Guiffre v. Bissell

• Court: Court of Appeals for the Third Circuit
• Decided: August 4, 1994
• Docket: 93-5541
• Status: Unknown

Opinion

Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit

8-4-1994

Guiffre v. Bissell, et al. Precedential or Non-Precedential:

Docket 93-5541

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No. 93-5541

JAMES J. GIUFFRE,

v.

NICHOLAS BISSELL; RICHARD THORNBURG; ROBERT SMITH; RUSS LEFFERT; SAM DEBELLA; RICHARD MEYERS; COUNTY OF SOMERSET,

Appellants ----------

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 92-02014)

Argued Monday, May 2, 1994

BEFORE: GREENBERG and GARTH, Circuit Judges, and ROBRENO, District Judge0

(Opinion filed August 4, 1994)

Scott D. Rodgers (Argued) Welaj, Miller & Robertson 21 North Bridge Street Post Office Box 1034 Somerville, New Jersey 08876

Attorney for Appellants

0 * Honorable Eduardo C. Robreno, United States District Court for the Eastern District of Pennsylvania, sitting by designation. Frank P. Arleo (Argued) Arseneault, Donohue, Sorrentino & Fassett 560 Main Street Chatham, New Jersey 07928

Attorney for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal requires us to revisit the doctrine of

absolute and qualified immunity in order to determine if we may

review at this time the district court's order which denied

summary judgment to the individual defendants. Insofar as the

appellee Giuffre's complaint alleges violations of his Fifth,

Sixth, and procedural Fourteenth Amendment rights, we hold that

the individual defendants are entitled to qualified immunity, and

to that extent reverse the district court's order. We also hold

that the district court correctly denied absolute immunity at

this time for Somerset County Prosecutor Nicholas Bissell.

Without expressing any views as to the merits of Giuffre's

remaining claims, we dismiss the balance of the appeal for lack

of appellate jurisdiction.

I.

The appellants, Prosecutor Bissell and five of his

current and former investigative officers (collectively, "the

appellant officials"), and the County of Somerset ("the County"), appeal the district court's order denying their motion for

summary judgment, which was brought against the appellee, James

J. Giuffre.

Giuffre's claims against the County and the appellant

officials arose from Giuffre's arrest on May 10, 1990 following

an official investigation by the Somerset County Prosecutor's

Office and other investigative authorities of an alleged drug

conspiracy. Within 24 hours of his arrest, and without

representation by counsel, Giuffre conveyed ownership to the

County of two building lots he owned in neighboring Hunterdon

County. That transaction was ostensibly authorized under the

forfeiture provisions of N.J.S.A. 2C:64-10 because Giuffre signed

a written statement admitting that the two building lots were

purchased in part with illegal drug proceeds. The forfeited

building lots were sold seven months later at public auction, and

the drug charges against Giuffre were administratively dismissed

by the Prosecutor's Office on October 31, 1991, after Giuffre

cooperated in an ongoing drug investigation. Although the

0 N.J.S.A. 2C:64-1, in relevant part, provides:

a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:

(1) Controlled dangerous substances . . .. shall be designated prima facie contraband. * * * (4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a.(1) . . .. statute of limitations at this juncture has yet to run, Giuffre

still has not been indicted.0

On May 7, 1992, Giuffre filed the instant action,

seeking compensatory and punitive damages against the County and

against the appellant officials, both in their official and

individual capacities, for violations of 42 U.S.C. § 1983, the

United States Constitution, and New Jersey law.0 In his

0 At oral argument, all counsel admitted that, despite the virtual conclusive proof that Giuffre was involved in drug distribution, Giuffre had not been indicted. Counsel for Giuffre readily acknowledged that there was "never any question" that Giuffre had cocaine in his house at the time of his arrest. Transcript of Oral Argument at 30. The suggestion was voiced by the attorney for the County and appellant officials that, although the criminal case against Giuffre was "air-tight," the County Prosecutor's Office "felt that it would look like vindictive prosecution" if it indicted Giuffre after he commenced this civil action. Id. at 21-23. The County thus made a "strategical decision at the beginning of [this civil] case" not to indict Giuffre so as to avoid any "inconsisten[cy in] establishing during the trial that there was, in fact, a deal that is enforceable." Id. at 22. 0 The eight-count complaint names as defendants: Somerset County Prosecutor Nicholas Bissell; the Prosecutor's chief of detectives, Richard Thornburg; deputy chief of detectives, Robert Smith, Sergeant Richard Meyers and Detective Samuel DeBella of the Prosecutor's Office; and Warren Township police detective Russell W. Leffert, who was working with the Prosecutor's investigators. Counts 1 and 2 of Giuffre's complaint allege that the appellant officials conspired to deprive Giuffre and actually deprived Giuffre of his constitutional and civil rights in violation of 42 U.S.C. §§ 1983 and 1985. Count 3 alleges that the officials conspired to violate Giuffre's rights under the United States Constitution. Count 4 alleges that the County had a de facto policy of targeting for criminal investigation and prosecution individuals who owned substantial assets, and of obtaining those assets through fraud and duress, and in violation of their constitutional and civil rights, and that that alleged policy was maintained and implemented by Prosecutor Bissell, Chief Thornburg, and other members of the Prosecutor's staff. Count 5 asserts violations of 42 U.S.C. §§ 1983 and 1986 by complaint against the County and the officials, Giuffre also

sought judgment rescinding the sale of his forfeited lots, and a

declaratory judgment that the officials conspired to violate

and/or violated his constitutional and civil rights, and

conspired to deprive him of his property through fraud, duress

and without due process of law.

The County and the officials moved for summary

judgment, arguing, among other things, that the individual

officials were entitled to qualified and/or absolute immunity.

Their summary judgment motion was supported by the depositions of

the appellant officials and other witnesses who denied the

allegations in Giuffre's complaint. In opposition to summary

judgment, Giuffre presented his own deposition evidence, which

created a dispute of fact over the circumstances under which he

conveyed title to his two building lots. After considering the

parties' arguments and conflicting evidence, the district court

on July 29, 1993 denied the defendants' motion for summary

judgment.

The district court determined that summary judgment was

inappropriate because Giuffre's deposition testimony raised

genuine issues of material fact regarding: (1) the appellant

officials' allegedly coercive and unconstitutional conduct toward

Giuffre; (2) the existence of an alleged civil rights conspiracy;

virtue of the alleged failure of Bissell and Thornburg to train and supervise properly their subordinates. In Counts 5, 6, and 7, Giuffre asserts claims against the officials for alleged violations of New Jersey law. (3) the existence and effects of the County's alleged policy of

targeting criminal defendants who owned substantial assets, and

(4) the alleged failure of the County to train and supervise

properly the appellant officials. The district court did not

discuss at length the immunity defenses raised by the individual

officials. The court ruled that Prosecutor Bissell was not

entitled to absolute prosecutorial immunity because Bissell's

actions could be characterized as investigatory. It also ruled

that none of the individual officials was entitled to qualified

immunity because Giuffre had raised a genuine issue of material

fact as to whether any clearly established laws had been violated

by the officials.

