40 F.3d 527 (2nd Cir. 1994), 662-664, Weaver v. Brenner

Docket Nº:662-664, Dockets 93-7383, 93-7429, 93-7491.
Citation:40 F.3d 527
Party Name:Bernard H. WEAVER, Jr., Plaintiff-Appellee-Cross-Appellant, v. Robert BRENNER; Beth Gable, also known as Beth Cozzolino, Individually and as Assistant District Attorney for the County of Columbia, Defendants, David W. Harrison, Individually and as Investigator with the Office of the Columbia County District Attorney and as a New York State Police O
Case Date:October 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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40 F.3d 527 (2nd Cir. 1994)

Bernard H. WEAVER, Jr., Plaintiff-Appellee-Cross-Appellant,


Robert BRENNER; Beth Gable, also known as Beth Cozzolino,

Individually and as Assistant District Attorney

for the County of Columbia, Defendants,

David W. Harrison, Individually and as Investigator with the

Office of the Columbia County District Attorney and as a New

York State Police Officer; John J. Holt, Individually and

as a New York State Police Investigator; Paul Czajka,

Individually and as District Attorney for the County of

Columbia, Defendants-Appellants-Cross-Appellees.

Nos. 662-664, Dockets 93-7383, 93-7429, 93-7491.

United States Court of Appeals, Second Circuit

October 26, 1994

Argued Dec. 6, 1993.

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Frank K. Walsh, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of the State of New York, of counsel), for defendant-appellant John J. Holt.

James A. Resila, Albany, NY (Carter, Conboy, Bardwell, Case, Blackmore & Napierski, of counsel), for defendants-appellants David W. Harrison and Paul Czajka.

Mark T. Walsh, Albany, NY (Michael P. Ravalli, Gleason, Dunn, Walsh & O'Shea, of counsel), for plaintiff-appellee Bernard H. Weaver, Jr.

Before: OAKES, KEARSE, and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

One of the principal issues we deal with on this appeal is what conduct violates the Fifth Amendment. That Amendment safeguards a suspect's right to remain silent. This right is based on the painful lessons of history, among the most prominent of which was the Spanish Inquisition, and it teaches that to be silent is safe and to speak risks betrayal of oneself.

Defendants Paul Czajka, David W. Harrison, and John J. Holt appeal from a portion of the April 19, 1993 order of the United States District Court for the Northern District of New York (McAvoy, J.). That order denied defendant Czajka's motion, as district attorney for Columbia County, New York, and defendants Harrison and Holt's motion, as County and State police investigators, respectively, for summary judgment based on their assertions of qualified immunity, insofar as plaintiff's cause of action is based on his allegation that his statements were allegedly coerced in violation of the Fifth and Fourteenth Amendments. Plaintiff Bernard H. Weaver, Jr., cross-appeals from a portion of the same order that granted defendants' motions for summary judgment based on a finding of qualified immunity for plaintiff's arrest and prosecution. For the reasons that follow, we affirm in part and dismiss in part with respect to the appeal; the cross-appeal is dismissed.


Bernard H. Weaver, the plaintiff in this case, is a teacher of 20 years standing. During the 1978-79 school year, while teaching the fifth grade in the Pine Planes Central School District in Pine Planes, New York, he befriended Robert Brenner, a student in his class. Brenner came from a broken and unstable home. When he was 15 years old, he told Weaver that his mother had become abusive towards him, and that he planned to run away on his 16th birthday. Later that year Brenner confided in Weaver that his mother had threatened to kill him. On March 23, 1984, two days before his 16th birthday, Brenner again told Weaver that he planned on leaving home on his birthday. Weaver volunteered to ask Brenner's grandmother to intercede and, if matters did not sort themselves out, to help Brenner himself.

On March 25 Brenner left home and went to stay with Weaver at Weaver's parents' home. Those living arrangements continued for the next 17 months, until August of 1985. Following a complaint by Brenner's mother, the School District investigated Weaver for his role in Brenner's leaving home. Eventually Weaver was served with disciplinary charges for conduct unbecoming a teacher. Brenner testified under oath at hearings on the charges, and specifically denied having had any sexual relations with Weaver. Brenner also signed an affidavit to the same effect. The administrative panel conducting the hearing into Weaver's fitness to serve as a school teacher terminated Weaver's employment. The Appellate Division unanimously confirmed Weaver's discharge as a teacher. See Weaver v. Board of Educ., 129 A.D.2d 711, 514 N.Y.S.2d 473 (2d Dep't), appeal denied, 70 N.Y.2d 607, 519 N.Y.S.2d 1031, 514 N.E.2d 389 (1987).

