
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.                                                  ______________                                 ____________________                                 ____________________                                   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                                         -2-                                         -2-            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                                         -3-                                         -3-            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).                                         -4-                                         -4-            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                                         -5-                                         -5-            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).                                         -6-                                         -6-                 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.                 ________                                         -7-                                         -7-
