1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-4-1994

Guiffre v. Bissell, et al.

Precedential or Non-Precedential:

Docket 93-5541

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Recommended Citation

"Guiffre v. Bissell, et al." (1994). 1994 Decisions. Paper 103.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

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No. 93-5541 

 

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JAMES J. GIUFFRE, 

 

v. 

NICHOLAS BISSELL; RICHARD THORNBURG; 

ROBERT SMITH; RUSS LEFFERT; SAM DEBELLA; 

RICHARD MEYERS; COUNTY OF SOMERSET, 

 Appellants

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On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil No. 92-02014) 

 

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Argued Monday, May 2, 1994 

BEFORE: GREENBERG and GARTH, Circuit Judges, 

and ROBRENO, District Judge0

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(Opinion filed August 4, 1994) 

 

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 Scott D. Rodgers (Argued) 

 Welaj, Miller & Robertson 

 21 North Bridge Street 

 Post Office Box 1034 

 Somerville, New Jersey 08876 

 

 Attorney for Appellants 

 

0* Honorable Eduardo C. Robreno, United States District Court 

for the Eastern District of Pennsylvania, sitting by designation. 
 Frank P. Arleo (Argued) 

 Arseneault, Donohue, Sorrentino & Fassett 

 560 Main Street 

 Chatham, New Jersey 07928 

 Attorney for Appellee 

 

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 OPINION OF THE COURT 

 

 ---------- 

 

GARTH, Circuit Judge: 

 This appeal requires us to revisit the doctrine of 

absolute and qualified immunity in order to determine if we may 

review at this time the district court's order which denied 

summary judgment to the individual defendants. Insofar as the 

appellee Giuffre's complaint alleges violations of his Fifth, 

Sixth, and procedural Fourteenth Amendment rights, we hold that 

the individual defendants are entitled to qualified immunity, and 

to that extent reverse the district court's order. We also hold 

that the district court correctly denied absolute immunity at 

this time for Somerset County Prosecutor Nicholas Bissell. 

Without expressing any views as to the merits of Giuffre's 

remaining claims, we dismiss the balance of the appeal for lack 

of appellate jurisdiction. 

I. 

 The appellants, Prosecutor Bissell and five of his 

current and former investigative officers (collectively, "the 

appellant officials"), and the County of Somerset ("the County"), 
appeal the district court's order denying their motion for 

summary judgment, which was brought against the appellee, James 

J. Giuffre. 

 Giuffre's claims against the County and the appellant 

officials arose from Giuffre's arrest on May 10, 1990 following 

an official investigation by the Somerset County Prosecutor's 

Office and other investigative authorities of an alleged drug 

conspiracy. Within 24 hours of his arrest, and without 

representation by counsel, Giuffre conveyed ownership to the 

County of two building lots he owned in neighboring Hunterdon 

County. That transaction was ostensibly authorized under the 

forfeiture provisions of N.J.S.A. 2C:64-10 because Giuffre signed 

a written statement admitting that the two building lots were 

purchased in part with illegal drug proceeds. The forfeited 

building lots were sold seven months later at public auction, and 

the drug charges against Giuffre were administratively dismissed 

by the Prosecutor's Office on October 31, 1991, after Giuffre 

cooperated in an ongoing drug investigation. Although the 

 

0 N.J.S.A. 2C:64-1, in relevant part, provides: 

a. Any interest in the following shall be subject 

to forfeiture and no property right shall exist in 

them: 

(1) Controlled dangerous substances . . .. shall 

be designated prima facie contraband. 

* * * 

(4) Proceeds of illegal activities, including, but 

not limited to, property or money obtained as a 

result of the sale of prima facie contraband as 

defined by subsection a.(1) . . .. 
statute of limitations at this juncture has yet to run, Giuffre 

still has not been indicted.0 

 On May 7, 1992, Giuffre filed the instant action, 

seeking compensatory and punitive damages against the County and 

against the appellant officials, both in their official and 

individual capacities, for violations of 42 U.S.C. § 1983, the 

United States Constitution, and New Jersey law.0 In his 

 

0At oral argument, all counsel admitted that, despite the virtual 

conclusive proof that Giuffre was involved in drug distribution, 

Giuffre had not been indicted. Counsel for Giuffre readily 

acknowledged that there was "never any question" that Giuffre had 

cocaine in his house at the time of his arrest. Transcript of 

Oral Argument at 30. The suggestion was voiced by the attorney 

for the County and appellant officials that, although the 

criminal case against Giuffre was "air-tight," the County 

Prosecutor's Office "felt that it would look like vindictive 

prosecution" if it indicted Giuffre after he commenced this civil 

action. Id. at 21-23. The County thus made a "strategical 

decision at the beginning of [this civil] case" not to indict 

Giuffre so as to avoid any "inconsisten[cy in] establishing 

during the trial that there was, in fact, a deal that is 

enforceable." Id. at 22. 

0 The eight-count complaint names as defendants: Somerset 

County Prosecutor Nicholas Bissell; the Prosecutor's chief of 

detectives, Richard Thornburg; deputy chief of detectives, Robert 

Smith, Sergeant Richard Meyers and Detective Samuel DeBella of 

the Prosecutor's Office; and Warren Township police detective 

Russell W. Leffert, who was working with the Prosecutor's 

investigators. 

 Counts 1 and 2 of Giuffre's complaint allege that the 

appellant officials conspired to deprive Giuffre and actually 

deprived Giuffre of his constitutional and civil rights in 

violation of 42 U.S.C. §§ 1983 and 1985. Count 3 alleges that 

the officials conspired to violate Giuffre's rights under the 

United States Constitution. Count 4 alleges that the County had 

a de facto policy of targeting for criminal investigation and 

prosecution individuals who owned substantial assets, and of 

obtaining those assets through fraud and duress, and in violation 

of their constitutional and civil rights, and that that alleged 

policy was maintained and implemented by Prosecutor Bissell, 

Chief Thornburg, and other members of the Prosecutor's staff. 

Count 5 asserts violations of 42 U.S.C. §§ 1983 and 1986 by 
complaint against the County and the officials, Giuffre also 

sought judgment rescinding the sale of his forfeited lots, and a 

declaratory judgment that the officials conspired to violate 

and/or violated his constitutional and civil rights, and 

conspired to deprive him of his property through fraud, duress 

and without due process of law. 

 The County and the officials moved for summary 

judgment, arguing, among other things, that the individual 

officials were entitled to qualified and/or absolute immunity. 

Their summary judgment motion was supported by the depositions of 

the appellant officials and other witnesses who denied the 

allegations in Giuffre's complaint. In opposition to summary 

judgment, Giuffre presented his own deposition evidence, which 

created a dispute of fact over the circumstances under which he 

conveyed title to his two building lots. After considering the 

parties' arguments and conflicting evidence, the district court 

on July 29, 1993 denied the defendants' motion for summary 

judgment. 

 The district court determined that summary judgment was 

inappropriate because Giuffre's deposition testimony raised 

genuine issues of material fact regarding: (1) the appellant 

officials' allegedly coercive and unconstitutional conduct toward 

Giuffre; (2) the existence of an alleged civil rights conspiracy; 

 

virtue of the alleged failure of Bissell and Thornburg to train 

and supervise properly their subordinates. 

 In Counts 5, 6, and 7, Giuffre asserts claims against the 

officials for alleged violations of New Jersey law. 
(3) the existence and effects of the County's alleged policy of 

targeting criminal defendants who owned substantial assets, and 

(4) the alleged failure of the County to train and supervise 

properly the appellant officials. The district court did not 

discuss at length the immunity defenses raised by the individual 

officials. The court ruled that Prosecutor Bissell was not 

entitled to absolute prosecutorial immunity because Bissell's 

actions could be characterized as investigatory. It also ruled 

that none of the individual officials was entitled to qualified 

immunity because Giuffre had raised a genuine issue of material 

fact as to whether any clearly established laws had been violated 

by the officials. 

