Veilleux v. Perschau

• Court: District Court, D. New Hampshire
• Decided: November 15, 1995
• Docket: CV-94-265-B
• Status: Published

Opinion

Veilleux v . Perschau CV-94-265-B 11/15/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Veilleux

v. Civil N o . 94-265-B Detective Jeffrey Perschau

O R D E R

Plaintiff Michael Veilleux was previously charged with

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

This charge was ultimately dismissed prior to trial after the

court suppressed certain statements Veilleux made to the police

and certain physical evidence obtained by the police as a result

of Veilleux's statements. Veilleux argues in this action that he

is entitled to damages from the officer who obtained the

statements because, he contends, the officer violated his rights

under the Constitution's Fifth and Fourteenth Amendments.

Defendant Jeffrey Perschau, alleging that he is entitled to

qualified immunity, moves for summary judgment. I. FACTS1

During the evening of January 1 9 , 1993, Manchester Police Officer William Davies heard what he believed to be a gunshot as he was turning a corner on routine patrol. He looked in the direction of the sound and saw a man, later identified as Michael Veilleux, run across the street and into an area of three-decker apartment houses. The officer gave chase over roughly a three block area, by car and then on foot. At one point he saw Veilleux in an alley, near a dumpster, fumbling with his pocket as if to take something out. Veilleux fled when he saw that the officer was in pursuit, and disappeared over a backyard fence. Officer Davies eventually found him a short distance away, lying on the ground next to a vehicle parked at the back of 113 Spruce Street. Veilleux had been drinking heavily and he scuffled with the officer while being arrested. No firearm was found on Veilleux.

Suspecting that Veilleux had been in possession of a firearm, Officer Davies and other officers at the scene searched

1 Veilleux does not dispute the factual findings made by Judge McAuliffe in his March 1 5 , 1994 order suppressing certain statements and evidence in Veilleux's criminal trial. Therefore, I reproduce those facts verbatim, except that I have substituted "Veilleux" for references to "defendant." 2 the area near the place of arrest and along the route Veilleux

had taken. The search lasted approximately one hour, but no

weapon was found.

The next morning, Veilleux was taken to the Manchester

District Court for arraignment on charges of assaulting a police

officer and resisting arrest. While in the holding cell at the

courthouse Veilleux asked the guard, Manchester Police Officer

William Van Mullen, for permission to make a telephone call.

Officer Van Mullen took Veilleux from the holding cell to a

public telephone in the hallway nearby. Van Mullen stayed with

Veilleux for obvious security reasons, and watched and heard him

call information to obtain the number of the GTE Sylvania company

in Manchester. Van Mullen then watched and heard Veilleux dial

the phone and ask to speak to Diane Hanneford, his girlfriend,

who worked at GTE Sylvania. Van Mullen overheard Veilleux say:

"Make a stolen gun report -- think about it -- was in car glove

compartment -- in case a kid gets ahold of it."

After he was arraigned, Veilleux was returned to the holding

cell. He engaged in a conversation with one of the other

detainees, which also was overheard by Van Mullen. Veilleux

said: ".32 automatic, I'm glad they did not find i t . Was headed

from Mike's Pub to British American -- has hollow points, too."

3 Officer Van Mullen called police headquarters and reported

what he had overheard to Detective Sergeant Jeffrey Perschau.

Perschau reviewed the investigative reports filed by Officer

Davies the night before, and then spoke to Davies about the case.

Concerned that a loaded weapon could well be in an area

accessible to children and others, Perschau drove to the

courthouse where Veilleux was being detained. Sergeant Perschau

had Veilleux brought to a private office, where they met alone,

without counsel present.

Perschau told Veilleux that he wanted to get the gun off the

street before a child found i t . Veilleux professed ignorance.

Perschau persisted, telling Veilleux that he "wasn't interested

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

Transcript, Perschau Testimony. Sergeant Perschau acknowledged,

at the hearing, that he in fact had no intention of charging

Veilleux with any crime related to the gun if he cooperated.

When Veilleux continued to profess ignorance, Perschau said that

since Veilleux had been through the system many times before, he

knew that his statements could be used against him only if

Perschau first advised him of his Miranda rights, which, Perschau

pointed out, he had not done and had no intention of doing.