On appeal, the County and the officials contend, as

they did before the district court, that they were entitled to

summary judgment because: (1) Giuffre has failed to state a

viable cause of action under § 1983 for violations of his rights

under the Fifth, Sixth, and Fourteenth Amendments of the United

States Constitution; (2) the officials lacked the requisite

personal involvement and specific conduct to be held liable under

§ 1983 for federal constitutional violations or under the New

Jersey Tort Claims Act for state law violations; (3) the

individual officers are shielded, in any event, from suit on

Giuffre's federal and pendent state claims under principles of

absolute and/or qualified immunity; and (4) there is insufficient

evidence to hold the County liable under any of the legal

theories stated by Giuffre. We will affirm that portion of the July 29, 1993 order

of the district court denying Prosecutor Bissell absolute

immunity, and we will reverse that order only to the extent that

it denies the officials qualified immunity for alleged violations

of the Fifth and Sixth Amendments, and the procedural due process

guarantee of the Fourteenth Amendment. We will dismiss the

balance of this appeal for lack of appellate jurisdiction.

II.

The County and the appellant officials urge us to

reverse the district court's denial of their motion for summary

judgment. Generally, we ordinarily have no jurisdiction to

review orders denying summary judgment because such orders are

not final within the requirements of 28 U.S.C. § 1291. W.D.D.,

Inc. v. Thornbury Township, 850 F.2d 170, 171 (3d Cir.) (in

banc), cert. denied, 488 U.S. 892 (1988).

The Supreme Court has held, however, that an order

denying qualified or absolute immunity, to the extent that the

order turns on an issue of law, is immediately appealable under

the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). That is because the immunity doctrine does not

serve merely as a public official's defense to liability; rather

it shelters that official from having to stand trial. This

immunity from suit is lost when a case is erroneously permitted

to go to trial. Id. at 526-27; Brown v. Grabowski, 922 F.2d

1097, 1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). We thus have appellate jurisdiction to consider the immunity issues

raised by the individual officials.

A.

Up to this point, Giuffre's claims for declaratory

judgment and for judgment rescinding the forfeiture of his lots

have not been ruled upon. In addition, the district court has

refused to certify as final its order denying summary judgment on

Giuffre's claims for money damages, pursuant to 28 U.S.C.

§1292(b).0 Giuffre's damage claims, however, are joined in his

complaint with an ostensible claim for prospective injunctive

relief. We have held in Prisco v. United States Dep't of

Justice, 851 F.2d 93, 94 (3d Cir. 1988), cert. denied sub nom.

Smith v. Prisco, 490 U.S. 1089 (1989), that the inclusion of a

0 28 U.S.C. § 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. viable claim for prospective equitable relief bars interlocutory

review of a district court's denial of immunity.

Our Prisco opinion explained why the Mitchell

collateral order doctrine is not available for a joinder of

claims for injunctive relief and money damages: The marginal benefit to a governmental official from an interlocutory review of a ruling that proof of damages should not be heard is so slight that it cannot outweigh the systemic harms from permitting piecemeal interlocutory review of discrete issues in a case which, even against that official, will be ongoing.

Id. at 96. Although we alone among the courts of appeals adhere

to such a rule, we nevertheless are bound to follow Prisco in

those cases where a plaintiff states a colorable claim for

injunctive relief in addition to a claim for damages. See, e.g.,

Burns v. County of Cambria, 971 F.2d 1015, 1019 (3d Cir. 1992),

cert denied sub nom. Roberts v. Mutsko, 113 S. Ct. 1049 (1993);

see also Internal Operating Procedures, United States Court of

Appeals for the Third Circuit, Rule 9.1 ("The holding of a panel

in a reported opinion is binding on subsequent panels . . . . in

banc consideration is required [to overrule such a holding].").

Proper application of the Prisco rule requires an

initial determination of whether a claim for injunctive relief

is, on its face, colorable. Acierno v. Cloutier, F.3d ,

1994 WL 318783 * 8 (slip op. at 21) (3d Cir. July 7, 1994)

("Prisco allows us to 'examine[] the complaint carefully to

determine whether any of its allegations would permit proof of

facts warranting any prospective relief against [the defendant

officials].'") (quoting Prisco, 851 F.2d at 96). In the instant case, Giuffre's complaint clearly does not state a colorable

claim for prospective equitable relief.

It is obvious to us that Giuffre's claim for rescission

of the forfeiture of his property to the County is not viable.

Giuffre's counsel admitted as much at oral argument when he

acknowledged that Giuffre "would have a tough time rescinding"

sale of the lots because "at least one [of the lots] is in the

hands of a bonafide purchaser." Transcript of Oral Argument at

45-46. Moreover, as the appellant officials point out, Giuffre

has failed to name as defendants those individuals whom he claims

conspired with the officials to acquire ownership of his building

lots. Even if the failure to name those individuals was not

fatal to a claim of rescission, it is the County and not the

officials that would be subject to the prospective relief sought

by Giuffre. Giuffre transferred title of the two building lots

to the County, and the County sold the lots at public auction.

Hence, the individual officials could not rescind the

sale, in any event, and would be liable only for compensatory and

punitive damages. Indeed, counsel conceded at oral argument

that Giuffre is seeking only money damages in his action against

the County and the officials.0 As such, the relief sought by 0 At oral argument, the following exchange took place:

THE COURT: [A]m I correct in saying that what Mr. Guiffre wants is the money for the two lots?

[COUNSEL FOR GIUFFRE]: Essentially, there are some other minor damage components, but essentially, that's --

THE COURT: They're all translatable into money? Giuffre is purely legal, and cannot be cast as prospective or

equitable in character.

Because the actual remedy sought by Giuffre does not

involve prospective, equitable relief, we hold that the rule of

Prisco is inapplicable here. Acierno, F.3d , 1994 WL

318783 at * 9 (slip op. at 22) (holding that the lack of any

viable available injunctive relief against defendant officer, as

alleged in the plaintiff's complaint, entitled the defendant to

immediate review of denial of summary judgment on immunity

grounds). Without immediate appellate review, the officials in

the instant case would be effectively deprived of their immunity

from suit -- their "right not to stand trial" -- on Giuffre's

federal claims for damages, merely because Giuffre has included

in his complaint what he himself concedes is a nonactionable

claim.

To hold otherwise might encourage future plaintiffs to

add frivolous equitable claims to their damage claims so as to

defeat the immediate appeal of orders denying official immunity.

See Schrob v. Catterson ("Schrob II"), 967 F.2d 929, 940-41 (3d

Cir. 1992) (noting that other courts of appeal which have

rejected Prisco have expressed such a concern); cf. Scott v. Lacy, 811 F.2d 1153, 1154 (7th Cir. 1992) ("plaintiffs who wished

to harass officials to travail would need only demand equitable

[COUNSEL FOR GIUFFRE]: Correct.

Transcript of Oral Argument at 45. relief, defeating the defendants' opportunity to obtain prompt

review").

B.

Giuffre argues, however, that we are without

jurisdiction to hear the instant appeal because the district

court denied immunity due to the existence of material disputes

of fact. Contrary to Giuffre's position, the immediate

appealability of orders denying immunity is not automatically

defeated merely because some issues of material fact remain.

Kulwicki v. Dawson, 969 F.2d 1454, 1460 (3d Cir. 1992) ("Insofar

as there may be issues of material fact present in a case on

appeal, we would have to look at those facts in the light most

favorable to the non-moving party."). In a non-Prisco case such

as this one, we have jurisdiction to determine, as a matter of

law, whether the individual officials' alleged conduct violated

any "clearly established" constitutional rights. Mitchell, 472

U.S. at 530; Brown v. Grabowski, 922 F.2d at 1109.

