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.
OPINION EN BANC
Paul J. Garrity for appellant.
Dyana J. Crahan with whom Donald E. Gardner and Devine, Millimet
& Branch were on brief for appellee.
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
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."
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
is enough to dispose of the present case.
Affirmed.
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