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, Milli

_______________
__________________
______________
& 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.

Jeffrey

Perschau,

Hampshire

Police

detective

Department.

in

The

the

1983 against

Manchester,

district court

New

granted

summary judgment in favor of Perschau on grounds of qualified

immunity.

divided

Veilleux

panel of

this court

decision, which we now

banc pursuant
____

App.

to our

P. 35(a).

reaching issues

appealed,

We

and on

August

reversed the

withdraw.

30, 1996,

district court's

We ordered a

rehearing en
__

discretionary authority under

now affirm

that may

the district

Fed. R.

court without

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

evening of January 19, 1993,

is what

occurred.

On the

a patrolling police officer

in

Manchester heard the sound of a gunshot coming from Veilleux'

direction.

saw

The officer pursued Veilleux

Veilleux fumbling

pocket.

as if

But when Veilleux

to take

and thought that he

something out

was caught, there

of his

was no gun on

Veilleux' person nor was one found nearby.

Veilleux apparently had been drinking and

the

officer.

officer

and

He was

resisting

then arrested for

arrest.

The

scuffled with

assaulting a police

next

morning,

while

-2-2-

Veilleux

was

arraignment,

at

he

the

was

Manchester

overheard

by

state

court

awaiting

another police

officer

making statements that indicated that Veilleux had had a gun,

specifically, a .32

automatic with hollow-point

This information was relayed

to

the courthouse

and

ammunition.

to Detective Perschau who drove

had Veilleux

brought

to a

private

office for interview.

Veilleux did not have

counsel.

in

an attorney present and requested

Perschau told Veilleux that

arresting

him, [but

only] in

he "wasn't interested

getting

the gun

off the

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

Perschau also

the

told Veilleux that Veilleux

system and should understand

police in recovering the

was familiar with

that any help

he gave the

gun could not be used

against him,

because Perschau had not read him his Miranda rights.

_______

States
______

v.

Veilleux, 846
________

F.

Supp. 149,

152

United
______

(D.N.H. 1994)

(McAuliffe, J.).

Veilleux then

had thrown it

on or

admitted that he

beneath a porch

had had the

pistol and

during the chase,

but

could

not

conducted a

the

recall the

precise

location.

very extensive search

weapon underneath a porch

Police in

and later that

near the site

turn

day found

of the arrest.

The state did not prosecute Veilleux for possessing a weapon,

but the federal government subsequently indicted Veilleux

a felon-in-possession under

18 U.S.C.

-3-3-

922(g)(1).

as

There is

no evidence that Perschau played any

part in the acquisition

of incriminating information by federal authorities.

In

the federal

district

trial to suppress the

police.

Without

required, the

statements

court, Veilleux

handgun and the statements he

deciding

that

Miranda
_______

district court suppressed the

because

circumstances,

"[u]nder

the

defendant's statements

interrogation, was

distorted legal

155.1

overborne by

advice given."

Following

the

was

handgun and the

of

these

were involuntary--his

repeatedly during

the promises

Veilleux, 846
________

suppression

made to

warning

totality

will not to incriminate himself, exercised

the

moved before

order,

made and

F. Supp.

the

at

federal

prosecutor abandoned the case against Veilleux.

Veilleux then

against

Perschau

before

Veilleux

brought the

in the

different

claimed

constitutional

substantive

whether there

federal

district

that

rights

due

same

present section

Perschau

against

process.

had been

judge

1983 action

district court

(Judge

had

Barbadoro).

violated

self-incrimination

Without

deciding

a violation--but

doubts--the district court granted

but

Veilleux'

and

to

definitively

expressing evident

summary judgment in favor

____________________

1The
Miranda
_______

reason

for

apparently

the

stemmed

Supreme Court has carved out

of

Miranda warnings
_______

court's hesitation
from

to

recognition

rely
that

on
the

an exception to the requirement

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

section

1983

immunity

civil

protects

liability

public

so

long

officials

as

they

from

"acted

reasonably under

v.

Bryant, 502
______

settled law in the

U.S.

224, 228

circumstances."

(1991)

Hunter
______

(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

liability but

immunity

from the

Holloway, 510
________

U.S. 510, 514-15

only immunity against civil

trial

itself.

(1994); Hunter, 502

______

Elder
_____

v.

U.S. at

228.

In appraising Perschau's conduct, our focus of attention

is on

of

the self-incrimination claim and

whether

the

confession

the underlying issue

was "involuntary."

There

is

considerable

Miranda
_______

doubt

whether,

violation

standing

constitutional claim

apart

from

Quarles,
_______

alone

would

give

rise

under section 1983.

v. City of Lincoln, 864

________________

denied, 490 U.S.

______

even

F.2d 1436, 1442

to

See, e.g., Warren

_________ ______

(8th Cir.),

1091 (1989); accord Giuffre

______ _______

cert.
_____

v. Bissell, 31
_______

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

The "involuntariness" standard, at least where

no

physical abuse,

totality

of

the

generally depends

circumstances

-5-5-

the

on whether

defendant's

there is

under the

will

was

overborne.

See United States v. Jackson, 918 F.2d

___ ______________
_______

(1st

1990).

Cir.

Perschau

had applied

In

this

case,

relatively

some

236, 242

might think

little pressure,

that

that his

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

Veilleux

was

sound

court's grant of the

of a lawyer

involuntary.

and

amply confirmed

by

later motion to suppress.

the

district

The absence

does not itself automatically render a statement

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

___ _______

On the other hand,

found

to

defendants

police

be

courts have in various circumstances

"involuntary"

in police

pressure or

certain

custody in

following

believed to

be unfair

likely

that the

district court

was

affected by

which undercut Perschau's

the

response to

advice or

court

suppress

statements

in granting

by

fairly modest

promises that

or misleading.2

federal

made

Here,

the

it is

the motion

to

prosecutor's action

earlier representation.

Further,

district courts have enjoyed considerable latitude in

making

their

unique

own

fact-specific

judgment

whether,

circumstances, a statement is "involuntary."

under

____________________

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.

_______
Cir. 1993)

57-60

represented

(10th

(police impliedly promised "lesser punishment and

physical protection");
41,

Strong, 983 F.2d 1540, 1543-44

______

(D.

Me.

United States v. Pinto,

_____________
_____
1987)

(Cyr,

that he could keep

confessed).

-6-6-

C.J.)

671 F. Supp.

(police

defendant out of

officer

jail if he

It is enough to resolve this case that the circumstances

are

unique

Although

and

the

the

right

voluntariness

against

issue

is

self-incrimination

very

close.

is

itself

clearly established, Perschau is "nevertheless . . . entitled

to

qualified

reasonable,

accord
______

immunity

even if

Hegarty v.
_______

1379 (1st Cir.

that

the

[so

long

mistaken."

as

Hunter,
______

Somerset County,
_______________

1995).

qualified

his]

502 U.S.

53 F.3d

Indeed, the Supreme

immunity

protection

defense

to

was

at 229;

1367, 1372-73,

Court has

said

was

designed

but

the

"provid[e]

ample

incompetent

or those who knowingly violate the law."

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

______

all

decision

to

plainly

Malley
______

Under

an

objective

reasonableness standard,

could reasonably believe that

rights

but

offering

him

Perschau

he was not violating Veilleux'

an

attractive

bargain

for

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

purposes

zone

was mistaken; one of

of immunity is to

of protection in close

offer the police

cases."

Roy
___

the cardinal

"a fairly wide

v. Inhabitants of
______________

the City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).

____________________

is enough to dispose of the present case.

Affirmed.
________

This

-7-7-