Here, our task is somewhat complicated by the fact that

the district court failed to make the threshold determination of

whether the officials were entitled to immunity in the face of

Giuffre's factual allegations. The district court never

determined, as it was obliged to do, "'whether the legal norms

allegedly violated by the defendant were clearly established at

the time of the challenged actions.'" Brown v. Grabowski, 922 F.2d at 1109 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981)). Indeed, the district court did not even identify the specific constitutional rights allegedly violated by the

individual officials. It merely concluded "that whether

Defendants violated any clearly established laws constitutes a

genuine issue of material fact." Dist. Ct. Slip Op. at 8.

As part of our plenary review of a district court's

immunity determination, we have jurisdiction to determine whether

the plaintiff has asserted a violation of a constitutional right

under 42 U.S.C. § 1983. See Siegert v. Gilley, 500 U.S. 226, 231

(1991); D.R. by L.R. v. Middle Bucks Area Vocational Technical

Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (in banc), cert. denied,

113 S. Ct. 1045 (1993). That is because "'[a] necessary

concomitant to the determination of whether the constitutional

right asserted by a plaintiff is 'clearly established' at the

time the defendant acted is the determination of whether the

plaintiff has asserted a violation of a constitutional right at

all.'" D.R. by L.R., 972 F.2d at 1368 (quoting Siegert v.

Gilley, 500 U.S. at 232) (emphasis added in D.R. by L.R.).

Before us, Giuffre identifies the federal civil rights

and constitutional claims against the individual officials in

Counts 1, 2, and 3 of his complaint as sounding in the Fifth,

Sixth, and Fourteenth Amendments. We have jurisdiction to

consider the individual officials' assertion of entitlement to

immunity to suit on those claims, but only to the extent that we

can make that determination as a matter of law.0 See Burns, 971 F.2d at 1019.

0 To the extent that the complaint charges the official defendants with liability in their official capacity, we understand that the As we have previously indicated, however, we are

without jurisdiction to review the denial of summary judgment on

the remaining claims raised by Giuffre against the County and the

appellant officials. Those remaining claims are not subject to

immunity under the Mitchell doctrine, and thus cannot be reviewed

on interlocutory appeal.

The denial of summary judgment on Giuffre's claims in

Counts 4 and 5 of his complaint, seeking damages against

Prosecutor Bissell and Chief Thornburg for failing to train and

supervise subordinates in the Prosecutor's Office, is not

immediately appealable. That is because the County is the real

party in interest with respect to these claims, and the County

cannot assert a qualified immunity defense so as to qualify,

under Mitchell, for review of the district court's summary

judgment ruling. Brown v. Grabowski, 922 F.2d at 1105; see also

Owen v. City of Independence, 445 U.S. 622, 638, 650 (1980)

(holding that § 1983 does not accord municipal corporations a

qualified immunity for their good-faith constitutional

violations).

That portion of the interlocutory order of the district

court denying the appellant officials immunity on Giuffre's

pendent state claims, contained in Counts 6, 7, and 8 of Giuffre's complaint, also is unreviewable at this time. As we

explained in Brown v. Grabowski, decisions concerning immunity

practical effect of that characterization is to charge the County with liability. As discussed in text, the County, as the real party in interest, does not have a qualified immunity defense available to it. from suit on federal claims fall within the small class of

appealable decisions -- carved out by the Supreme Court in Cohen

v. Beneficial Indus. Loan Corp, 337 U.S. 541, 546 (1949) -- that

"'finally determine claims of right separable from, and

collateral to, rights asserted in the action.'" 922 F.2d at 1106

(quoting Mitchell, 472 U.S. at 527-29). The denial of a claim of

qualified immunity premised upon state law, on the other hand, is

appealable only if the state has conferred an underlying

substantive immunity from suits arising from the performance of

official duties. 922 F.2d at 1106-07. Because the New Jersey

Tort Claims Act provides a government official with immunity from

liability, not immunity from suits arising from the performance

of official duties, we must dismiss for lack of appellate

jurisdiction that portion of the officials' appeal which is based

on immunity under the New Jersey Tort Claims Act. Id. at 1108-

09.

Accordingly, the scope of our jurisdiction for present

purposes is limited to a review of the denial of absolute

immunity for Prosecutor Bissell and the denial of qualified

immunity for Bissell and the other individual officials on the

claims against them for alleged violations of Giuffre's Fifth,

Sixth, and Fourteenth Amendment rights.

III.

Because an understanding of the factual record is

essential to our determination of whether we can, as a matter of

law, decide the individual officials' entitlement to immunity on Giuffre's Fifth, Sixth, and Fourteenth Amendment claims, we

detail the circumstances surrounding Giuffre's arrest and the

forfeiture of his lots.

The record reveals that the Somerset County

Prosecutor's Office obtained court authorization to wiretap

Giuffre's telephone after a confidential informant identified

Giuffre as a drug dealer. Following the interception of numerous

calls relating to illegal drug activities, and the

contemporaneous surveillance of suspected drug transactions, a

team of County investigators and police officers led by Sergeant

Richard A. Meyers of the County Prosecutor's Office executed a

search warrant for Giuffre's person and house on May 10, 1990.

The authorized search of Giuffre's residence resulted in the

seizure of approximately 17 grams of cocaine, 15 grams of

marijuana, drug paraphernalia, and Giuffre's hunting gun and

knife collections. Also seized were financial records and

documents, including deeds for the two building lots owned by

Giuffre.

Following his arrest, Giuffre was transported to a

satellite office of the County Prosecutor. There, Giuffre was

given his Miranda warnings and was questioned by Sergeant Meyers

and Warren Township police detective Russell W. Leffert, who was

working with the Prosecutor's Office in the investigation.

Detective Samuel J. DeBella of the Prosecutor's Office also was

present during this interrogation. By all accounts, Giuffre

indicated his willingness to cooperate with the investigators.

According to Giuffre, however, he wanted to talk with his attorney, and his repeated requests to do so, he claims, were

either ignored or denied by Sergeant Meyers and Detectives

Leffert and DeBella.

Giuffre waived his right to have counsel present, he

contends, only because he "was afraid that if I tried to push

that right that harm would come to me." App. 292. Specifically,

Giuffre alleges that during almost three hours of questioning,

the officers "threatened that they were going to lock my

girlfriend up, take her [handicapped] son away. . . . [i]f my

dogs barked at them they were going to shoot the dogs," and that,

if Giuffre did not cooperate, he would be put in jail "with a

bunch of guys that believe I informed on them." App. 289.

Meyers, Leffert, and DeBella maintain that they never threatened

Giuffre; that Giuffre never asked to speak with an attorney; and

that Giuffre voluntarily waived his Miranda rights and gave a

taped statement.

After giving the taped statement, Giuffre was processed

on charges of possession of cocaine, possession with intent to

distribute cocaine, and conspiracy to distribute cocaine. He was

then transported to the Somerset County Jail, where on the orders

of the Prosecutor's Office, Giuffre alleges, he was again denied

any contact with his attorney.