Veilleux relented. He told Perschau that since he was not going

4 to be charged, he would help the police find the gun. Veilleux

then admitted possession, described the pistol, told Sergeant

Perschau it was in a black case, and told him he had thrown it on

or under a porch during the chase.

Veilleux claimed he could not describe the exact location of

the pistol, so Perschau took him to the scene in an effort to

refresh his memory, where, in Veilleux's presence, another search

was conducted along his route the evening before. Several

Manchester police officers assisted in that search. Veilleux

claimed continued confusion about the exact location of the

weapon (due to his drinking, the darkness, and the chase), and he

provided little additional help. The officers searched for about

two hours, without success. Veilleux was released on bail.

Later that day, when Sergeant Perschau went off duty, he

briefed the new watch commander, Lieutenant Stewart, about the

matter. Stewart in turn briefed Officer Suckley, who was about

to go on duty and was assigned to that area of the city. Officer

Suckley also participated in the unsuccessful initial search for

the weapon following Veilleux's arrest. Lieutenant Stewart asked

Officer Suckley to search the area again, pointing out that

Veilleux said the gun was thrown on or under a porch. Suckley

and his partner drove to the area and began another search.

5 Under the rear porch at 113 Spruce Street, near the site of Veilleux's arrest, Officer Suckley discovered the pistol.2 It was beyond arm's reach, and Suckley was only able to retrieve it by using his police baton to pull it out.3 Officer Suckley agreed that, consistently [sic] with Veilleux's statement, the pistol obviously had been tossed under the porch.

II. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate i f , after reviewing the

facts in the light most favorable to the nonmoving party, "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(c); Woods v . Friction Materials, Inc., 30 F.3d 255,

259 (1st Cir. 1994). A "genuine" issue is one "that properly can

2 The pistol was not in a black case as Veilleux had described. However, a black case had been taken from Veilleux upon his arrest and inventoried at the police station the night before. 3 Officer Suckley testified that the distance between the ground and porch floor was about 12 to 18 inches, effectively preventing him from crawling under.

6 be resolved only by a finder of fact because [it] may reasonably

be resolved in favor of either party." Anderson v . Liberty

Lobby, Inc., 477 U.S. 2 4 2 , 250 (1986); accord Garside v . Osco

Drug, Inc., 895 F.2d 4 6 , 48 (1st Cir. 1990). A "material issue"

is one that "might affect the outcome of the suit" under the

applicable legal standard. Anderson, 477 U.S. at 248. The

burden is upon the moving party to show the lack of a genuine,

material factual issue. Finn v . Consolidated Rail Corp., 782

F.2d 1 3 , 15 (1st Cir. 1986). When a motion for summary judgment

is properly supported, the burden shifts to the nonmovant to show

that a genuine issue exists. Donovan v . Agnew, 712 F.2d 1509,

1516 (1st Cir. 1983). If the nonmovant fails to offer sufficient

factual support to counter the movant's proffer on an element for

which the nonmovant bears the burden of proof at trial, all other

factual issues become immaterial, and the movant is entitled to

summary judgment. Smith v . Stratus Computer, Inc., 40 F.3d 1 1 ,

12 (1st Cir. 1994), cert. denied, 115 S . C t . 1958 (1995). B. Qualified Immunity Standard

In Harlow v . Fitzgerald, 457 U.S. 8 0 0 , 818 (1982), the

Supreme Court recognized that public officials performing

discretionary functions are entitled to qualified immunity from

suit for violations of federal law "insofar as their conduct does

7 not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." 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." Siegert v . Gilley, 500 U.S. 226,

232 (1991). Thus, a court may determine that a defendant is

entitled to qualified immunity if either the plaintiff fails to

properly assert and support a claim based on the violation of a

constitutional right, or the court concludes that the law on

which plaintiff's claim was based was not clearly established

when the defendants acted. Id. See also Febus-Rodriguez v .

Betancourt-Lebron, 14 F.3d 8 7 , 91 (1st Cir. 1994) (holding that

as a predicate to the qualified immunity inquiry, "a plaintiff

must establish that a particular defendant violated the

plaintiff's federally protected rights.").

The resolution of a qualified immunity defense presents a

legal question for the court. Elder v . Holloway, 114 S . C t .

1019, 1023 (1994); Whiting v . Kirk, 960 F.2d 2 4 8 , 250 (1st Cir.