 On appeal, the County and the officials contend, as 

they did before the district court, that they were entitled to 

summary judgment because: (1) Giuffre has failed to state a 

viable cause of action under § 1983 for violations of his rights 

under the Fifth, Sixth, and Fourteenth Amendments of the United 

States Constitution; (2) the officials lacked the requisite 

personal involvement and specific conduct to be held liable under 

§ 1983 for federal constitutional violations or under the New 

Jersey Tort Claims Act for state law violations; (3) the 

individual officers are shielded, in any event, from suit on 

Giuffre's federal and pendent state claims under principles of 

absolute and/or qualified immunity; and (4) there is insufficient 

evidence to hold the County liable under any of the legal 

theories stated by Giuffre. 
 We will affirm that portion of the July 29, 1993 order 

of the district court denying Prosecutor Bissell absolute 

immunity, and we will reverse that order only to the extent that 

it denies the officials qualified immunity for alleged violations 

of the Fifth and Sixth Amendments, and the procedural due process 

guarantee of the Fourteenth Amendment. We will dismiss the 

balance of this appeal for lack of appellate jurisdiction. 

II. 

 The County and the appellant officials urge us to 

reverse the district court's denial of their motion for summary 

judgment. Generally, we ordinarily have no jurisdiction to 

review orders denying summary judgment because such orders are 

not final within the requirements of 28 U.S.C. § 1291. W.D.D., 

Inc. v. Thornbury Township, 850 F.2d 170, 171 (3d Cir.) (in 

banc), cert. denied, 488 U.S. 892 (1988). 

 The Supreme Court has held, however, that an order 

denying qualified or absolute immunity, to the extent that the 

order turns on an issue of law, is immediately appealable under 

the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 

511, 530 (1985). That is because the immunity doctrine does not 

serve merely as a public official's defense to liability; rather 

it shelters that official from having to stand trial. This 

immunity from suit is lost when a case is erroneously permitted 

to go to trial. Id. at 526-27; Brown v. Grabowski, 922 F.2d 

1097, 1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). We 
thus have appellate jurisdiction to consider the immunity issues 

raised by the individual officials. 

A. 

 Up to this point, Giuffre's claims for declaratory 

judgment and for judgment rescinding the forfeiture of his lots 

have not been ruled upon. In addition, the district court has 

refused to certify as final its order denying summary judgment on 

Giuffre's claims for money damages, pursuant to 28 U.S.C. 

§1292(b).0 Giuffre's damage claims, however, are joined in his 

complaint with an ostensible claim for prospective injunctive 

relief. We have held in Prisco v. United States Dep't of 

Justice, 851 F.2d 93, 94 (3d Cir. 1988), cert. denied sub nom. 

Smith v. Prisco, 490 U.S. 1089 (1989), that the inclusion of a 

 

0 28 U.S.C. § 1292(b) provides: 

When a district judge, in making in a civil action 

an order not otherwise appealable under this 

section, shall be of the opinion that such order 

involves a controlling question of law as to which 

there is substantial ground for difference of 

opinion and that an immediate appeal from the 

order may materially advance the ultimate 

termination of the litigation, he shall so state 

in writing in such order. The Court of Appeals 

which would have jurisdiction of an appeal of such 

action may thereupon, in its discretion, permit an 

appeal to be taken from such order, if application 

is made to it within ten days after the entry of 

the order: Provided, however, That application 

for an appeal hereunder shall not stay proceedings 

in the district court unless the district judge or 

the Court of Appeals or a judge thereof shall so 

order. 
viable claim for prospective equitable relief bars interlocutory 

review of a district court's denial of immunity. 

 Our Prisco opinion explained why the Mitchell

collateral order doctrine is not available for a joinder of 

claims for injunctive relief and money damages: 

The marginal benefit to a governmental official from an 

interlocutory review of a ruling that proof of damages 

should not be heard is so slight that it cannot 

outweigh the systemic harms from permitting piecemeal 

interlocutory review of discrete issues in a case 

which, even against that official, will be ongoing. 

Id. at 96. Although we alone among the courts of appeals adhere 

to such a rule, we nevertheless are bound to follow Prisco in 

those cases where a plaintiff states a colorable claim for 

injunctive relief in addition to a claim for damages. See, e.g., 

Burns v. County of Cambria, 971 F.2d 1015, 1019 (3d Cir. 1992), 

cert denied sub nom. Roberts v. Mutsko, 113 S. Ct. 1049 (1993); 

see also Internal Operating Procedures, United States Court of 

Appeals for the Third Circuit, Rule 9.1 ("The holding of a panel 

in a reported opinion is binding on subsequent panels . . . . in 

banc consideration is required [to overrule such a holding]."). 

 Proper application of the Prisco rule requires an 

initial determination of whether a claim for injunctive relief 

is, on its face, colorable. Acierno v. Cloutier, F.3d , 

1994 WL 318783 * 8 (slip op. at 21) (3d Cir. July 7, 1994) 

("Prisco allows us to 'examine[] the complaint carefully to 

determine whether any of its allegations would permit proof of 

facts warranting any prospective relief against [the defendant 

officials].'") (quoting Prisco, 851 F.2d at 96). In the instant 
case, Giuffre's complaint clearly does not state a colorable 

claim for prospective equitable relief. 

 It is obvious to us that Giuffre's claim for rescission 

of the forfeiture of his property to the County is not viable. 

Giuffre's counsel admitted as much at oral argument when he 

acknowledged that Giuffre "would have a tough time rescinding" 

sale of the lots because "at least one [of the lots] is in the 

hands of a bonafide purchaser." Transcript of Oral Argument at 

45-46. Moreover, as the appellant officials point out, Giuffre 

has failed to name as defendants those individuals whom he claims 

conspired with the officials to acquire ownership of his building 

lots. Even if the failure to name those individuals was not 

fatal to a claim of rescission, it is the County and not the 

officials that would be subject to the prospective relief sought 

by Giuffre. Giuffre transferred title of the two building lots 

to the County, and the County sold the lots at public auction. 

 Hence, the individual officials could not rescind the 

sale, in any event, and would be liable only for compensatory and 

punitive damages. Indeed, counsel conceded at oral argument 

that Giuffre is seeking only money damages in his action against 

the County and the officials.0 As such, the relief sought by 

 

0At oral argument, the following exchange took place: 

THE COURT: [A]m I correct in saying that what Mr. 

Guiffre wants is the money for the two lots? 

[COUNSEL FOR GIUFFRE]: Essentially, there are some 

other minor damage components, but essentially, that's 

-- 

THE COURT: They're all translatable into money? 
Giuffre is purely legal, and cannot be cast as prospective or 

equitable in character. 

 Because the actual remedy sought by Giuffre does not 

involve prospective, equitable relief, we hold that the rule of 

Prisco is inapplicable here. Acierno, F.3d , 1994 WL 

318783 at * 9 (slip op. at 22) (holding that the lack of any 

viable available injunctive relief against defendant officer, as 

alleged in the plaintiff's complaint, entitled the defendant to 

immediate review of denial of summary judgment on immunity 

grounds). Without immediate appellate review, the officials in 

the instant case would be effectively deprived of their immunity 

from suit -- their "right not to stand trial" -- on Giuffre's 

federal claims for damages, merely because Giuffre has included 

in his complaint what he himself concedes is a nonactionable 

claim. 

 To hold otherwise might encourage future plaintiffs to 

add frivolous equitable claims to their damage claims so as to 

defeat the immediate appeal of orders denying official immunity. 

See Schrob v. Catterson ("Schrob II"), 967 F.2d 929, 940-41 (3d 

Cir. 1992) (noting that other courts of appeal which have 

rejected Prisco have expressed such a concern); cf. Scott v. 

Lacy, 811 F.2d 1153, 1154 (7th Cir. 1992) ("plaintiffs who wished 

to harass officials to travail would need only demand equitable 

 

[COUNSEL FOR GIUFFRE]: Correct. 

Transcript of Oral Argument at 45. 
relief, defeating the defendants' opportunity to obtain prompt 

review"). 

B. 

 Giuffre argues, however, that we are without 

jurisdiction to hear the instant appeal because the district 

court denied immunity due to the existence of material disputes 

of fact. Contrary to Giuffre's position, the immediate 

appealability of orders denying immunity is not automatically 

defeated merely because some issues of material fact remain. 