On the following day, May 11, 1990, Giuffre was

transported to the Somerset County Police Academy. At his

request, he met there with Robert A. Smith, the Prosecutor's

deputy chief of detectives, and discussed the possibility of

becoming a confidential informant. Giuffre recalls Deputy Chief Smith initiating a conversation about Giuffre's assets. Giuffre's

recollection is that he informed Smith that he had paid

approximately $175,000 for the two Hunterdon County building

lots, and that Smith suggested that, "You may be able to get out

of this if you cooperate and you're willing to sign these lots

over to the county." App. 239.

Giuffre was then taken to see Richard Thornburg, the

chief of detectives for the County Prosecutor's Office. Chief

Thornburg advised Giuffre that the County had the authority to

seize his house, his car, and any personal belongings used in

illegal drug transactions. According to Giuffre's version of

their conversation, Chief Thornburg made an offer: if Giuffre

turned over his two building lots and arranged "one good deal" as

an informant, Giuffre's car and other personal items would be

returned to him; he would be released on his own recognizance

with no bail; he would not be indicted; the criminal charges

would be dismissed, and therefore he would keep his professional

insurance and builder's licenses. App. 317-18.

Giuffre claims that Chief Thornburg gave him an hour to

make up his mind, but forbad him from speaking first with his

attorney. Giuffre further alleges that Chief Thornburg

threatened that, if Giuffre refused to cooperate, his home and

the building lots would be forfeited; his fiancee would be put

out of the house they shared and possibly face criminal charges

herself; he would "rot in jail for a year" before going to trial,

and he would lose his professional licenses. App. 312. At a second meeting with Chief Thornburg, also on May

11, 1990, Giuffre signed over the deeds for the two lots for $1.

Giuffre remembers being "floored" when he was asked at that

meeting to sign a prepared statement attesting to the fact that

he had bought the lots with illegal drug proceeds. App. 329. He

insists that he made it clear to Chief Thornburg and Detective

Leffert that "not one cent of illegal money [was] used to buy

those lots." Id. Giuffre also alleges that he again demanded,

and was again denied, his right to have a lawyer present. Giuffre

nevertheless signed the statement averring that illegal drug

proceeds were used to purchase the property. App. 330-31.

Chief Thornburg and Deputy Chief Smith together offer a

significantly different version of the circumstances surrounding

the forfeiture of the building lots. They deny having had any

prior knowledge of the lots before Giuffre proposed substituting

those lots in lieu of the forfeiture of his house and car. They

were amenable to Giuffre keeping his car and his house, they

contend, only because that would facilitate Giuffre's

effectiveness as an informant. As Deputy Chief Smith explained

in his deposition, their feeling was that Giuffre "needed the

vehicle to cooperate with," and it was better for Giuffre "to do

his dealings out of, his house, instead of going to a motel,"

because "[p]eople get nervous from motels." App. 450. Chief

Thornburg maintains that Giuffre voluntarily acknowledged that

the lots were purchased in part from the proceeds of illegal drug

distribution, and that he never made any promises that Giuffre

would not be prosecuted if he cooperated and turned over the building lots. Thornburg denies that Giuffre ever requested an

attorney at any time during their discussions. He also denies

ever threatening harm to Giuffre, Giuffre's fiancee, or Giuffre's

dogs.

Prosecutor Bissell apparently had no direct contact

with Giuffre on May 11, 1990. He did, however, direct Chief

Thornburg to ask Giuffre certain questions during the

negotiations which resulted in the forfeiture of Giuffre's

building lots. Bissell wanted to know which individuals Giuffre

could identify as possible targets of an official investigation,

and also "whether or not the lots had somehow been involved in

the drugs, in the money, did any of the money from the drugs, was

that used to purchase the lots?" App. 362-65. Bissell testified

at his deposition that he was assured by Chief Thornburg that

"some or all of the money used [to purchase] the lots was -- came

from drugs." Id. Although initially inclined against entering

into any kind of agreement with Giuffre, Bissell says he later

"acquiesced against [his] better judgment" at the urging of Chief

Thornburg, who felt "that Giuffre was someone who could provide

valuable information." App. 361.

After Giuffre signed over the deeds for the building

lots, he was released on his own recognizance. Two days later,

Giuffre told attorney Richard Gordeck, a childhood acquaintance,

about the forfeiture of the lots. He also told Grodeck that the

Prosecutor's Office had promised to dismiss the criminal charges

if he cooperated as a confidential informant and produced one defendant of substance, but that he was warned against discussing

the matter with an attorney.

Grodeck subsequently met with Chief Thornburg and

Assistant Somerset County Prosecutor James R. Wronko, and

attempted to "reconstruct the deal because Giuffre wanted the

lots back." App. 417. Chief Thornburg states that he told

Grodeck that the County was "willing to give the lots back" and

to "start from scratch," meaning that Giuffre would be prosecuted

on the criminal charges. App. 417. However, Grodeck does not

recall Thornburg saying that the deal could be rescinded. In any

event, at the meeting Grodeck focused on having the agreement

with Giuffre put in writing, rather than pressing for a return of

the lots, because Giuffre's ultimate goal was a dismissal of the

criminal charges. The transaction with Giuffre was never

formally memorialized, however, because the County Prosecutor's

Office had a policy of not putting confidential informant

agreements in writing.

Immediately thereafter, Giuffre alleges that Chief

Thornburg and Assistant Prosecutor Wronko told him to get rid of

his lawyer "or the deal is off." App. 1122. Giuffre complied

and, on June 1, 1990, he appeared without counsel before the

Somerset County Superior Court for an initial hearing on the drug

charges. The court postponed the hearing and gave Giuffre a week

to hire a new attorney. Giuffre claims that members of the

County Prosecutor's Office then arranged for him to be

represented by a public defender, notwithstanding his

protestations that he did not qualify as an indigent because he owned assets. Chief Thornburg, Assistant Prosecutor Wronko, and

Detective DeBella each deny any involvement in Giuffre's decision

to discharge his privately-retained counsel and his application

for representation by a public defender. Giuffre, in any event,

never appeared again in court to answer the drug charges against

him.

Following his arrest, Giuffre began cooperating with

County investigators, meeting regularly with Detective DeBella

and others from the Prosecutor's office.0 Giuffre alleges that

during this time, in July 1990, Prosecutor Bissell indicated to

him that he would have the first opportunity to buy back his

building lots, but his offer of $100,000 cash for the lots was

later rejected by Bissell as insufficient. Giuffre further

alleges that he was also told, by Detective DeBella, that the

County had a policy of targeting individuals with substantial

amounts of cash and/or assets. App. 335-37. Detective DeBella

admitted in his deposition testimony that, in fact, he had told

Giuffre that "we don't want people just for the drugs, we have to

0 While working with the County Prosecutor's Office, Giuffre surreptitiously taped his conversations with investigators. Those tapes were turned over to his public defender, who in turn sent them to the New Jersey Attorney General's Office. A subsequent investigation by the Attorney General's office into Giuffre's allegations of official misconduct by Prosecutor Bissell, members of the County Prosecutor's office, and others, was closed without further action after state authorities failed to uncover any evidence corroborating Giuffre's allegations. App. 979. All relevant documents were thereafter forwarded by the New Jersey Attorney General's Office to the United States Attorney's Office for New Jersey, which also conducted an inquiry into the same allegations raised by Giuffre. Id. get people with assets." App. 526-29. DeBella, however, denied

any knowledge of a County policy of targeting individuals with

substantial assets, explaining that his remarks to Giuffre meant

only that "if you take away [a drug dealer's] money, then he

can't buy drugs, he can't distribute drugs." App. 528-29.