1992). Moreover, since the immunity is an immunity from suit

rather than merely a defense to liability, it is imperative that

8 such claims be resolved at the earliest possible date after suit

is commenced. Siegert, 500 U.S. at 232-33. Thus, I will

determine Perschau's entitlement to immunity on his motion for

summary judgment unless factual disputes material to the issue require resolution by the jury before I can resolve the legal

questions his motion presents. See Prokey v . Watkins, 942 F.2d

6 7 , 73 (1st Cir. 1991).

III. DISCUSSION

After considering the evidence in the light most favorable

to the plaintiff, I determine that no material facts remain in

dispute and that Veilleux is entitled to judgment as a matter of

law.

To the extent that Veilleux has a claim against anyone based

upon a violation of his constitutional rights, that claim lies

against someone other than Perschau.4 Perschau's failure to read

Veilleux his Miranda rights cannot serve as the basis for any

damage claim against Perschau pursuant to 42 U.S.C. § 1983

4 I assume without deciding that Judge McAuliffe correctly concluded that Veilleux's statements were involuntary because the statements were induced by Perschau's misrepresentations concerning Veilleux's rights and by Perschau's promises that Veilleux's statements would not be used against him.

9 because "the remedy for a Miranda violation is the exclusion from

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

action."5 See Warren v . Lincoln, 864 F.2d 1436, 1442 (8th C i r . ) ,

cert. denied, 490 U.S. 1091 (1989); see also Giuffre v . Bissell,

31 F.3d 1241, 1255 (3d Cir. 1994). Nor do the facts of this case

suggest the kind of egregious police behavior that other circuits

have deemed to be actionable on a substantive due process theory

because the police misconduct "shocks the conscience." See Mahan

v . Plymouth County House of Corrections, 64 F.3d 1 4 , 17 n.4 (1st

Cir. 1995) (threat to keep the defendant in a holding cell until

he confessed is not so egregious as to give rise to a substantive

due process violation). Perschau's error in this case was to

promise something that he could not deliver. It is a routine and

proper law enforcement practice to enter into cooperation

agreements with criminal defendants pursuant to which the

government agrees not to use a defendant's statements against him

in exchange for the defendant's continued cooperation. No one

could suggest that such agreements violate a defendant's

constitutional rights when a cooperation agreement is entered

5 I do not decide whether, in fact, Perschau was obligated to give Veilleux his Miranda warnings under the circumstances of this case.

10 into voluntarily6 and the government keeps its promises. If

anyone violated Veilleux's rights, it was the government

prosecutors who attempted to use Veilleux's statements against

him in violation of Perschau's contrary representations. Since

there is no evidence in the record to suggest that Perschau

played any role in the federal government's later attempt to use

Veilleux's statements against him, Veilleux's claim against

Perschau must fail.

Veilleux's claim is also defective because he offers no

evidence to suggest that the statements Perschau elicited from

him were ever used against him. The Fifth Amendment's self-

incrimination clause protects a person only from the use of a

compelled statement. Weaver v . Brenner, 40 F.3d 5 2 7 , 534 (2d

Cir. 1994); see also, Giuffre v . Bissell, 31 F.3d at 1255-56

(officer entitled to qualified immunity because law recognizing

Fifth Amendment violation even if statements are not used was not

"clearly established"); Wiley v . Doory, 14 F.3d 993, 997-98 (4th

Cir. 1994), but see Cooper v . Dupnik, 963 F.2d 1220 (9th C i r . ) ,

cert. denied, 113 S . C t . 407 (1992) (coerced confession can

6 Veilleux does not contend that his agreement to cooperate was involuntary. Instead, he contends that the statements he made pursuant to that agreement were involuntary because Perschau did not keep his promise not to use the statements against him.

11 violate Fifth Amendment even if statement is not used). There is

no evidence in the record to suggest that Veilleux's statements

were ever used against him, either directly or indirectly. In

the absence of such evidence, his claim cannot survive Perschau's

motion for summary judgment.

IV. CONCLUSION

In summary, Perschau is entitled to qualified immunity

because Veilleux has failed to properly support his claim for

damages against Perschau. Defendant's motion for summary

judgment (document n o . 23) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge November 1 5 , 1995

cc: Paul Garrity, Esq. Donald Gardner, Esq.