Kulwicki v. Dawson, 969 F.2d 1454, 1460 (3d Cir. 1992) ("Insofar 

as there may be issues of material fact present in a case on 

appeal, we would have to look at those facts in the light most 

favorable to the non-moving party."). In a non-Prisco case such 

as this one, we have jurisdiction to determine, as a matter of 

law, whether the individual officials' alleged conduct violated 

any "clearly established" constitutional rights. Mitchell, 472 

U.S. at 530; Brown v. Grabowski, 922 F.2d at 1109. 

 Here, our task is somewhat complicated by the fact that 

the district court failed to make the threshold determination of 

whether the officials were entitled to immunity in the face of 

Giuffre's factual allegations. The district court never 

determined, as it was obliged to do, "'whether the legal norms 

allegedly violated by the defendant were clearly established at 

the time of the challenged actions.'" Brown v. Grabowski, 922 

F.2d at 1109 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1981)). Indeed, the district court did not even identify the 
specific constitutional rights allegedly violated by the 

individual officials. It merely concluded "that whether 

Defendants violated any clearly established laws constitutes a 

genuine issue of material fact." Dist. Ct. Slip Op. at 8. 

 As part of our plenary review of a district court's 

immunity determination, we have jurisdiction to determine whether 

the plaintiff has asserted a violation of a constitutional right 

under 42 U.S.C. § 1983. See Siegert v. Gilley, 500 U.S. 226, 231 

(1991); D.R. by L.R. v. Middle Bucks Area Vocational Technical 

Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (in banc), cert. denied, 

113 S. Ct. 1045 (1993). That is because "'[a] necessary 

concomitant to the determination of whether the constitutional 

right asserted by a plaintiff is 'clearly established' at the 

time the defendant acted is the determination of whether the 

plaintiff has asserted a violation of a constitutional right at 

all.'" D.R. by L.R., 972 F.2d at 1368 (quoting Siegert v. 

Gilley, 500 U.S. at 232) (emphasis added in D.R. by L.R.). 

 Before us, Giuffre identifies the federal civil rights 

and constitutional claims against the individual officials in 

Counts 1, 2, and 3 of his complaint as sounding in the Fifth, 

Sixth, and Fourteenth Amendments. We have jurisdiction to 

consider the individual officials' assertion of entitlement to 

immunity to suit on those claims, but only to the extent that we 

can make that determination as a matter of law.0 See Burns, 971 

F.2d at 1019. 

 

0To the extent that the complaint charges the official defendants 

with liability in their official capacity, we understand that the 
 As we have previously indicated, however, we are 

without jurisdiction to review the denial of summary judgment on 

the remaining claims raised by Giuffre against the County and the 

appellant officials. Those remaining claims are not subject to 

immunity under the Mitchell doctrine, and thus cannot be reviewed 

on interlocutory appeal. 

 The denial of summary judgment on Giuffre's claims in 

Counts 4 and 5 of his complaint, seeking damages against 

Prosecutor Bissell and Chief Thornburg for failing to train and 

supervise subordinates in the Prosecutor's Office, is not 

immediately appealable. That is because the County is the real 

party in interest with respect to these claims, and the County 

cannot assert a qualified immunity defense so as to qualify, 

under Mitchell, for review of the district court's summary 

judgment ruling. Brown v. Grabowski, 922 F.2d at 1105; see also

Owen v. City of Independence, 445 U.S. 622, 638, 650 (1980) 

(holding that § 1983 does not accord municipal corporations a 

qualified immunity for their good-faith constitutional 

violations). 

 That portion of the interlocutory order of the district 

court denying the appellant officials immunity on Giuffre's 

pendent state claims, contained in Counts 6, 7, and 8 of 

Giuffre's complaint, also is unreviewable at this time. As we 

explained in Brown v. Grabowski, decisions concerning immunity 

 

practical effect of that characterization is to charge the County 

with liability. As discussed in text, the County, as the real 

party in interest, does not have a qualified immunity defense 

available to it. 
from suit on federal claims fall within the small class of 

appealable decisions -- carved out by the Supreme Court in Cohen 

v. Beneficial Indus. Loan Corp, 337 U.S. 541, 546 (1949) -- that 

"'finally determine claims of right separable from, and 

collateral to, rights asserted in the action.'" 922 F.2d at 1106 

(quoting Mitchell, 472 U.S. at 527-29). The denial of a claim of 

qualified immunity premised upon state law, on the other hand, is 

appealable only if the state has conferred an underlying 

substantive immunity from suits arising from the performance of 

official duties. 922 F.2d at 1106-07. Because the New Jersey 

Tort Claims Act provides a government official with immunity from 

liability, not immunity from suits arising from the performance 

of official duties, we must dismiss for lack of appellate 

jurisdiction that portion of the officials' appeal which is based 

on immunity under the New Jersey Tort Claims Act. Id. at 1108-

09. 

 Accordingly, the scope of our jurisdiction for present 

purposes is limited to a review of the denial of absolute 

immunity for Prosecutor Bissell and the denial of qualified 

immunity for Bissell and the other individual officials on the 

claims against them for alleged violations of Giuffre's Fifth, 

Sixth, and Fourteenth Amendment rights. 

III. 

 Because an understanding of the factual record is 

essential to our determination of whether we can, as a matter of 

law, decide the individual officials' entitlement to immunity on 
Giuffre's Fifth, Sixth, and Fourteenth Amendment claims, we 

detail the circumstances surrounding Giuffre's arrest and the 

forfeiture of his lots. 

 The record reveals that the Somerset County 

Prosecutor's Office obtained court authorization to wiretap 

Giuffre's telephone after a confidential informant identified 

Giuffre as a drug dealer. Following the interception of numerous 

calls relating to illegal drug activities, and the 

contemporaneous surveillance of suspected drug transactions, a 

team of County investigators and police officers led by Sergeant 

Richard A. Meyers of the County Prosecutor's Office executed a 

search warrant for Giuffre's person and house on May 10, 1990. 

The authorized search of Giuffre's residence resulted in the 

seizure of approximately 17 grams of cocaine, 15 grams of 

marijuana, drug paraphernalia, and Giuffre's hunting gun and 

knife collections. Also seized were financial records and 

documents, including deeds for the two building lots owned by 

Giuffre. 

 Following his arrest, Giuffre was transported to a 

satellite office of the County Prosecutor. There, Giuffre was 

given his Miranda warnings and was questioned by Sergeant Meyers 

and Warren Township police detective Russell W. Leffert, who was 

working with the Prosecutor's Office in the investigation. 

Detective Samuel J. DeBella of the Prosecutor's Office also was 

present during this interrogation. By all accounts, Giuffre 

indicated his willingness to cooperate with the investigators. 

According to Giuffre, however, he wanted to talk with his 
attorney, and his repeated requests to do so, he claims, were 

either ignored or denied by Sergeant Meyers and Detectives 

Leffert and DeBella. 

 Giuffre waived his right to have counsel present, he 

contends, only because he "was afraid that if I tried to push 

that right that harm would come to me." App. 292. Specifically, 

Giuffre alleges that during almost three hours of questioning, 

the officers "threatened that they were going to lock my 

girlfriend up, take her [handicapped] son away. . . . [i]f my 

dogs barked at them they were going to shoot the dogs," and that, 

if Giuffre did not cooperate, he would be put in jail "with a 

bunch of guys that believe I informed on them." App. 289. 

Meyers, Leffert, and DeBella maintain that they never threatened 

Giuffre; that Giuffre never asked to speak with an attorney; and 

that Giuffre voluntarily waived his Miranda rights and gave a 

taped statement. 

 After giving the taped statement, Giuffre was processed 

on charges of possession of cocaine, possession with intent to 

distribute cocaine, and conspiracy to distribute cocaine. He was 

then transported to the Somerset County Jail, where on the orders 

of the Prosecutor's Office, Giuffre alleges, he was again denied 

any contact with his attorney. 