On October 31, 1991, Giuffre was granted an

administrative dismissal of the outstanding criminal charges,

ostensibly because Giuffre's cooperation had led to the

prosecution of four other criminal defendants for drug-related

offenses. In the meantime, the County had authorized the sale of

Giuffre's two forfeited lots at a public sale, notice of which

was published. Each lot sold for $10,000.

IV.

In considering the merits of the officials' appeal of

the district court's order denying immunity, we first address the

question of whether Prosecutor Bissell was entitled to absolute

immunity. Our review of this legal issue is plenary, and we must

view the evidence and the inferences to be drawn from that

evidence in the light most favorable to Giuffre. Kulwicki, 969

F.2d at 1461.

The district court determined that Prosecutor Bissell

was not entitled to absolute immunity "to the extent that [his]

actions can be characterized as investigative functions." Dist.

Ct. Slip Op. at 8. Bissell challenges that determination,

claiming that he was completely uninvolved with the investigative

procedures leading up to consummation of the property forfeiture deal with Giuffre, and that his conduct "constituted a core

prosecutorial function; i.e., the evaluation of information in

furtherance of deciding the appropriate course of criminal

prosecution." County rpl.br. at 10.

In Kulwicki, we set forth the law concerning the

immunity of prosecutors from suit under § 1983: Prosecutors are subject to varying levels of official immunity. Absolute immunity attaches to all actions performed in a "quasi-judicial" role. Imber v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). This includes activity taken while in court, such as the presentation of evidence or legal argument, as well as selected out-of-court behavior "intimately associated with the judicial phases" of litigation. See id.; Fry [v. Melaragno], 939 F.2d [832, 838 (9th Cir. 1991)] (activity occurring as part of presentation of evidence is absolutely protected). By contrast, a prosecutor acting in an investigative or administrative capacity is protected only by qualified immunity. Imber, 424 U.S. at 430-31, 96 S.Ct. at 994- 96; Burns v. Reed, [500 U.S. 478], 111 S. Ct. 1934, 1938 n.2, 114 L.Ed.2d 547 (1991). In addition, there may be instances where a prosecutor's behavior falls completely outside the prosecutorial role. See Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 1989). In that case, no absolute immunity is available.

In determining whether absolute immunity is available for particular actions, the courts engage in a "functional" analysis of each alleged activity. See Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 2727, 2734, 73 L.Ed.2d 396 (1982); Rose, 871 F.2d at 343. Three factors determine whether a government official should be given absolute immunity for a particular function: 1) whether there is "a historical or common law basis for the immunity in question;" 2) whether performance of the function poses a risk of harassment or vexatious litigation against the official; and 3) whether there exist alternatives to damage suits against the official as means of redressing wrongful conduct. Mitchell, 472 U.S. at 521-22, 105 S.Ct. at 2812. See Burns, 111 S.Ct. at 1938; Fry, 939 F.2d at 836 n.6. Where absolute immunity does not apply, qualified immunity protects official action, if the officer's behavior was "objectively reasonable" in light of the constitutional rights affected. [Brown v.] Grabowski, 922 F.2d at 1109; Schrob [v. Catterson "Schrob I"], 948 F.2d [1402, 1421 (3d Cir. 1991)]. Objective reasonableness is measured by the amount of knowledge available to the officer at the time of the alleged violation. See Grabowski, 922 F.2d at 111.

The decision to initiate a prosecution is at the core of a prosecutor's judicial role. Imber, 424 U.S. at 430-31, 96 S.Ct. at 994-96. See Rose, 871 F.2d at 343. A prosecutor is absolutely immune when making this decision, even when he acts without a good faith belief that any wrong-doing has occurred. See Rose, 871 F.2d at 347 n. 12; Joseph v. Patterson, 795 F.2d 549, 557 (6th Cir. 1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987). Harm to a falsely-charged defendant is remedied by safeguards built into the judicial system--probable cause hearings, dismissal of the charges--and into the state codes of responsibility. Burns, 111 S.Ct. at 1939, 1942.

969 F.2d at 1463-64.

More recently, the Supreme Court in Buckley v.

Fitzsimmons, 113 S. Ct. 2606 (1993), reaffirmed the principle

that "[a] prosecutor's administrative duties and those

investigatory functions that do not relate to an advocate's

preparation for the initiation of a prosecution or for judicial

proceedings are not entitled to absolute immunity," although

those duties and functions may be protected by qualified

immunity. Id. at 2615. The Court reasoned that, "[w]hen a

prosecutor performs the investigative functions normally

performed by a detective or police officer, it is 'neither

appropriate nor justifiable that, for the same act, immunity

should protect the one and not the other.'" Id. at 2616. The Court also held that the official seeking absolute immunity bears

the burden of showing it is justified for the function in

question. Id. at 2613. Based on that reasoning, the Court in

Buckley held that a prosecutor, who was sued in a § 1983 action

by a released murder suspect, was not entitled to absolute

immunity because he was not acting as an advocate for the State

when he allegedly fabricated evidence against the murder suspect

and made false statements to the press about that evidence. The

Buckley prosecutor thus had to seek protection under the

qualified immunity doctrine. Id. at 2617-18.

With these principles in mind, we examine the

allegations against Prosecutor Bissell to determine whether his

alleged conduct is absolutely immune from liability. As we have

already discussed, Giuffre's complaint charges Bissell with

conspiring with others to deprive him both of his right to

counsel and of his property rights without due process of law.

Giuffre alleges that, as part of that conspiracy, Bissell

rejected as inadequate Giuffre's offer to buy his lots back for

$100,000, although the two lots were ultimately sold for a total

of $20,000 at the public sale and subsequently transferred to two

individuals with alleged ties to the Prosecutor's Office.

The record discloses that: Bissell engaged in a series

of discussions with Chief Thornburg during the forfeiture

discussions with Giuffre on May 11, 1990; he directed Thornburg

to question Giuffre about suspected drug dealers and as to

whether the lots had been purchased with illegal drug proceeds;

he approved the transaction whereby Giuffre forfeited his property to the County and cooperated in an ongoing

investigation, and he also, ultimately, approved the

administrative dismissal of the drug charges against Giuffre. The

evidence further shows that the lots were sold on the

recommendation of Bissell, who never had the property valued by a

licensed appraiser.

Viewing this evidence in the light most favorable to

Giuffre, we cannot hold that Bissell is entitled to absolute

prosecutorial immunity for his role in the sale of Giuffre's

forfeited property by the County. Bissell's actions in the

allegedly improper sale of the property seized by the government

clearly involved administrative duties, for which he is not

entitled to absolute immunity. Buckley v. Fitzsimmons, 113 S.Ct.

at 2615; Schrob I, 948 F.2d at 1419.

Nor do we believe that Bissell has satisfied his burden

of demonstrating that absolute immunity shields him from any

liability for his allegedly improper conduct in the negotiated

transaction with Giuffre. Bissell's alleged conduct cannot

properly be characterized as "acts undertaken by a prosecutor in

preparing for the initiation of judicial proceedings or for

trial," which are therefore entitled to the protection of

absolute immunity. See Buckley v. Fitzsimmons, 113 S.Ct. at 2615. The approval and authorization of a transaction whereby

Giuffre escaped prosecution for serious drug offenses does not

constitute the initiation of a prosecution, for which judicial

safeguards exist to protect the defendant. To the contrary, the

very essence of the transaction with Giuffre was the avoidance of prosecution. Indeed, Bissell concedes that the negotiations with

Giuffre for his cooperation were focused on a dismissal of the

charges, and not on a guilty plea.

