Veilleux v. Perschau

• Court: Court of Appeals for the First Circuit
• Decided: August 30, 1996
• Docket: 95-2297
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS



                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-2297



                                 MICHAEL D. VEILLEUX,



                                Plaintiff, Appellant,



                                          v.



                         JEFFREY PERSCHAU, DETECTIVE FOR THE

                            MANCHESTER POLICE DEPARTMENT,



                                 Defendant, Appellee.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________

                      Aldrich and Coffin, Senior Circuit Judges,
                                          _____________________

                    Selya, Cyr, Boudin and Lynch, Circuit Judges.
                                                  ______________



                                 ____________________


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                                   OPINION EN BANC

                                 ____________________


Paul J. Garrity for appellant.
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            Dyana J. Crahan with whom Donald  E. Gardner and Devine,  Millimet
            _______________           __________________     _________________

        & Branch were on brief for appellee.
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                                 ____________________



                                  November 20, 1996

                                 ____________________



Per  Curiam.   In the  district court,  Michael Veilleux
                 ___________



            brought  a civil rights action under 42 U.S.C.   1983 against



            Jeffrey  Perschau,   a  detective  in   the  Manchester,  New



            Hampshire  Police  Department.   The  district court  granted



            summary judgment in favor of Perschau on grounds of qualified



            immunity.   Veilleux  appealed,  and on  August  30, 1996,  a



            divided  panel of  this court  reversed the  district court's



            decision, which we now  withdraw.  We ordered a  rehearing en
                                                                       __



            banc pursuant  to our  discretionary authority under  Fed. R.
            ____



            App.  P. 35(a).   We  now affirm  the district  court without



            reaching issues  that may  pose difficult problems  in future



            cases.



                 Taking  the  facts most  favorable  to  Veilleux, as  is



            appropriate  on  summary judgment,  St.  Hilaire  v. City  of
                                                ____________     ________



            Laconia, 71 F.3d 20, 24 (1st Cir. 1995), cert. denied, 116 S.
            _______                                  ____________



            Ct.  2548 (1996),  the following  is what  occurred.   On the



            evening of January 19, 1993,  a patrolling police officer  in



            Manchester heard the sound of a gunshot coming from Veilleux'



            direction.  The officer pursued Veilleux  and thought that he



            saw  Veilleux fumbling  as if  to take  something out  of his



            pocket.   But when Veilleux  was caught, there  was no gun on



            Veilleux' person nor was one found nearby.



                 Veilleux apparently had been drinking and  scuffled with



            the  officer.  He was  then arrested for  assaulting a police



            officer  and  resisting  arrest.   The  next  morning,  while


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Veilleux  was  at   the  Manchester   state  court   awaiting



            arraignment,  he  was  overheard  by  another police  officer



            making statements that indicated that Veilleux had had a gun,



            specifically, a .32  automatic with hollow-point  ammunition.



            This information was relayed  to Detective Perschau who drove



            to  the courthouse  and  had Veilleux  brought  to a  private



            office for interview.



                 Veilleux did not have  an attorney present and requested



            counsel.   Perschau told Veilleux that  he "wasn't interested



            in  arresting  him, [but  only] in  getting  the gun  off the



            street" so that no child could find it and cause itself harm.



            Perschau also  told Veilleux that Veilleux  was familiar with



            the  system and should understand  that any help  he gave the



            police in recovering the  gun could not be used  against him,



            because Perschau had not read him his Miranda rights.  United
                                                  _______          ______



            States  v.  Veilleux, 846  F.  Supp. 149,  152  (D.N.H. 1994)
            ______      ________



            (McAuliffe, J.). 



                 Veilleux then  admitted that he  had had the  pistol and



            had thrown it  on or  beneath a porch  during the chase,  but



            could  not  recall the  precise  location.    Police in  turn



            conducted a  very extensive search  and later that  day found



            the  weapon underneath a porch  near the site  of the arrest.



            The state did not prosecute Veilleux for possessing a weapon,



            but the federal government subsequently indicted Veilleux  as



            a felon-in-possession under  18 U.S.C.   922(g)(1).  There is


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no evidence that Perschau played any  part in the acquisition



            of incriminating information by federal authorities.



                 In  the federal  district  court, Veilleux  moved before



            trial to suppress the  handgun and the statements he  made to



            police.    Without  deciding   that  a  Miranda  warning  was
                                                    _______



            required, the  district court suppressed the  handgun and the



            statements   because   "[u]nder   the   totality   of   these



            circumstances,  defendant's statements  were involuntary--his



            will not to incriminate himself, exercised  repeatedly during



            the  interrogation, was  overborne by  the promises  made and



            distorted legal  advice given."   Veilleux, 846  F. Supp.  at
                                              ________



            155.1     Following  the   suppression  order,  the   federal



            prosecutor abandoned the case against Veilleux.



                 Veilleux then  brought the  present section  1983 action



            against  Perschau  in the  same  federal  district court  but



            before   a  different   district  judge   (Judge  Barbadoro).