 On the following day, May 11, 1990, Giuffre was 

transported to the Somerset County Police Academy. At his 

request, he met there with Robert A. Smith, the Prosecutor's 

deputy chief of detectives, and discussed the possibility of 

becoming a confidential informant. Giuffre recalls Deputy Chief 
Smith initiating a conversation about Giuffre's assets. Giuffre's 

recollection is that he informed Smith that he had paid 

approximately $175,000 for the two Hunterdon County building 

lots, and that Smith suggested that, "You may be able to get out 

of this if you cooperate and you're willing to sign these lots 

over to the county." App. 239. 

 Giuffre was then taken to see Richard Thornburg, the 

chief of detectives for the County Prosecutor's Office. Chief 

Thornburg advised Giuffre that the County had the authority to 

seize his house, his car, and any personal belongings used in 

illegal drug transactions. According to Giuffre's version of 

their conversation, Chief Thornburg made an offer: if Giuffre 

turned over his two building lots and arranged "one good deal" as 

an informant, Giuffre's car and other personal items would be 

returned to him; he would be released on his own recognizance 

with no bail; he would not be indicted; the criminal charges 

would be dismissed, and therefore he would keep his professional 

insurance and builder's licenses. App. 317-18. 

 Giuffre claims that Chief Thornburg gave him an hour to 

make up his mind, but forbad him from speaking first with his 

attorney. Giuffre further alleges that Chief Thornburg 

threatened that, if Giuffre refused to cooperate, his home and 

the building lots would be forfeited; his fiancee would be put 

out of the house they shared and possibly face criminal charges 

herself; he would "rot in jail for a year" before going to trial, 

and he would lose his professional licenses. App. 312. 
 At a second meeting with Chief Thornburg, also on May 

11, 1990, Giuffre signed over the deeds for the two lots for $1. 

Giuffre remembers being "floored" when he was asked at that 

meeting to sign a prepared statement attesting to the fact that 

he had bought the lots with illegal drug proceeds. App. 329. He 

insists that he made it clear to Chief Thornburg and Detective 

Leffert that "not one cent of illegal money [was] used to buy 

those lots." Id. Giuffre also alleges that he again demanded, 

and was again denied, his right to have a lawyer present. Giuffre 

nevertheless signed the statement averring that illegal drug 

proceeds were used to purchase the property. App. 330-31. 

 Chief Thornburg and Deputy Chief Smith together offer a 

significantly different version of the circumstances surrounding 

the forfeiture of the building lots. They deny having had any 

prior knowledge of the lots before Giuffre proposed substituting 

those lots in lieu of the forfeiture of his house and car. They 

were amenable to Giuffre keeping his car and his house, they 

contend, only because that would facilitate Giuffre's 

effectiveness as an informant. As Deputy Chief Smith explained 

in his deposition, their feeling was that Giuffre "needed the 

vehicle to cooperate with," and it was better for Giuffre "to do 

his dealings out of, his house, instead of going to a motel," 

because "[p]eople get nervous from motels." App. 450. Chief 

Thornburg maintains that Giuffre voluntarily acknowledged that 

the lots were purchased in part from the proceeds of illegal drug 

distribution, and that he never made any promises that Giuffre 

would not be prosecuted if he cooperated and turned over the 
building lots. Thornburg denies that Giuffre ever requested an 

attorney at any time during their discussions. He also denies 

ever threatening harm to Giuffre, Giuffre's fiancee, or Giuffre's 

dogs. 

 Prosecutor Bissell apparently had no direct contact 

with Giuffre on May 11, 1990. He did, however, direct Chief 

Thornburg to ask Giuffre certain questions during the 

negotiations which resulted in the forfeiture of Giuffre's 

building lots. Bissell wanted to know which individuals Giuffre 

could identify as possible targets of an official investigation, 

and also "whether or not the lots had somehow been involved in 

the drugs, in the money, did any of the money from the drugs, was 

that used to purchase the lots?" App. 362-65. Bissell testified 

at his deposition that he was assured by Chief Thornburg that 

"some or all of the money used [to purchase] the lots was -- came 

from drugs." Id. Although initially inclined against entering 

into any kind of agreement with Giuffre, Bissell says he later 

"acquiesced against [his] better judgment" at the urging of Chief 

Thornburg, who felt "that Giuffre was someone who could provide 

valuable information." App. 361. 

 After Giuffre signed over the deeds for the building 

lots, he was released on his own recognizance. Two days later, 

Giuffre told attorney Richard Gordeck, a childhood acquaintance, 

about the forfeiture of the lots. He also told Grodeck that the 

Prosecutor's Office had promised to dismiss the criminal charges 

if he cooperated as a confidential informant and produced one 
defendant of substance, but that he was warned against discussing 

the matter with an attorney. 

 Grodeck subsequently met with Chief Thornburg and 

Assistant Somerset County Prosecutor James R. Wronko, and 

attempted to "reconstruct the deal because Giuffre wanted the 

lots back." App. 417. Chief Thornburg states that he told 

Grodeck that the County was "willing to give the lots back" and 

to "start from scratch," meaning that Giuffre would be prosecuted 

on the criminal charges. App. 417. However, Grodeck does not 

recall Thornburg saying that the deal could be rescinded. In any 

event, at the meeting Grodeck focused on having the agreement 

with Giuffre put in writing, rather than pressing for a return of 

the lots, because Giuffre's ultimate goal was a dismissal of the 

criminal charges. The transaction with Giuffre was never 

formally memorialized, however, because the County Prosecutor's 

Office had a policy of not putting confidential informant 

agreements in writing. 

 Immediately thereafter, Giuffre alleges that Chief 

Thornburg and Assistant Prosecutor Wronko told him to get rid of 

his lawyer "or the deal is off." App. 1122. Giuffre complied 

and, on June 1, 1990, he appeared without counsel before the 

Somerset County Superior Court for an initial hearing on the drug 

charges. The court postponed the hearing and gave Giuffre a week 

to hire a new attorney. Giuffre claims that members of the 

County Prosecutor's Office then arranged for him to be 

represented by a public defender, notwithstanding his 

protestations that he did not qualify as an indigent because he 
owned assets. Chief Thornburg, Assistant Prosecutor Wronko, and 

Detective DeBella each deny any involvement in Giuffre's decision 

to discharge his privately-retained counsel and his application 

for representation by a public defender. Giuffre, in any event, 

never appeared again in court to answer the drug charges against 

him. 

 Following his arrest, Giuffre began cooperating with 

County investigators, meeting regularly with Detective DeBella 

and others from the Prosecutor's office.0 Giuffre alleges that 

during this time, in July 1990, Prosecutor Bissell indicated to 

him that he would have the first opportunity to buy back his 

building lots, but his offer of $100,000 cash for the lots was 

later rejected by Bissell as insufficient. Giuffre further 

alleges that he was also told, by Detective DeBella, that the 

County had a policy of targeting individuals with substantial 

amounts of cash and/or assets. App. 335-37. Detective DeBella 

admitted in his deposition testimony that, in fact, he had told 

Giuffre that "we don't want people just for the drugs, we have to 

 

0While working with the County Prosecutor's Office, Giuffre 

surreptitiously taped his conversations with investigators. Those 

tapes were turned over to his public defender, who in turn sent 

them to the New Jersey Attorney General's Office. A subsequent 

investigation by the Attorney General's office into Giuffre's 

allegations of official misconduct by Prosecutor Bissell, members 

of the County Prosecutor's office, and others, was closed without 

further action after state authorities failed to uncover any 

evidence corroborating Giuffre's allegations. App. 979. All 

relevant documents were thereafter forwarded by the New Jersey 

Attorney General's Office to the United States Attorney's Office 

for New Jersey, which also conducted an inquiry into the same 

allegations raised by Giuffre. Id. 

 
get people with assets." App. 526-29. DeBella, however, denied 

any knowledge of a County policy of targeting individuals with 

substantial assets, explaining that his remarks to Giuffre meant 

only that "if you take away [a drug dealer's] money, then he 

can't buy drugs, he can't distribute drugs." App. 528-29. 