Significantly, Bissell points us to no analogous

historical or common-law basis for an absolute immunity for

prosecutors who advise investigators on how to proceed with the

type of informal transaction here, whereby an arrestee in an

"air-tight" drug case is given his freedom in exchange for

cooperation and property.0 See Mitchell, 472 U.S. at 521

("First, in deciding whether officials performing a particular

function are entitled to absolute immunity, we have generally

looked for a historical or common-law basis for the immunity in

question."). We reach this conclusion because, contrary to

Bissell's position, we do not view his approval of the

transaction with Giuffre as analogous to an in rem civil

forfeiture.

In Schrob I, we held that a prosecutor's initiation of

an in rem civil proceeding for the forfeiture of criminal

property was absolutely immune because it was "intimately

connected with the criminal process," and because an owner of the

property would have sufficient opportunity to challenge the

legality of the proceeding. 948 F.2d at 1411-12. Here, the

transaction with Giuffre was never memorialized in writing, in

accordance with the policy of Bissell's office, and was thereby

designed to remain beyond judicial oversight. Consequently,

0 See supra note 2. while the ultimate result of the agreement with Giuffre may have

been the forfeiture of his property, we are not presented here

with an in rem proceeding and its attendant safeguards.

Rather, we view Prosecutor Bissell's act of advising

Chief Thornburg during the challenged forfeiture negotiations as

the functional equivalent of a prosecutor providing legal advice

to police during the investigative stages of a criminal

proceeding, an act which is not absolutely immunized from

liability. Burns v. Reed, 500 U.S. at 496. In Burns v. Reed,

the Supreme Court determined that there was no historical or

common-law support for extending absolute immunity to a

prosecutor's act of counseling police that hypnosis was an

acceptable investigative technique in questioning a mother

suspected of attempting to kill her two sons. While we are

cognizant of the factual distinctions between the instant case,

where Giuffre was under arrest by the Prosecutor's Office, and

Burns v. Reed, where police were questioning an unarrested

suspect, we believe that the rationale of the Court in that case

applies with equal force here.

Burns v. Reed rejected any notion that giving legal advice to investigators is related to a prosecutor's role in

screening cases for prosecution and in safeguarding the fairness

of the criminal judicial process. The Court reasoned that: Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice. . . . Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.

Id. at 495. That reasoning, which we believe applicable here,

was reaffirmed by the Court in Buckley v. Fitzsimmons, 113 S. Ct.

at 2617 ("When the functions of prosecutors and detectives are

the same, as they were here, the immunity that protects them is

the same.").

Bissell also has failed to demonstrate a risk of

vexatious litigation that would not be alleviated by the norm of

qualified immunity. See Burns v. Reed, 500 U.S. at 494

("Absolute immunity is designed to free the judicial process from

the harassment and intimidation associated with litigation.");

see also Mitchell, 521 U.S. at 511 (noting the "obvious risks of

entanglement in vexatious litigation" that arise from "the

judicial or 'quasi-judicial' tasks that have been the primary

wellsprings of absolute immunity"). Nor has Bissell presented us

with any alternative means apart from the instant action for

redressing the wrongful conduct alleged here by Giuffre. See Mitchell, 472 U.S. at 522 ("[M]ost of the officials who are

entitled to absolute immunity from liability are subject to other

checks to help to prevent abuses of authority from going

unredressed.").

Because Giuffre was never formally charged with any

crime, he cannot seek redress through the criminal process for

the wrongful conduct he attributes to Prosecutor Bissell. Nor,

as we have just discussed, are there any safeguards of the

judicial process -- apart from the instant action -- to serve as a restraint on the type of prosecutorial misconduct alleged by

Giuffre. See Burns v. Reed, 500 U.S. at 492 ("'[T]he safeguards

built into the judicial system tend to reduce the need for

private damages actions as a means of controlling

unconstitutional conduct.'") (citation omitted); Mitchell, 472

U.S. at 522-23 ("[T]he judicial process is largely self-

correcting: procedural rules, appeals, and the possibility of

collateral challenges obviate the need for damages actions to

prevent unjust results.").

Prosecutor Bissell thus has failed to carry his burden

of establishing that he was functioning as an "advocate" when he

directed Chief Thornburg to question Giuffre concerning his

future cooperation with investigators, or when he counseled

Thornburg to ensure that illegal proceeds had been used in the

purchase of Giuffre's building lots, all for the alleged purpose

of acquiring property and allowing Giuffre to avoid the judicial

process entirely. Those actions "have no functional tie to the

judicial process," and are not entitled to absolute immunity

merely because they were actions undertaken by a prosecutor. See

Buckley, 113 S. Ct. at 2618. We hold, therefore, that Prosecutor Bissell is not

entitled to absolute immunity, and that he is, at most, entitled

to qualified immunity for his actions. Our decision is informed

by the teaching of the Supreme Court that we must be "'quite

sparing'" in recognizing absolute prosecutorial immunity. Id. at

2613 (citation omitted). V.

The denial of qualified immunity is an issue of law,

also subject to our plenary review. As the Supreme Court has

counseled:

Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suits on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.

Siegert v. Gilley, 500 U.S. at 232.

In determining whether a government official is

entitled to qualified immunity, we must apply the two-part,

objective test enunciated by the Supreme Court in Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982): government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id.; see Abdul-Akbar, 4 F.3d at 201; Burns v. County of Cambria,

971 F.2d at 1021. The "clearly established" standard of Harlow

was delineated by the Supreme Court in Anderson v. Creighton, 483

U.S. 635, 640 (1987): The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Id.

This inquiry requires a threshold determination of

whether the constitutional rights asserted by the plaintiff were

"clearly established" at the time the defendant officials acted,

and whether the plaintiff "has asserted a violation of a

constitutional right at all.'" Acierno, F.3d , 1994 WL

318783 at * 7 (slip op. at 17) (quoting Siegert, 500 U.S. at

232). As we discussed above in deciding the jurisdictional

issues, the district court never determined whether Giuffre

asserted a violation of a constitutional right, let alone a

"clearly established" right. The court's entire discussion of

qualified immunity was: Finally, the individual Defendants argue that they are entitled to qualified immunity. In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court reaffirmed that the test for qualified immunity is based on objective reasonableness -- "whether a reasonable officer could have believed [the challenged action] to be lawful, in light of clearly established law and the information the [] officers possessed." Id. at 641. Plaintiff asserts that Defendants Leffert, Meyers, and DeBella repeatedly denied him the right to counsel, and that Defendants Smith, Thornburg, and Bissell also denied him counsel and unlawfully took his property without due process of law. The Court finds that whether Defendant violated any clearly established laws constitutes a genuine issue of material fact.

Dist. Ct. Op. at 8.