            Veilleux   claimed  that  Perschau   had  violated  Veilleux'



            constitutional  rights  against  self-incrimination   and  to



            substantive  due  process.    Without  deciding  definitively



            whether there  had been  a violation--but  expressing evident



            doubts--the district court granted  summary judgment in favor



                                
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                 1The  reason  for  the  court's hesitation  to  rely  on

            Miranda  apparently  stemmed  from  a  recognition  that  the
            _______

            Supreme Court has carved out  an exception to the requirement

            of  Miranda warnings  in situations  where the  questions are
                _______

            "necessary to secure [the police officers'] own safety or the

            safety  of the public."   New York v.  Quarles, 467 U.S. 649,
                                      ________     _______

            658-59 (1984).



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of  Perschau on grounds of qualified immunity.  We agree with



            the district judge's conclusion.



                 Qualified  immunity  protects   public  officials   from



            section  1983   civil  liability  so  long   as  they  "acted



            reasonably under  settled law in the  circumstances."  Hunter
                                                                   ______



            v.  Bryant, 502  U.S.  224, 228  (1991)  (per curiam).    See
                ______                                                ___



            generally Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).
            _________ ________    _________



            The  test is one of objective reasonableness, id. at 641, and
                                _________                 ___



            is applied where possible by the district judge in advance of



            trial, since the immunity is not  only immunity against civil



            liability but  immunity  from the  trial  itself.   Elder  v.
                                                                _____



            Holloway, 510  U.S. 510, 514-15  (1994); Hunter, 502  U.S. at
            ________                                 ______



            228.



                 In appraising Perschau's conduct, our focus of attention



            is on  the self-incrimination claim and  the underlying issue



            of  whether  the  confession  was "involuntary."    There  is



            considerable  doubt  whether,  even  apart  from  Quarles,  a
                                                              _______



            Miranda  violation  standing  alone  would  give  rise  to  a
            _______



            constitutional claim  under section 1983.   See, e.g., Warren
                                                        _________  ______



            v. City of  Lincoln, 864  F.2d 1436, 1442  (8th Cir.),  cert.
               ________________                                     _____



            denied, 490 U.S.  1091 (1989); accord Giuffre  v. Bissell, 31
            ______                         ______ _______     _______



            F.3d 1241, 1256 (3d Cir. 1994).



                 The "involuntariness" standard, at least where  there is



            no  physical abuse,  generally depends  on whether  under the



            totality  of  the  circumstances  the  defendant's  will  was


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overborne.  See United  States v. Jackson, 918 F.2d  236, 242
                        ___ ______________    _______



            (1st  Cir.  1990).   In  this  case,  some  might think  that



            Perschau  had applied  relatively  little pressure,  that his



            goal was admirable, and that the legal advice that he gave to



            Veilleux  was  sound  and  amply confirmed  by  the  district



            court's grant of the  later motion to suppress.   The absence



            of a lawyer  does not itself automatically render a statement



            involuntary.  See Quarles, 467 U.S. at 652, 658-59.
                          ___ _______



                 On the other hand,  courts have in various circumstances



            found  to   be  "involuntary"  certain   statements  made  by



            defendants  in police  custody in  response to  fairly modest



            police  pressure or  following  advice or  promises that  the



            court  believed to  be unfair  or misleading.2   Here,  it is



            likely  that the  district court  in granting  the motion  to



            suppress  was  affected by  the  federal  prosecutor's action



            which undercut Perschau's  earlier representation.   Further,



            district courts have enjoyed considerable latitude in  making



            their  own  fact-specific   judgment  whether,  under  unique



            circumstances, a statement is "involuntary."


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                 2See, e.g., United States v. Walton, 10 F.3d 1024, 1028-
                  _________  _____________    ______

            32  (3d Cir. 1993) (police told defendant he could speak "off

            the cuff"); Griffin v.  Strong, 983 F.2d 1540, 1543-44  (10th
                        _______     ______

            Cir. 1993)  (police impliedly promised "lesser punishment and

            physical protection");  United States v. Pinto,  671 F. Supp.
                                    _____________    _____

            41,  57-60   (D.  Me.  1987)  (Cyr,   C.J.)  (police  officer

            represented  that he could keep  defendant out of  jail if he

            confessed).



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It is enough to resolve this case that the circumstances



            are  unique  and  the  voluntariness  issue  is  very  close.



            Although  the  right  against  self-incrimination  is  itself



            clearly established, Perschau is "nevertheless . . . entitled



            to  qualified   immunity  [so  long  as   his]  decision  was



            reasonable,  even if  mistaken."   Hunter,  502 U.S.  at 229;
                                               ______



            accord  Hegarty v.  Somerset County,  53 F.3d  1367, 1372-73,
            ______  _______     _______________



            1379 (1st Cir.  1995).   Indeed, the Supreme  Court has  said



            that   the  qualified  immunity   defense  was   designed  to



            "provid[e]   ample  protection   to   all  but   the  plainly



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



            v. Briggs, 475 U.S. 335, 341 (1986).
               ______



                 Under  an  objective  reasonableness standard,  Perschau



            could reasonably believe that  he was not violating Veilleux'



            rights  but   offering  him  an  attractive   bargain  for  a



            legitimate purpose, namely, to protect the public against the



            chance that  the gun would be found by a child (or perhaps by



            a criminal).  It makes no difference that a court might later



            conclude that the officer  was mistaken; one of  the cardinal



            purposes  of immunity is to  offer the police  "a fairly wide



            zone  of protection in close  cases."  Roy  v. Inhabitants of
                                                   ___     ______________



            the City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).  This
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            is enough to dispose of the present case.



                 Affirmed.
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