 On October 31, 1991, Giuffre was granted an 

administrative dismissal of the outstanding criminal charges, 

ostensibly because Giuffre's cooperation had led to the 

prosecution of four other criminal defendants for drug-related 

offenses. In the meantime, the County had authorized the sale of 

Giuffre's two forfeited lots at a public sale, notice of which 

was published. Each lot sold for $10,000. 

IV. 

 In considering the merits of the officials' appeal of 

the district court's order denying immunity, we first address the 

question of whether Prosecutor Bissell was entitled to absolute 

immunity. Our review of this legal issue is plenary, and we must 

view the evidence and the inferences to be drawn from that 

evidence in the light most favorable to Giuffre. Kulwicki, 969 

F.2d at 1461. 

 The district court determined that Prosecutor Bissell 

was not entitled to absolute immunity "to the extent that [his] 

actions can be characterized as investigative functions." Dist. 

Ct. Slip Op. at 8. Bissell challenges that determination, 

claiming that he was completely uninvolved with the investigative 

procedures leading up to consummation of the property forfeiture 
deal with Giuffre, and that his conduct "constituted a core 

prosecutorial function; i.e., the evaluation of information in 

furtherance of deciding the appropriate course of criminal 

prosecution." County rpl.br. at 10. 

 In Kulwicki, we set forth the law concerning the 

immunity of prosecutors from suit under § 1983: 

 Prosecutors are subject to varying levels of 

official immunity. Absolute immunity attaches to all 

actions performed in a "quasi-judicial" role. Imber v. 

Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 

L.Ed.2d 128 (1976). This includes activity taken while 

in court, such as the presentation of evidence or legal 

argument, as well as selected out-of-court behavior 

"intimately associated with the judicial phases" of 

litigation. See id.; Fry [v. Melaragno], 939 F.2d 

[832, 838 (9th Cir. 1991)] (activity occurring as part 

of presentation of evidence is absolutely protected). 

By contrast, a prosecutor acting in an investigative or 

administrative capacity is protected only by qualified 

immunity. Imber, 424 U.S. at 430-31, 96 S.Ct. at 994-

96; Burns v. Reed, [500 U.S. 478], 111 S. Ct. 1934, 

1938 n.2, 114 L.Ed.2d 547 (1991). In addition, there 

may be instances where a prosecutor's behavior falls 

completely outside the prosecutorial role. See Rose v. 

Bartle, 871 F.2d 331, 346 (3d Cir. 1989). In that 

case, no absolute immunity is available. 

 In determining whether absolute immunity is 

available for particular actions, the courts engage in 

a "functional" analysis of each alleged activity. See

Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 

2727, 2734, 73 L.Ed.2d 396 (1982); Rose, 871 F.2d at 

343. Three factors determine whether a government 

official should be given absolute immunity for a 

particular function: 1) whether there is "a historical 

or common law basis for the immunity in question;" 2) 

whether performance of the function poses a risk of 

harassment or vexatious litigation against the 

official; and 3) whether there exist alternatives to 

damage suits against the official as means of 

redressing wrongful conduct. Mitchell, 472 U.S. at 

521-22, 105 S.Ct. at 2812. See Burns, 111 S.Ct. at 

1938; Fry, 939 F.2d at 836 n.6. 
 Where absolute immunity does not apply, qualified 

immunity protects official action, if the officer's 

behavior was "objectively reasonable" in light of the 

constitutional rights affected. [Brown v.] Grabowski, 

922 F.2d at 1109; Schrob [v. Catterson "Schrob I"], 948 

F.2d [1402, 1421 (3d Cir. 1991)]. Objective 

reasonableness is measured by the amount of knowledge 

available to the officer at the time of the alleged 

violation. See Grabowski, 922 F.2d at 111. 

 The decision to initiate a prosecution is at the 

core of a prosecutor's judicial role. Imber, 424 U.S. 

at 430-31, 96 S.Ct. at 994-96. See Rose, 871 F.2d at 

343. A prosecutor is absolutely immune when making 

this decision, even when he acts without a good faith 

belief that any wrong-doing has occurred. See Rose, 

871 F.2d at 347 n. 12; Joseph v. Patterson, 795 F.2d 

549, 557 (6th Cir. 1986), cert. denied, 481 U.S. 1023, 

107 S.Ct. 1910, 95 L.Ed.2d 516 (1987). Harm to a 

falsely-charged defendant is remedied by safeguards 

built into the judicial system--probable cause 

hearings, dismissal of the charges--and into the state 

codes of responsibility. Burns, 111 S.Ct. at 1939, 

1942. 

969 F.2d at 1463-64. 

 More recently, the Supreme Court in Buckley v. 

Fitzsimmons, 113 S. Ct. 2606 (1993), reaffirmed the principle 

that "[a] prosecutor's administrative duties and those 

investigatory functions that do not relate to an advocate's 

preparation for the initiation of a prosecution or for judicial 

proceedings are not entitled to absolute immunity," although 

those duties and functions may be protected by qualified 

immunity. Id. at 2615. The Court reasoned that, "[w]hen a 

prosecutor performs the investigative functions normally 

performed by a detective or police officer, it is 'neither 

appropriate nor justifiable that, for the same act, immunity 

should protect the one and not the other.'" Id. at 2616. The 
Court also held that the official seeking absolute immunity bears 

the burden of showing it is justified for the function in 

question. Id. at 2613. Based on that reasoning, the Court in 

Buckley held that a prosecutor, who was sued in a § 1983 action 

by a released murder suspect, was not entitled to absolute 

immunity because he was not acting as an advocate for the State 

when he allegedly fabricated evidence against the murder suspect 

and made false statements to the press about that evidence. The 

Buckley prosecutor thus had to seek protection under the 

qualified immunity doctrine. Id. at 2617-18. 

 With these principles in mind, we examine the 

allegations against Prosecutor Bissell to determine whether his 

alleged conduct is absolutely immune from liability. As we have 

already discussed, Giuffre's complaint charges Bissell with 

conspiring with others to deprive him both of his right to 

counsel and of his property rights without due process of law. 

Giuffre alleges that, as part of that conspiracy, Bissell 

rejected as inadequate Giuffre's offer to buy his lots back for 

$100,000, although the two lots were ultimately sold for a total 

of $20,000 at the public sale and subsequently transferred to two 

individuals with alleged ties to the Prosecutor's Office. 

 The record discloses that: Bissell engaged in a series 

of discussions with Chief Thornburg during the forfeiture 

discussions with Giuffre on May 11, 1990; he directed Thornburg 

to question Giuffre about suspected drug dealers and as to 

whether the lots had been purchased with illegal drug proceeds; 

he approved the transaction whereby Giuffre forfeited his 
property to the County and cooperated in an ongoing 

investigation, and he also, ultimately, approved the 

administrative dismissal of the drug charges against Giuffre. The 

evidence further shows that the lots were sold on the 

recommendation of Bissell, who never had the property valued by a 

licensed appraiser. 

 Viewing this evidence in the light most favorable to 

Giuffre, we cannot hold that Bissell is entitled to absolute 

prosecutorial immunity for his role in the sale of Giuffre's 

forfeited property by the County. Bissell's actions in the 

allegedly improper sale of the property seized by the government 

clearly involved administrative duties, for which he is not 

entitled to absolute immunity. Buckley v. Fitzsimmons, 113 S.Ct. 

at 2615; Schrob I, 948 F.2d at 1419. 

 Nor do we believe that Bissell has satisfied his burden 

of demonstrating that absolute immunity shields him from any 

liability for his allegedly improper conduct in the negotiated 

transaction with Giuffre. Bissell's alleged conduct cannot 

properly be characterized as "acts undertaken by a prosecutor in 

preparing for the initiation of judicial proceedings or for 

trial," which are therefore entitled to the protection of 

absolute immunity. See Buckley v. Fitzsimmons, 113 S.Ct. at 

2615. The approval and authorization of a transaction whereby 

Giuffre escaped prosecution for serious drug offenses does not 

constitute the initiation of a prosecution, for which judicial 

safeguards exist to protect the defendant. To the contrary, the 

very essence of the transaction with Giuffre was the avoidance of 
prosecution. Indeed, Bissell concedes that the negotiations with 

Giuffre for his cooperation were focused on a dismissal of the 

charges, and not on a guilty plea. 

