Mark Stephen Palmquist v. United States of America

2011 | Cited 0 times | D. Maine | April 1, 2011

ORDER AFFIRMING RECOMMENDED DECISION

On February 8, 2011, the United States Magistrate Judge filed with the Court her Recommended Decision on the Defendant‟s Motion to Suppress Statements. Recommended Decision on Mot. to Suppress (Docket # 46). The Defendant filed his objections to the Recommended Decision on February 18, 2011. Def.'s Objection to Recommended Decision on Mot. to Suppress Statements (Docket # 56) (Def.'s Obj.). The Government filed its response to those objections on February 22, 2011. Resp. of the United States to Def.'s Objection to Recommended Decision on Mot. to Suppress Statements (Docket # 57).

In his objections, Mr. Palmquist raises three concerns: 1) that the Government failed to meet its burden to prove by a preponderance of the evidence that his statements were voluntary because the Government failed to demonstrate that the Garrity1 warnings had been accurately provided to him; 2) that Garrity as explained by the First Circuit in Sher v. Dep't of Veterans Affairs, 488 F.3d 489, 494-95 (1st Cir. 2007) requires suppression; and 3) that the VA‟s Garrity form is inconsistent with the Department of Justice‟s model form, misrepresents the law, and creates confusion. Def.'s Obj. at 8-16.

Regarding Mr. Palmquist‟s first objection, a careful review of the Recommended Decision confirms that the Magistrate Judge properly placed the burden of proof on the Government and concluded based on the evidence before her that the Government had sustained its burden to demonstrate that Mr. Plamquist had received accurate Garrity warnings. For the reasons in the Recommended Decision, the Court overrules Mr. Palmquist‟s objection and adopts and affirms the Recommended Decision.

As regards the second issue, Mr. Palmquist emphasizes the First Circuit decision in Sher.2 However, the Magistrate Judge cited Sher in her Recommended Decision and Sher did not reverse the First Circuit‟s earlier holding in United States v. Stein, 233 F.3d 6, 16 (1st Cir. 2001), which was quoted in the Recommended Decision. The Garrity warning that Mr. Palmquist received -- namely that his refusal to answer "can be considered in an administrative proceeding for any evidentiary value that is warranted by the facts surrounding your case"- is permitted under Garrity. See Dwan v. City of Boston, 329 F.3d 275, 279-80 (1st Cir. 2003) ("Under the case law, the negative inference may be drawn by a public employer- and adverse action taken "because of‟ an employee‟s refusal to answer questions about job-related misconduct, so long as the inference is plausible and (perhaps) other information also supports the adverse action").

Finally, as regards the third issue, although Mr. Palmquist contends that the Garrity form in his case misstates the law, the Magistrate Judge concluded that it did not. The Court agrees with the Magistrate Judge.

The Court has reviewed and considered the Magistrate Judge‟s Recommended Decision together with the entire record. It has made a de novo determination of all matters adjudicated by the Magistrate Judge‟s Recommended Decision. The Court concurs with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, and the Court determines no further proceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED.

2. It is further ORDERED that the Defendants‟ Motion to Suppress (Docket # 41) be and hereby is DENIED.

SO ORDERED

1. Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

2. One irony is that the Magistrate Judge who issued the Recommended Decision in this case also issued the Recommended Decision in Sher. See Sher v. U.S. Dep't of Agric. Affairs, Civil No. 04-182-B-W, 2005 U.S. Dist. LEXIS 15944 (Aug. 4, 2005); aff'd 2006 U.S. Dist. LEXIS 7936 (D. Me. Feb. 27, 2006) aff'd 488 F.3d 489 (1st Cir. 2007).

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