Three years later, on October 23, 1988, Brenner contacted the State Police and signed a statement for defendant, Columbia County Investigator Harrison, alleging that Weaver had committed acts of sodomy on him when he was underage. Specifically, Brenner declared that on the night he moved in with Weaver--March 25, 1984--Weaver fondled him, and that for the next three

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months, a couple of times a week, they engaged in oral sex, and that once during this period they engaged in anal sex.

Defendant State Police Investigator Holt assisted County Investigator Harrison with the investigation. Each of them recorded one of two telephone calls Brenner made at their instigation to Weaver: first, in November 1988 and later in February 1989. During these telephone conversations Brenner confronted Weaver with specific acts of sexual conduct between them. Although Weaver did not specifically deny the allegations, he explained to Brenner that he thought Brenner was confusing some of his experiences of abuse involving family members with his relations with Weaver. Weaver said he did not believe any of their contact was sexual. Yet, some of Weaver's statements during these recorded conversations were incriminating. For example, he objected to Brenner's having sexual relations with women at college and Brenner responded "but you and I did," to which Weaver replied, "but I was not happy with that." Weaver later explained in an affidavit that one night he was awakened by Brenner "poking around [Weaver's] back side with his erect penis." Weaver claims to have terminated Brenner's activity immediately, and explained to him that this was not something he wanted to participate in and that he did not approve of Brenner's conduct.

On February 21, 1989 Investigators Harrison and Holt, in plainclothes, went to Weaver's home to question him. Although believing they had sufficient evidence to arrest him, the officers did not obtain an arrest warrant, nor did they give Weaver his Miranda warnings prior to questioning him. See People v. Weaver, 177 A.D.2d 809, 810, 576 N.Y.S.2d 424, 425 (3d Dep't 1991).

How long the interview between the investigators and Weaver lasted and what occurred during it is a matter of dispute. Weaver insists it was intimidating and threatening. He was told that if he cooperated, the investigators might be able to keep the story from the press. Investigator Harrison produced notes from the interview indicating that when he questioned Weaver about fondling Brenner on the March night when Brenner moved in, Weaver responded, "Well it wasn't like that. I can't deny this. We did go to bed together during the time he was staying with me at my parents. I've been in bed with him on camping trips when I took some boys." The notes also reflect that when Weaver was asked about having anal sex with Brenner, he replied he did not think he should answer that question. Weaver then asked if he could have a copy of the taped telephone conversations to give to his attorney. Because Weaver mentioned an attorney, Officer Harrison then said he had to stop the interview. After terminating the interrogation, Officer Harrison read Weaver his Miranda warnings and placed him under arrest for sodomy in the third degree.

Before the grand jury Officer Harrison testified in detail regarding the confession he obtained from Weaver. On April 26, 1989 Weaver was charged in an indictment with seven counts of third degree sodomy. After a hearing, the County Court suppressed the earlier November 1988 taped telephone conversation as inaudible; it also suppressed some incriminating statements given by Weaver during the February 21st interview with the two defendant investigators. In addition, the County Court dismissed the first count in the indictment as barred by the statute of limitations. On appeal from these rulings, the Appellate Division affirmed. See People v. Weaver, 177 A.D.2d at 809-10, 576 N.Y.S.2d at 424-25.

The Appellate Division found the investigating officers knew they had sufficient evidence to arrest Weaver prior to questioning him, that Weaver was not in a position to leave the interview, and that he was therefore entitled to Miranda warnings prior to being interrogated. The court opined Weaver's interview by the defendants was "designed to deliberately subjugate" Weaver to police authority and to "extract a confession" without the benefit of Miranda warnings. 177 A.D.2d at 810, 576 N.Y.S.2d at 425. Following this ruling, the district attorney, defendant Czajka, certified to the Appellate Division that the suppression order which had been affirmed on appeal rendered the remaining proof insufficient as a matter of law to obtain a conviction. On April 2, 1992

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the County Court signed an order dismissing the indictment against Weaver.

Weaver filed the instant Sec. 1983 civil rights suit on February 20, 1992. In his complaint he alleged 11 causes of action against the defendants, only three of which are relevant to this appeal--false arrest, malicious prosecution and unlawful coercion of a confession. Defendants moved for summary judgment on these three claims, which the district court granted in part, and denied in part. First, Judge McAvoy addressed their merits to determine whether there were material...

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