In reviewing the district court's order denying

qualified immunity, we thus must determine whether "'reasonable

officials in the defendants' position at the relevant time could

have believed, in light of what was in the decided case law, that their conduct would be unlawful.'" Abdul-Akbar, 4 F.3d at 202

(quoting Good v. Dauphin County Social Servs. for Children and

Youth, 891 F.2d 1087, 1092 (3d Cir 1989)). Where appropriate,

we may consider whether the constitutional rights asserted by

Giuffre were "clearly established" at the time the individual

officials acted, without initially deciding whether a

constitutional violation was alleged at all. See Acierno,

F.3d , 1994 WL at * 23 n.7 (slip op. at 17 n.7); Rappa v. New

Castle County, 18 F.3d 1043, 1077-79 (3d Cir. 1994); Abdul-Akbar

v. Watson, 4 F.3d 195, 201-05 (3d Cir. 1993). As we stated in

Good, "[t]he ultimate issue is whether, despite the absence of a

case applying established principles to the same facts,

reasonable officers in the defendants' position at the relevant

time could have believed, in light of what was in the decided

case law, that their conduct was lawful." 891 F.2d at 1092. We

note that qualified immunity protects "all but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341 (1986); Schrob I, 948 F.2d at 1421.

Giuffre alleges that his Fifth Amendment right to

counsel was violated when he gave a taped statement to Sergeant

Meyers and Detectives Leffert and DeBella during the custodial

interrogation following his arrest on May 10, 1990. We disagree. Giuffre concedes, as he must, that violations of the

prophylactic Miranda procedures do not amount to violations of

the Constitution itself. Giuffre br. at 26; see, e.g., Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir.) (holding that "the remedy for a Miranda violation is the exclusion from

evidence of any compelled self-incrimination, not a section 1983

action"), cert. denied, 490 U.S. 1091 (1989); Bennett v. Passic,

545 F.2d 1260, 1263 (10th Cir. 1976) ("No rational argument can

be made in support of the notion that the failure to give Miranda

warnings subjects a police officer to liability under the Civil

Rights Act"). The right protected under the Fifth Amendment is

the right not to be compelled to be a witness against oneself in

a criminal prosecution, whereas the "right to counsel" during

custodial interrogation recognized in Miranda v. Arizona, 384

U.S. 436 (1966), is merely a procedural safeguard, and not a

substantive right. Id.

Giuffre contends, however, that the alleged conduct of

Sergeant Meyers and Detectives Leffert and DeBella reached beyond

Miranda and touched upon his substantive Fifth Amendment rights.

His argument is that, although he was advised of, and waived, his

Miranda rights, "Mirandizing was a farce" because the individual

officers never intended to allow him to exercise his right to

remain silent. Giuffre br. at 30. Relying exclusively on the

Ninth Circuit's en banc opinion in Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.), cert. denied, 113 S. Ct. 407 (1992), Giuffre

asserts that the Fifth Amendment violation alleged here sustains

his § 1983 action against the individual officials.

Giuffre's reliance on Cooper is misplaced. The

majority in Cooper broke new ground when it held, in 1992, that a

§ 1983 claim for violation of the Fifth Amendment self-

incrimination clause was stated by allegations that the plaintiff's statements were compelled, even though those

statements were never used against the plaintiff in a court of

law. 963 F.2d at 1242-43. The dissenting judges in Cooper

presented a persuasive argument that the Fifth Amendment

privilege against self incrimination is not violated until

evidence is admitted in a criminal case. See 963 F.2d at 1253-55

(Brunetti, J., dissenting); id. at 1256-57 (Leavy, J.,

dissenting). This disagreement, and subsequent opinions of other

courts of appeal, indicate to us that the law on which Giuffre

relies is not clearly established at this time. Wiley v. Doory,

14 F.3d 993, 997-98 (4th Cir. 1994) (holding that "law not

clearly established even at time of the Cooper decision" and

"remains unsettled" today); see also Mahoney v. Kesery, 976 F.2d

1054, 1062 (7th Cir. 1992) (declining to decide whether view of

en banc Ninth Circuit in Cooper "is sound"). If the law on which

Giuffre pins his claims is not presently clear, it could not have

been clearly established in 1990 when Giuffre's Fifth Amendment

violations were alleged to have occurred.

Furthermore, Cooper was decided under a highly-unusual

set of facts. The defendant law enforcement officers there

admitted that they engaged in a pre-existing interrogation plan

whereby they ignored the suspect's repeated requests to speak

with an attorney, deliberately infringed on his right to remain

silent, and relentlessly interrogated him in an attempt to

extract a confession. 963 F.2d at 1223-32. In contrast, Giuffre

has not alleged, nor have any of the appellant officials

admitted, the application of a pre-existing plan to interrogate him in such a manner as to touch upon his substantive Fifth

Amendment rights.

In light of the law as it existed at the time of the

alleged Fifth Amendment violation, and as it exists today, we

cannot say that a reasonable officer would have known that the

conduct alleged here violated Giuffre's substantive rights under

the Fifth Amendment, even though the officer might have

recognized that the conduct could have been the basis for the

suppression of Giuffre's statement. Because the substantive

Fifth Amendment norms allegedly violated by the individual

officials were not clearly established at the time of the

challenged actions, Giuffre's claims based on violation of his

Fifth Amendment right must fail. Accordingly, Sergeant Meyers

and Detectives Leffert and DeBella are entitled to qualified

immunity on Giuffre's Fifth Amendment claims.

Prosecutor Bissell, Chief Thornburg, and Deputy Chief

Smith also are entitled to partial summary judgment on Giuffre's

claims that their denial of his right to counsel during the May

11, 1990 negotiations violated his rights under the Sixth

Amendment. Giuffre's Sixth Amendment right to counsel had not

attached at the time of the challenged actions of Bissell,

Thornburg, and Smith.

It is settled law that the Sixth Amendment right to

counsel does not attach until the "initiation of adversary

judicial proceedings," Michigan v. Jackson, 475 U.S. 625, 629 (1986), by way of any formal charge, preliminary hearing,

indictment, information, or arraignment. Brewer v. Williams, 430

U.S. 387, 398 (1977); Kirby v. Illinois, 406 U.S. 682, 689

(1972). Giuffre was never formally charged with the drug

offenses, and his only appearance in court resulted in a

postponement to allow him time to retain counsel.

We do not believe, as Giuffre urges, that his informal

transaction with the Prosecutor's Office can properly be

analogized to the formality of the plea bargaining process in

which the result is ultimately submitted to the court. Compare

Santobello v. New York, 404 U.S. 257, 260-61 (1971) (vacating

judgment of conviction and sentencing of defendant whose formal

plea agreement was not honored by prosecutor). Furthermore, we

have held that the remedy for the failure to provide an accused

with the benefit of counsel during plea bargaining is withdrawal

of the guilty plea without inquiry into whether demonstrable harm

resulted. Gallarelli v. United States, 441 F.2d 1402, 1405 (3d

Cir. 1971) ("[T]he guidance of counsel is so essential a

protection for an accused during plea bargaining and in the

making of a decision to plead guilty that a plea entered without

such guidance must be set aside.").

We therefore are not persuaded by Giuffre's argument

that his transaction with the appellant officials was a plea

bargain agreement. It is true that in rem proceedings for the forfeiture of criminal property are "intimately connected with

the criminal process," Schrob I, 948 F.2d at 1411-12, and that a defendant has a right to the assistance of counsel during plea negotiations. See Gallarelli, 441 F.2d at 1405. Those

principles, however, do not amount to a Sixth Amendment violation

in the instant case. That is because, as the officials contend,

these negotiations were not focused on a guilty plea, but rather

on a dismissal of the charges and a forfeiture of Giuffre's

building lots.