 Significantly, Bissell points us to no analogous 

historical or common-law basis for an absolute immunity for 

prosecutors who advise investigators on how to proceed with the 

type of informal transaction here, whereby an arrestee in an 

"air-tight" drug case is given his freedom in exchange for 

cooperation and property.0 See Mitchell, 472 U.S. at 521 

("First, in deciding whether officials performing a particular 

function are entitled to absolute immunity, we have generally 

looked for a historical or common-law basis for the immunity in 

question."). We reach this conclusion because, contrary to 

Bissell's position, we do not view his approval of the 

transaction with Giuffre as analogous to an in rem civil 

forfeiture. 

 In Schrob I, we held that a prosecutor's initiation of 

an in rem civil proceeding for the forfeiture of criminal 

property was absolutely immune because it was "intimately 

connected with the criminal process," and because an owner of the 

property would have sufficient opportunity to challenge the 

legality of the proceeding. 948 F.2d at 1411-12. Here, the 

transaction with Giuffre was never memorialized in writing, in 

accordance with the policy of Bissell's office, and was thereby 

designed to remain beyond judicial oversight. Consequently, 

 

0See supra note 2. 
while the ultimate result of the agreement with Giuffre may have 

been the forfeiture of his property, we are not presented here 

with an in rem proceeding and its attendant safeguards. 

 Rather, we view Prosecutor Bissell's act of advising 

Chief Thornburg during the challenged forfeiture negotiations as 

the functional equivalent of a prosecutor providing legal advice 

to police during the investigative stages of a criminal 

proceeding, an act which is not absolutely immunized from 

liability. Burns v. Reed, 500 U.S. at 496. In Burns v. Reed, 

the Supreme Court determined that there was no historical or 

common-law support for extending absolute immunity to a 

prosecutor's act of counseling police that hypnosis was an 

acceptable investigative technique in questioning a mother 

suspected of attempting to kill her two sons. While we are 

cognizant of the factual distinctions between the instant case, 

where Giuffre was under arrest by the Prosecutor's Office, and 

Burns v. Reed, where police were questioning an unarrested 

suspect, we believe that the rationale of the Court in that case 

applies with equal force here. 

 Burns v. Reed rejected any notion that giving legal 

advice to investigators is related to a prosecutor's role in 

screening cases for prosecution and in safeguarding the fairness 

of the criminal judicial process. The Court reasoned that: 

Indeed, it is incongruous to allow prosecutors to be 

absolutely immune from liability for giving advice to 

the police, but to allow police officers only qualified 

immunity for following the advice. . . . Almost any 

action by a prosecutor, including his or her direct 

participation in purely investigative activity, could 

be said to be in some way related to the ultimate 
decision whether to prosecute, but we have never 

indicated that absolute immunity is that expansive. 

Id. at 495. That reasoning, which we believe applicable here, 

was reaffirmed by the Court in Buckley v. Fitzsimmons, 113 S. Ct. 

at 2617 ("When the functions of prosecutors and detectives are 

the same, as they were here, the immunity that protects them is 

the same."). 

 Bissell also has failed to demonstrate a risk of 

vexatious litigation that would not be alleviated by the norm of 

qualified immunity. See Burns v. Reed, 500 U.S. at 494 

("Absolute immunity is designed to free the judicial process from 

the harassment and intimidation associated with litigation."); 

see also Mitchell, 521 U.S. at 511 (noting the "obvious risks of 

entanglement in vexatious litigation" that arise from "the 

judicial or 'quasi-judicial' tasks that have been the primary 

wellsprings of absolute immunity"). Nor has Bissell presented us 

with any alternative means apart from the instant action for 

redressing the wrongful conduct alleged here by Giuffre. See

Mitchell, 472 U.S. at 522 ("[M]ost of the officials who are 

entitled to absolute immunity from liability are subject to other 

checks to help to prevent abuses of authority from going 

unredressed."). 

 Because Giuffre was never formally charged with any 

crime, he cannot seek redress through the criminal process for 

the wrongful conduct he attributes to Prosecutor Bissell. Nor, 

as we have just discussed, are there any safeguards of the 

judicial process -- apart from the instant action -- to serve as 
a restraint on the type of prosecutorial misconduct alleged by 

Giuffre. See Burns v. Reed, 500 U.S. at 492 ("'[T]he safeguards 

built into the judicial system tend to reduce the need for 

private damages actions as a means of controlling 

unconstitutional conduct.'") (citation omitted); Mitchell, 472 

U.S. at 522-23 ("[T]he judicial process is largely selfcorrecting: procedural rules, appeals, and the possibility of 

collateral challenges obviate the need for damages actions to 

prevent unjust results."). 

 Prosecutor Bissell thus has failed to carry his burden 

of establishing that he was functioning as an "advocate" when he 

directed Chief Thornburg to question Giuffre concerning his 

future cooperation with investigators, or when he counseled 

Thornburg to ensure that illegal proceeds had been used in the 

purchase of Giuffre's building lots, all for the alleged purpose 

of acquiring property and allowing Giuffre to avoid the judicial 

process entirely. Those actions "have no functional tie to the 

judicial process," and are not entitled to absolute immunity 

merely because they were actions undertaken by a prosecutor. See

Buckley, 113 S. Ct. at 2618. 

 We hold, therefore, that Prosecutor Bissell is not 

entitled to absolute immunity, and that he is, at most, entitled 

to qualified immunity for his actions. Our decision is informed 

by the teaching of the Supreme Court that we must be "'quite 

sparing'" in recognizing absolute prosecutorial immunity. Id. at 

2613 (citation omitted). 

 
V. 

 The denial of qualified immunity is an issue of law, 

also subject to our plenary review. As the Supreme Court has 

counseled: 

Decision of this purely legal question permits courts 

expeditiously to weed out suits which fail the test 

without requiring a defendant who rightly claims 

qualified immunity to engage in expensive and time 

consuming preparation to defend the suits on its 

merits. One of the purposes of immunity, absolute or 

qualified, is to spare a defendant not only unwarranted 

liability, but unwarranted demands customarily imposed 

upon those defending a long drawn out lawsuit. 

Siegert v. Gilley, 500 U.S. at 232. 

 In determining whether a government official is 

entitled to qualified immunity, we must apply the two-part, 

objective test enunciated by the Supreme Court in Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982): 

government officials performing discretionary 

functions, generally are shielded from liability for 

civil damages insofar as their conduct does not violate 

clearly established statutory or constitutional rights 

of which a reasonable person would have known. 

Id.; see Abdul-Akbar, 4 F.3d at 201; Burns v. County of Cambria, 

971 F.2d at 1021. The "clearly established" standard of Harlow

was delineated by the Supreme Court in Anderson v. Creighton, 483 

U.S. 635, 640 (1987): 

The contours of the right must be sufficiently clear 

that a reasonable official would understand that what 

he is doing violates that right. This is not to say 

that an official action is protected by qualified 

immunity unless the very action in question has 

previously been held unlawful, but it is to say that in 

the light of pre-existing law the unlawfulness must be 

apparent. 
Id. 

 This inquiry requires a threshold determination of 

whether the constitutional rights asserted by the plaintiff were 

"clearly established" at the time the defendant officials acted, 

and whether the plaintiff "has asserted a violation of a 

constitutional right at all.'" Acierno, F.3d , 1994 WL 

318783 at * 7 (slip op. at 17) (quoting Siegert, 500 U.S. at 

232). As we discussed above in deciding the jurisdictional 

issues, the district court never determined whether Giuffre 

asserted a violation of a constitutional right, let alone a 

"clearly established" right. The court's entire discussion of 

qualified immunity was: 

 Finally, the individual Defendants argue that they 

are entitled to qualified immunity. In Anderson v. 

