument ignores the
district court’s factual determination that Kim participated in
the interrogation itself and did not act as a mere interpreter.
Koh, 307 F. Supp. 3d at 852 (“Officer Kim even joined in the
interrogation by asking his own questions in English. . . . Of-
ficer Kim would . . . interject in Korean with questions of his
own.”). At this juncture, we must take the fact that Kim par-
ticipated as an interrogator during the interview as true, and
Kim’s characterization of his role in the interrogation as a
mere interpreter challenges that fact in such a way that pre-
cludes our jurisdiction. We are unable to address his pur-
ported legal claim because it is entangled with the factual
question of his role during Mr. Koh’s interview. See Hill v.
Coppleson, 627 F.3d 601, 605–06 (7th Cir. 2010) (holding that a
prosecutor was not entitled to absolute or qualified immunity
because the “resolution depends on facts that the district
court has properly determined to be in dispute”).
Nos. 18-1809 & 18-1821 21
Further, in light of the district court’s factual determina-
tion about Kim’s participation in the interview, the district
court did not err in attributing to Kim a shared knowledge
with Graf of the facts and circumstances of the interrogation.
Kim argues that the attribution demonstrates that the district
court failed to assess his entitlement to qualified immunity in-
dependently of its assessment of Graf’s qualified immunity
claim. While the district court’s individual assessment of
Kim’s entitlement to qualified immunity was brief, given that
Kim participated in the same, singular factual scenario as
Graf, i.e., Mr. Koh’s interrogation, the district court satisfied
the individualized determination required when it concluded
that Kim was not entitled to qualified immunity. This is par-
ticularly true given the district court’s determination that Kim
participated in the interrogation by posing questions of his
own and not merely as a language interpreter. Cf. Estate of Wil-
liams v. Cline, 902 F.3d 643, 651–52 (7th Cir. 2018) (holding that
the district court did not conduct the requisite individualized
determination of officers’ entitlement to qualified immunity
on plaintiff’s Fourth Amendment claim where officers had
varying encounters with plaintiff at different times).
Kim further argues that had the district court made the ap-
propriate individualized determination “it would have found
[he] lacked requisite intent to coerce a confession from Koh in
violation of the Fifth Amendment’s self-incrimination
clause.” 23 Like Ustich and Graf, Kim has failed to assert how
his intent is relevant to Mr. Koh’s legal claim and to the extent
that it may be relevant, such a contention is a factual question
over which we do not have jurisdiction. Stinson, 868 F.3d at
526–27. Kim’s argument regarding intent also permeates his
23 Kim Reply Br. at 17–18.
22 Nos. 18-1809 & 18-1821
challenge of the district court’s factual determination regard-
ing the translations that he provided, namely the summary of
the Miranda warnings, the Korean idiom gachi jookja, and other
translational errors. He contends he “acted to the best of his
ability” and had no intention to deceive or coerce Koh’s con-
fession. 24 Again, such an argument is outside the scope of our
limited jurisdiction at this juncture.
C. Superseding, Intervening Cause
All three appellants contend that the state trial court’s de-
nial of Mr. Koh’s motion to suppress is a superseding, inter-
vening cause entitling them to qualified immunity. We do not
have jurisdiction over the argument asserted by all appellants
that the state court’s denial of Mr. Koh’s motion to suppress
is a superseding, intervening cause of his Fifth Amendment
claim. As we held in Jackson, 888 F.3d at 266, this court has not
“accepted this argument in the context of a Fifth Amendment
coerced-confession claim,” and since the “superseding-cause
issue . . . is not a pure legal question related to qualified im-
munity,” the court lacks jurisdiction under the collateral order
doctrine.
III.
Because these appeals present factual challenges that are
outside of our jurisdiction over an appeal of an order denying
qualified immunity on summary judgment, we dismiss these
appeals for lack of jurisdiction.
24 Kim Appellant Br. at 20.