Since Giuffre was never formally charged, never

indicted or arraigned, never appeared at a preliminary hearing,

and never entered a guilty plea, his Sixth Amendment right to

counsel never attached. Giuffre therefore had no "clearly

established" right that could have been violated by the actions

of the individual officials under the Sixth Amendment. That

being so, reasonable officials in the situation alleged here

could not have known that their actions violated Giuffre's

"clearly established" Sixth Amendment right to counsel.

Accordingly, Bissell, Thornburg, and Smith are entitled to

qualified immunity with respect to Giuffre's claims premised on a

violation of the Sixth Amendment.

C.

Giuffre also alleges violations of his rights to

substantive and procedural due process under the Fourteenth

Amendment.

We may readily dispose of Giuffre's procedural due

process claim because Giuffre has failed to allege a violation of

clearly established federal law. His argument is predicated on

an alleged violation of the procedures established under New Jersey law governing civil forfeiture. See N.J.S.A. 2C:64-1, et

seq.0 Violations of state law, however, are insufficient to

state a claim under § 1983. Kulwicki, 969 F.2d at 1468. To the

extent that Giuffre claims his procedural due process rights were

violated in the forfeiture negotiations, he has failed to allege

any violation of the United States Constitution. We thus hold

that Prosecutor Bissell, Chief Thornburg, and Deputy Chief Smith

are entitled to qualified immunity as to any claim asserted by

Giuffre that alleges a violation of procedural due process under

the Fourteenth Amendment.

With respect to Giuffre's substantive due process

claim, the individual officials argue that there could have been

no Fourteenth Amendment violation because they had the right to

entertain an agreement whereby Giuffre forfeited the building

lots in exchange for a dismissal of the criminal charges. We

disagree. We believe that the conduct of the individual

officials alleged by Giuffre is sufficiently conscience-shocking

as to state a legally cognizable claim for a violation of

substantive due process under the Fourteenth Amendment. See

Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994) (in banc) ("[T]he substantive component of the Due Process Clause can only

be violated by governmental employees when their conduct amounts

to an abuse of official power that 'shocks the conscience.'");

see also Collins v. City of Harker Heights, Tex., 112 S. Ct.

1061, 1069 (1992) (reaffirming "shock[s] the conscience" standard

0 See supra note 1. in civil damage actions for violations of substantive due

process); Daniels v. Williams, 474 U.S. 327, 331 (1986) (the

substantive component of the Due Process Clause "serves to

prevent governmental power from being 'used for purposes of

oppression'") (citation omitted).

The individual officials' arguments to the contrary are

unpersuasive. They argue that, pursuant to application of the

"relation-back doctrine," title to Giuffre's property vested with

the State prior to any contact between them and Giuffre, and that

they therefore cannot under any circumstances be deemed

unlawfully to have deprived Giuffre of his property. However,

the common law "relation back" doctrine, which is a fictional and

retroactive vesting of title, is not self-executing; rather, it

takes effect only upon the entry of a judicial order of

forfeiture or condemnation. United States v. A Parcel of Land,

Bldgs., Appurtenances & Improvements, 113 S.Ct. 1126, 1135 (1993)

(Opinion of Stevens, J.), affirming 937 F.2d 98 (3d Cir. 1991).

That doctrine is intended to protect the property rights of

innocent purchasers of forfeited land, see 937 F.2d at 102-103;

it does not shield public officials from any possible liability

for a coercive and fraudulent forfeiture of property such as

Giuffre alleges here.

The individual officials further contend that their

conduct, even if unlawful, could not have deprived Giuffre of his

property in violation of the Fourteenth Amendment because their

actions had "no legal effect upon the forfeiture of [Giuffre's]

property." County br. at 35. That argument merely begs the question of whether or not the property legally vested in the

County in the first place. We believe that the actions of the

individual officials certainly would have had a "legal effect" on

the forfeiture if, as Giuffre alleges, the subject lots were not

purchased with illegal drug proceeds, and the officials, knowing

that to be so, coerced Giuffre into making a false statement to

facilitate forfeiture of the lots pursuant to N.J.S.A. 2C:64-1 et

seq. Without any independent, untainted evidence of record that

illegal drug proceeds were, in fact, used to purchase the lots,

the voluntariness of Giuffre's written statement to that effect

is of paramount importance in deciding whether Giuffre was

deprived of his property without due process of law. We cannot

determine that factual question in this interlocutory appeal.

The individual officials, in any event, do not appear

to challenge the principle that a showing of coercive conduct

through threats and intimidation in order to induce a suspect to

make a statement would constitute a violation of Giuffre's right

of substantive due process of law guaranteed by the Fourteenth

Amendment. Rather, the essence of their argument is that they

did not do what Giuffre alleges they did. Their "I didn't do it"

defense to Giuffre's substantive Fourteenth Amendment claim is

not cognizable as a declaration of qualified immunity. Burns v.

County of Cambria, 971 F.2d at 1019. As Judge Easterbrook

reasoned in Elliott v. Thomas, 937 F.2d 338 (7th Cir. 1991),

cert. denied, 112 S. Ct. 1242 (1992): "[T]here is no separate

'right not to be tried' on the question whether the defendants

did the deeds alleged; that is precisely the question for trial. . . . It is impossible to know which 'clearly established' rules

of law to consult unless you know what is going on." Id. at 341.

Hence, we have no jurisdiction to determine whether the

district court properly denied the summary judgment motion of the

individual officials on any of Giuffre's claim predicated on

violations of his substantive right of due process of law under

the Fourteenth Amendment. Burns v. County of Cambria, 971 F.2d

at 1019 (declining to exercise jurisdiction over appeals of

defendant officials who had rested their case on the mere denial

that the conduct alleged by the plaintiffs had occurred); Ryan v.

Burlington County, N.J., 860 F.2d 1199, 1203 n.8 (3d Cir. 1988)

(noting that court will not exercise jurisdiction where "I didn't

do it" defense merely refutes plaintiff's case-in-chief), cert.

denied, 490 U.S. 1020 (1989); see also Abdul-Akbar, 4 F.3d at 201

(noting that the question of qualified immunity often cannot be

resolved adequately until dispositive facts have been presented

at trial and reduced to findings).

Because genuine issues of material fact remain

concerning alleged violations of Giuffre's right of substantive

due process, requiring development of a factual record at trial,

we may not entertain the officials' appeal of the district

court's order as it relates to the denial of immunity for the

substantive claims under the Fourteenth Amendment. V.

Accordingly, we will affirm that portion of the

district court's July 29, 1993 order denying Prosecutor Bissell

absolute immunity. However, we will reverse the July 29, 1993

order of the district court to the extent that it denies the

individual officials qualified immunity from suit on any of

Giuffre's claims alleging violations of the Fifth and Sixth

Amendments and violations of procedural due process under the

Fourteenth Amendment. We will remand that portion of the

district court's order with the direction that the district court

enter partial summary judgment for the individual officials on

only those claims. We dismiss the remainder of the appeal for

lack of appellate jurisdiction, and remand to the district court

for further proceedings consistent with the foregoing opinion.