for malicious prosecution under § 1983, the Second Circuit's requirement of injury of constitutional dimensions, beyond that required to satisfy the elements of the state law tort of malicious prosecution, would be eviscerated. Without any indication that plaintiff was subject to restrictions on her liberty--such as travel restrictions or posting bail--in violation of her Fourth Amendment right to be free from unreasonable seizure of her person, she may not maintain a § 1983 claim for malicious prosecution.
Accordingly, we grant defendants' motions for summary judgment dismissing plaintiff's claim for malicious prosecution.
3. Coercion of Confession
Plaintiff does not explicitly state a claim under § 1983 for coercion of her confession, but she has pled factual allegations that would support such a claim. Under the liberal approach to pleading taken by the Federal Rules of Civil Procedure, we must, if possible, construe the complaint to give effect to all of its averments. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1286, at 555-56 (1990). Therefore, we construe the complaint to include a claim for coercion of plaintiff's confession.
Plaintiff's allegations that her confession was coerced state a claim under § 1983 for violation of her Fifth Amendment privilege against self-incrimination. See Weaver v. Brenner, 40 F.3d 527, 535-36 (2d Cir. 1994). That right attaches during custodial interrogations of a criminal suspect and is violated by the use of a compelled statement against the declarant at any criminal proceeding. See id., at 534-35.
The Second Circuit, in an opinion addressing whether the use of a coerced confession during pre-trial proceedings violates the declarant's Fifth Amendment rights, has emphasized that the use of a confession against a declarant in any criminal proceeding violates the declarant's Fifth Amendment rights because it could lead to the infliction of criminal penalties against him. See, 40 F.3d at 535-36. By this reasoning, it seems clear to us that plaintiff's confession was used against her in a criminal proceeding. The felony information and Whitmore's supporting deposition referred to the confession as part of the factual basis for the grand larceny charge against plaintiff. Although the District Attorney's office did not pursue the case, the charge, which remained pending for approximately one year before it was dismissed, could have led to the infliction of criminal penalties against plaintiff.
Genuine questions of material fact exist, however, with respect to whether the interview conducted by Whalen and Connelly was custodial. The protection of the Fifth Amendment applies only to custodial interrogations and not to questioning to which a suspect submits voluntarily. See id., at 534. In the absence of a formal arrest, the test used in determining whether a suspect is in custody when questioned is an objective one that focuses on whether a reasonable person in the suspect's position would have understood himself to be subject to restraints comparable to those associated with formal arrest. See United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992). In determining whether a person is in custody, courts look to whether the suspect cooperated willingly with the authorities, whether the setting in which the questioning took place was intimidating and whether any behavior, such as verbal threats or intimidating physical gestures, by the questioners reasonably suggested that the suspect could not terminate the interview. See id., at 98-99.
Given the numerous facts in dispute concerning what happened during Whalen and Connelly's questioning of plaintiff, we cannot decide on summary judgment whether plaintiff was in custody. We do not know whether Whalen or Connelly told plaintiff that she could not leave the conference room until she confessed, whether Connelly yelled at her and slammed his fists on the table when informing her that she couldn't leave or whether Whalen or Connelly threatened her. We also do not know whether plaintiff was aware that Whalen was a police officer.
This fact is material because a reasonable person would be far more likely to feel subject to restraints comparable to those associated with formal arrest when questioned by Connelly and a police officer than when questioned by Connelly and a "friend." See id., at 99 (finding that suspect was less likely to be subject to coercive pressures if he failed to notice investigating officer's credentials). In short, genuine questions of material fact exist regarding whether plaintiff was in custody or whether she voluntarily cooperated with Whalen and Connelly. Assuming that plaintiff was in custody during the interview and that her Fifth Amendment rights were implicated, there are also, as we discussed above, material questions of fact regarding whether Whalen and Connelly coerced plaintiff's confession.
Section 1983 claims based on coercive interrogation techniques may also be analyzed under the Due Process Clause of the Fourteenth Amendment in order to ascertain whether the suspect's statements were made voluntarily.
See Weaver, 40 F.3d at 536. Under this test, the court must examine all the circumstances surrounding the questioning to determine whether police pressure overcame the suspect's will. See id.; Mitchell, 966 F.2d at 100 (applying same standard to conduct of federal agents under Due Process Clause of Fifth Amendment). More specifically, plaintiff may be entitled to recover on the ground that she was tricked into making her confession. See Mitchell, 966 F.2d at 100. In order to prevail on such a claim, she must prove by clear and convincing evidence that Whalen or Connelly affirmatively misled her as to the true nature of their investigation. Furthermore, their misrepresentations must have materially induced plaintiff to make inculpatory statements. See id. Plaintiff has alleged that Connelly promised her that she would not be prosecuted if she confessed to taking the money. There is no evidence to the contrary except for Whalen and Connelly's denials. As we may not make credibility determinations on summary judgment, we merely note that plaintiff has produced some evidence that she was affirmatively misled by Whalen and Connelly. Once again, we find that a reasonable jury could conclude that plaintiff's confession was coerced.
II. Qualified Immunity
Defendant Whalen also seeks summary judgment on the ground of qualified immunity. Police officers, like other public officials, "are immune from § 1983 civil rights suits . . . when their 'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Weaver, 40 F.3d at 532-33 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Even when the right in question is clearly established at the time that the alleged unlawful conduct occurred, an official is still entitled to immunity where it was objectively reasonable for him to believe that the conduct in question was lawful. See Weaver, 40 F.3d at 533.
There is no room for dispute that on July 3, 1992, it was clearly established that the authorities could not lawfully coerce a confession from plaintiff or use it against her in a criminal proceeding. Hence, Whalen is entitled to qualified immunity only if it was objectively reasonable for him to believe that his actions were lawful. Because Whalen and Niemann vehemently dispute what happened at the interview, a factual determination of Whalen's conduct is necessary before we can decide whether it was objectively reasonable for him to believe that his conduct was lawful. See Weaver, 40 F.3d at 537.
Likewise, it was similarly well-established on July 3, 1992, that plaintiff had the right to be free from imprisonment, arrest and prosecution without probable cause. Whalen is entitled to qualified immunity on these claims only if it was objectively reasonable for him to believe that he had probable cause for arresting and prosecuting plaintiff. Because genuine questions of material fact exist concerning the lawfulness of plaintiff's confession, we cannot decide this question on summary judgment.
We need not address Whalen's qualified immunity argument in the context of plaintiff's claims for false arrest and false imprisonment arising out of the interview. Obviously, if Whalen had probable cause to question plaintiff, it was objectively reasonable for him to believe that action was lawful. See Singer, 63 F.3d at 118 (finding of probable cause "subsumes the issue of immunity").
For the foregoing reasons, we grant defendant Whalen's motion for summary judgment dismissing the claims brought against him in his official capacity. We deny defendants' motions for summary judgment on plaintiff's claims under 42 U.S.C. § 1983 for false imprisonment and false arrest based on plaintiff's formal arrest, but we grant defendants' motions to the extent that plaintiff's claims for false arrest and false imprisonment are based on the fact that she was interviewed. We grant defendants' motions for summary judgment dismissing plaintiff's claim for malicious prosecution. We construe the complaint to include a claim under 42 U.S.C. § 1983 for coercion of plaintiff's confession in violation her Fifth or Fourteenth Amendment rights, and we deny defendants' motions for summary judgment on that claim.
Date: January 2, 1996
White Plains, New York
William C. Conner
Senior United States District Judge