Creighton, 483 U.S. 635 (1987), the Supreme Court 

reaffirmed that the test for qualified immunity is 

based on objective reasonableness -- "whether a 

reasonable officer could have believed [the challenged 

action] to be lawful, in light of clearly established 

law and the information the [] officers possessed." Id.

at 641. Plaintiff asserts that Defendants Leffert, 

Meyers, and DeBella repeatedly denied him the right to 

counsel, and that Defendants Smith, Thornburg, and 

Bissell also denied him counsel and unlawfully took his 

property without due process of law. The Court finds 

that whether Defendant violated any clearly established 

laws constitutes a genuine issue of material fact. 

Dist. Ct. Op. at 8. 

 In reviewing the district court's order denying 

qualified immunity, we thus must determine whether "'reasonable 

officials in the defendants' position at the relevant time could 

have believed, in light of what was in the decided case law, that 
their conduct would be unlawful.'" Abdul-Akbar, 4 F.3d at 202 

(quoting Good v. Dauphin County Social Servs. for Children and 

Youth, 891 F.2d 1087, 1092 (3d Cir 1989)). Where appropriate, 

we may consider whether the constitutional rights asserted by 

Giuffre were "clearly established" at the time the individual 

officials acted, without initially deciding whether a 

constitutional violation was alleged at all. See Acierno, 

F.3d , 1994 WL at * 23 n.7 (slip op. at 17 n.7); Rappa v. New 

Castle County, 18 F.3d 1043, 1077-79 (3d Cir. 1994); Abdul-Akbar 

v. Watson, 4 F.3d 195, 201-05 (3d Cir. 1993). As we stated in 

Good, "[t]he ultimate issue is whether, despite the absence of a 

case applying established principles to the same facts, 

reasonable officers in the defendants' position at the relevant 

time could have believed, in light of what was in the decided 

case law, that their conduct was lawful." 891 F.2d at 1092. We 

note that qualified immunity protects "all but the plainly 

incompetent or those who knowingly violate the law." Malley v. 

Briggs, 475 U.S. 335, 341 (1986); Schrob I, 948 F.2d at 1421. 

A. 

 Giuffre alleges that his Fifth Amendment right to 

counsel was violated when he gave a taped statement to Sergeant 

Meyers and Detectives Leffert and DeBella during the custodial 

interrogation following his arrest on May 10, 1990. We disagree. 

Giuffre concedes, as he must, that violations of the 

prophylactic Miranda procedures do not amount to violations of 

the Constitution itself. Giuffre br. at 26; see, e.g., Warren v. 

City of Lincoln, 864 F.2d 1436, 1442 (8th Cir.) (holding that 
"the remedy for a Miranda violation is the exclusion from 

evidence of any compelled self-incrimination, not a section 1983 

action"), cert. denied, 490 U.S. 1091 (1989); Bennett v. Passic, 

545 F.2d 1260, 1263 (10th Cir. 1976) ("No rational argument can 

be made in support of the notion that the failure to give Miranda

warnings subjects a police officer to liability under the Civil 

Rights Act"). The right protected under the Fifth Amendment is 

the right not to be compelled to be a witness against oneself in 

a criminal prosecution, whereas the "right to counsel" during 

custodial interrogation recognized in Miranda v. Arizona, 384 

U.S. 436 (1966), is merely a procedural safeguard, and not a 

substantive right. Id.

 Giuffre contends, however, that the alleged conduct of 

Sergeant Meyers and Detectives Leffert and DeBella reached beyond 

Miranda and touched upon his substantive Fifth Amendment rights. 

His argument is that, although he was advised of, and waived, his 

Miranda rights, "Mirandizing was a farce" because the individual 

officers never intended to allow him to exercise his right to 

remain silent. Giuffre br. at 30. Relying exclusively on the 

Ninth Circuit's en banc opinion in Cooper v. Dupnik, 963 F.2d 

1220 (9th Cir.), cert. denied, 113 S. Ct. 407 (1992), Giuffre 

asserts that the Fifth Amendment violation alleged here sustains 

his § 1983 action against the individual officials. 

 Giuffre's reliance on Cooper is misplaced. The 

majority in Cooper broke new ground when it held, in 1992, that a 

§ 1983 claim for violation of the Fifth Amendment selfincrimination clause was stated by allegations that the 
plaintiff's statements were compelled, even though those 

statements were never used against the plaintiff in a court of 

law. 963 F.2d at 1242-43. The dissenting judges in Cooper

presented a persuasive argument that the Fifth Amendment 

privilege against self incrimination is not violated until 

evidence is admitted in a criminal case. See 963 F.2d at 1253-55 

(Brunetti, J., dissenting); id. at 1256-57 (Leavy, J., 

dissenting). This disagreement, and subsequent opinions of other 

courts of appeal, indicate to us that the law on which Giuffre 

relies is not clearly established at this time. Wiley v. Doory, 

14 F.3d 993, 997-98 (4th Cir. 1994) (holding that "law not 

clearly established even at time of the Cooper decision" and 

"remains unsettled" today); see also Mahoney v. Kesery, 976 F.2d 

1054, 1062 (7th Cir. 1992) (declining to decide whether view of 

en banc Ninth Circuit in Cooper "is sound"). If the law on which 

Giuffre pins his claims is not presently clear, it could not have 

been clearly established in 1990 when Giuffre's Fifth Amendment 

violations were alleged to have occurred. 

 Furthermore, Cooper was decided under a highly-unusual 

set of facts. The defendant law enforcement officers there 

admitted that they engaged in a pre-existing interrogation plan 

whereby they ignored the suspect's repeated requests to speak 

with an attorney, deliberately infringed on his right to remain 

silent, and relentlessly interrogated him in an attempt to 

extract a confession. 963 F.2d at 1223-32. In contrast, Giuffre 

has not alleged, nor have any of the appellant officials 

admitted, the application of a pre-existing plan to interrogate 
him in such a manner as to touch upon his substantive Fifth 

Amendment rights. 

 In light of the law as it existed at the time of the 

alleged Fifth Amendment violation, and as it exists today, we 

cannot say that a reasonable officer would have known that the 

conduct alleged here violated Giuffre's substantive rights under 

the Fifth Amendment, even though the officer might have 

recognized that the conduct could have been the basis for the 

suppression of Giuffre's statement. Because the substantive 

Fifth Amendment norms allegedly violated by the individual 

officials were not clearly established at the time of the 

challenged actions, Giuffre's claims based on violation of his 

Fifth Amendment right must fail. Accordingly, Sergeant Meyers 

and Detectives Leffert and DeBella are entitled to qualified 

immunity on Giuffre's Fifth Amendment claims. 

B. 

 Prosecutor Bissell, Chief Thornburg, and Deputy Chief 

Smith also are entitled to partial summary judgment on Giuffre's 

claims that their denial of his right to counsel during the May 

11, 1990 negotiations violated his rights under the Sixth 

Amendment. Giuffre's Sixth Amendment right to counsel had not 

attached at the time of the challenged actions of Bissell, 

Thornburg, and Smith. 

 It is settled law that the Sixth Amendment right to 

counsel does not attach until the "initiation of adversary 

judicial proceedings," Michigan v. Jackson, 475 U.S. 625, 629 
(1986), by way of any formal charge, preliminary hearing, 

indictment, information, or arraignment. Brewer v. Williams, 430 

U.S. 387, 398 (1977); Kirby v. Illinois, 406 U.S. 682, 689 

(1972). Giuffre was never formally charged with the drug 

offenses, and his only appearance in court resulted in a 

postponement to allow him time to retain counsel. 

 We do not believe, as Giuffre urges, that his informal 

transaction with the Prosecutor's Office can properly be 

analogized to the formality of the plea bargaining process in 

which the result is ultimately submitted to the court. Compare

Santobello v. New York, 404 U.S. 257, 260-61 (1971) (vacating 

judgment of conviction and sentencing of defendant whose formal 

plea agreement was not honored by prosecutor). Furthermore, we 

have held that the remedy for the failure to provide an accused 

with the benefit of counsel during plea bargaining is withdrawal 

of the guilty plea without inquiry into whether demonstrable harm 

resulted. Gallarelli v. United States, 441 F.2d 1402, 1405 (3d 

Cir. 1971) ("[T]he guidance of counsel is so essential a 

protection for an accused during plea bargaining and in the 

making of a decision to plead guilty that a plea entered without 

such guidance must be set aside."). 

