The due process clause of the Fifth and Fourteenth Amendments forbids the government to deprive persons of life, liberty, or property, without due process of law. “Liberty” has been generously interpreted, to encompass not just freedom of physical action but also such intangibles as familial association and liberty of conscience. See our recent discussion in
Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.1989). It has long been interpreted to include freedom from severe, and sometimes not so severe (see
Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)), bodily harm (see, e.g.,
Ware v. Reed, supra, 709 F.2d at 351), to which severe mental distress can reasonably be compared. It is for the trier of fact to decide whether a particular incident involving interrogation at gunpoint is so terrifying in the circumstances as to constitute a deprivation of liberty within the meaning of the due process clause. When the deprivation occurs in the course of a police interrogation—a stage in the criminal justice process—it is fairly described as a denial of due process, with no need to add the oxymoronic “substantive.” Interrogation so coercive is a form of criminal procedure incompatible with the traditional liberties of the subject.
Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940), and
Brown v. Mississippi, 297 U.S. 278, 285–86, 56 S.Ct. 461, 464–65, 80 L.Ed. 682 (1936), instance the rack as a method of interrogation forbidden by the due process clause. See also
Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951). Interrogation at gunpoint is a comparable example—depending of course on the circumstances—even though it involves no touching. The applicability of the due process clause to police brutality occurring after the suspect is formally charged has rarely been questioned, and whether he has been charged, or merely arrested, seems to us a detail of no constitutional significance.