 We therefore are not persuaded by Giuffre's argument 

that his transaction with the appellant officials was a plea 

bargain agreement. It is true that in rem proceedings for the 

forfeiture of criminal property are "intimately connected with 

the criminal process," Schrob I, 948 F.2d at 1411-12, and that a 

defendant has a right to the assistance of counsel during plea
negotiations. See Gallarelli, 441 F.2d at 1405. Those 

principles, however, do not amount to a Sixth Amendment violation 

in the instant case. That is because, as the officials contend, 

these negotiations were not focused on a guilty plea, but rather 

on a dismissal of the charges and a forfeiture of Giuffre's 

building lots. 

 Since Giuffre was never formally charged, never 

indicted or arraigned, never appeared at a preliminary hearing, 

and never entered a guilty plea, his Sixth Amendment right to 

counsel never attached. Giuffre therefore had no "clearly 

established" right that could have been violated by the actions 

of the individual officials under the Sixth Amendment. That 

being so, reasonable officials in the situation alleged here 

could not have known that their actions violated Giuffre's 

"clearly established" Sixth Amendment right to counsel. 

Accordingly, Bissell, Thornburg, and Smith are entitled to 

qualified immunity with respect to Giuffre's claims premised on a 

violation of the Sixth Amendment. 

C. 

 Giuffre also alleges violations of his rights to 

substantive and procedural due process under the Fourteenth 

Amendment. 

 We may readily dispose of Giuffre's procedural due 

process claim because Giuffre has failed to allege a violation of 

clearly established federal law. His argument is predicated on 

an alleged violation of the procedures established under New 
Jersey law governing civil forfeiture. See N.J.S.A. 2C:64-1, et

seq.0 Violations of state law, however, are insufficient to 

state a claim under § 1983. Kulwicki, 969 F.2d at 1468. To the 

extent that Giuffre claims his procedural due process rights were 

violated in the forfeiture negotiations, he has failed to allege 

any violation of the United States Constitution. We thus hold 

that Prosecutor Bissell, Chief Thornburg, and Deputy Chief Smith 

are entitled to qualified immunity as to any claim asserted by 

Giuffre that alleges a violation of procedural due process under 

the Fourteenth Amendment. 

 With respect to Giuffre's substantive due process 

claim, the individual officials argue that there could have been 

no Fourteenth Amendment violation because they had the right to 

entertain an agreement whereby Giuffre forfeited the building 

lots in exchange for a dismissal of the criminal charges. We 

disagree. We believe that the conduct of the individual 

officials alleged by Giuffre is sufficiently conscience-shocking 

as to state a legally cognizable claim for a violation of 

substantive due process under the Fourteenth Amendment. See

Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994) (in banc) 

("[T]he substantive component of the Due Process Clause can only 

be violated by governmental employees when their conduct amounts 

to an abuse of official power that 'shocks the conscience.'"); 

see also Collins v. City of Harker Heights, Tex., 112 S. Ct. 

1061, 1069 (1992) (reaffirming "shock[s] the conscience" standard 

 

0See supra note 1. 
in civil damage actions for violations of substantive due 

process); Daniels v. Williams, 474 U.S. 327, 331 (1986) (the 

substantive component of the Due Process Clause "serves to 

prevent governmental power from being 'used for purposes of 

oppression'") (citation omitted). 

 The individual officials' arguments to the contrary are 

unpersuasive. They argue that, pursuant to application of the 

"relation-back doctrine," title to Giuffre's property vested with 

the State prior to any contact between them and Giuffre, and that 

they therefore cannot under any circumstances be deemed 

unlawfully to have deprived Giuffre of his property. However, 

the common law "relation back" doctrine, which is a fictional and 

retroactive vesting of title, is not self-executing; rather, it 

takes effect only upon the entry of a judicial order of 

forfeiture or condemnation. United States v. A Parcel of Land, 

Bldgs., Appurtenances & Improvements, 113 S.Ct. 1126, 1135 (1993) 

(Opinion of Stevens, J.), affirming 937 F.2d 98 (3d Cir. 1991). 

That doctrine is intended to protect the property rights of 

innocent purchasers of forfeited land, see 937 F.2d at 102-103; 

it does not shield public officials from any possible liability 

for a coercive and fraudulent forfeiture of property such as 

Giuffre alleges here. 

 The individual officials further contend that their 

conduct, even if unlawful, could not have deprived Giuffre of his 

property in violation of the Fourteenth Amendment because their 

actions had "no legal effect upon the forfeiture of [Giuffre's] 

property." County br. at 35. That argument merely begs the 
question of whether or not the property legally vested in the 

County in the first place. We believe that the actions of the 

individual officials certainly would have had a "legal effect" on 

the forfeiture if, as Giuffre alleges, the subject lots were not 

purchased with illegal drug proceeds, and the officials, knowing 

that to be so, coerced Giuffre into making a false statement to 

facilitate forfeiture of the lots pursuant to N.J.S.A. 2C:64-1 et

seq. Without any independent, untainted evidence of record that 

illegal drug proceeds were, in fact, used to purchase the lots, 

the voluntariness of Giuffre's written statement to that effect 

is of paramount importance in deciding whether Giuffre was 

deprived of his property without due process of law. We cannot 

determine that factual question in this interlocutory appeal. 

 The individual officials, in any event, do not appear 

to challenge the principle that a showing of coercive conduct 

through threats and intimidation in order to induce a suspect to 

make a statement would constitute a violation of Giuffre's right 

of substantive due process of law guaranteed by the Fourteenth 

Amendment. Rather, the essence of their argument is that they 

did not do what Giuffre alleges they did. Their "I didn't do it" 

defense to Giuffre's substantive Fourteenth Amendment claim is 

not cognizable as a declaration of qualified immunity. Burns v. 

County of Cambria, 971 F.2d at 1019. As Judge Easterbrook 

reasoned in Elliott v. Thomas, 937 F.2d 338 (7th Cir. 1991), 

cert. denied, 112 S. Ct. 1242 (1992): "[T]here is no separate 

'right not to be tried' on the question whether the defendants 

did the deeds alleged; that is precisely the question for trial. 
. . . It is impossible to know which 'clearly established' rules 

of law to consult unless you know what is going on." Id. at 341. 

 Hence, we have no jurisdiction to determine whether the 

district court properly denied the summary judgment motion of the 

individual officials on any of Giuffre's claim predicated on 

violations of his substantive right of due process of law under 

the Fourteenth Amendment. Burns v. County of Cambria, 971 F.2d 

at 1019 (declining to exercise jurisdiction over appeals of 

defendant officials who had rested their case on the mere denial 

that the conduct alleged by the plaintiffs had occurred); Ryan v. 

Burlington County, N.J., 860 F.2d 1199, 1203 n.8 (3d Cir. 1988) 

(noting that court will not exercise jurisdiction where "I didn't 

do it" defense merely refutes plaintiff's case-in-chief), cert. 

denied, 490 U.S. 1020 (1989); see also Abdul-Akbar, 4 F.3d at 201 

(noting that the question of qualified immunity often cannot be 

resolved adequately until dispositive facts have been presented 

at trial and reduced to findings). 

 Because genuine issues of material fact remain 

concerning alleged violations of Giuffre's right of substantive 

due process, requiring development of a factual record at trial, 

we may not entertain the officials' appeal of the district 

court's order as it relates to the denial of immunity for the 

substantive claims under the Fourteenth Amendment. 
V. 

 Accordingly, we will affirm that portion of the 

district court's July 29, 1993 order denying Prosecutor Bissell 

absolute immunity. However, we will reverse the July 29, 1993 

order of the district court to the extent that it denies the 

individual officials qualified immunity from suit on any of 

Giuffre's claims alleging violations of the Fifth and Sixth 

Amendments and violations of procedural due process under the 

Fourteenth Amendment. We will remand that portion of the 

district court's order with the direction that the district court 

enter partial summary judgment for the individual officials on 

only those claims. We dismiss the remainder of the appeal for 

lack of appellate jurisdiction, and remand to the district court 

for further proceedings consistent with the foregoing opinion.