33 F.4th 260
5th Cir.2022Background
- 1998: Eric Walber murdered; Michael Wearry was later charged, convicted of capital murder, and sentenced to death; the U.S. Supreme Court reversed that conviction in Wearry v. Cain (2016) based on Brady evidence.
- After reversal, Wearry sued under 42 U.S.C. §§ 1983 and 1988, alleging DA Scott Perrilloux and Detective Marlon Foster fabricated evidence by coercing a juvenile (Jeffery Ashton) into adopting and testifying to a wholly invented narrative linking Wearry to the crime.
- Complaint alleges multiple meetings over months in which the officials detained and intimidated Ashton, falsified a photo-array result, showed him the victim’s blood-stained car, suppressed Ashton’s contrary statements, and coached him to a fabricated story used at trial.
- Defendants moved for judgment on the pleadings (Rule 12(c)) claiming absolute prosecutorial immunity; the district court denied the motions, concluding the alleged misconduct was investigatory, not advocatory.
- The Fifth Circuit panel affirmed: prosecutorial absolute immunity does not shield fabrication/acquisition of false evidence; police officers are not entitled to absolute prosecutorial immunity either. Judge Ho concurred/dubitate, arguing circuit precedent (Cousin) could require immunity and critiquing the doctrine’s foundations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DA Perrilloux is entitled to absolute prosecutorial immunity for allegedly fabricating evidence and coercing a witness | Perrilloux’s conduct was investigatory (creating evidence), so no absolute immunity | Fabrication and later use at trial were part of advocatory function; post-charge use and intent to present at trial warrant immunity | Denied — acts alleged are investigatory (evidence creation/acquisition) and not protected by absolute immunity |
| Whether Detective Foster (a police officer) is entitled to absolute prosecutorial immunity for the same conduct | Wearry says both actors acted in concert to fabricate evidence; immunity should not protect such acts | Foster argues parity with prosecutor: same alleged acts should yield same immunity | Denied — police are not entitled to absolute prosecutorial immunity; only limited witness-testimony immunity applies when acting as witnesses |
| Whether the post-indictment timing and intent to use fabricated testimony at trial convert investigatory acts into advocatory ones | Timing/use-at-trial cannot retroactively immunize fabrication of evidence | Post-indictment and intent to use at trial make conduct advocatory and thus immune | Rejected — Supreme Court precedent forbids retroactive immunization; function (investigatory vs advocatory) controls, not timing or later use |
| Whether Cousin v. Small requires granting absolute immunity here | Wearry distinguishes Cousin facts (plea negotiations, defense counsel involvement, trial rehearsal) as different and investigatory here | Defendants (and Judge Ho) argue Cousin holds prosecutors entitled to immunity for coercing false testimony after indictment and intending trial use | Majority: Cousin is distinguishable on facts; immunity denied. Concurring judge: reads Cousin as requiring immunity and would grant it; disagrees with majority |
Key Cases Cited
- Imbler v. Pachtman, 424 U.S. 409 (1976) (established absolute prosecutorial immunity for functions "intimately associated with the judicial phase" of prosecution)
- Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (distinguished advocacy from investigation; prosecutors’ evidence-acquisition is investigatory and not absolutely immune)
- Cousin v. Small, 325 F.3d 627 (5th Cir. 2003) (Fifth Circuit held prosecutor entitled to immunity for allegedly coercing witness post-indictment; central to circuit disagreement)
- Malley v. Briggs, 475 U.S. 335 (1986) (refused to extend absolute immunity to police in warrant-seeking context; police and prosecutors have different immunity scopes)
- Briscoe v. LaHue, 460 U.S. 325 (1983) (police officers have immunity for in-court testimony as witnesses but not blanket prosecutorial immunity)
- Burns v. Reed, 500 U.S. 478 (1991) (clarified limits of absolute immunity; distinguishes advocatory versus investigative conduct and places burden on official claiming immunity)
- Pierson v. Ray, 386 U.S. 547 (1967) (noted common law did not afford police absolute immunity)
- Rehberg v. Paulk, 566 U.S. 356 (2012) (discussed historical scope of immunities and that prosecutorial immunity evolved after 1871)
- Wearry v. Cain, 577 U.S. 385 (2016) (Supreme Court reversed Wearry’s conviction on Brady grounds; factual predicate for this § 1983 suit)
- Singleton v. Cannizzaro, 956 F.3d 773 (5th Cir. 2020) (denied absolute immunity for prosecutors who used fake subpoenas to coerce witnesses)
- Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) (acquiring known-false statements from a witness is fabricating evidence and unprotected by absolute immunity)
- Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) (holding later use at trial does not retroactively immunize fabrication of testimony)
- Wooten v. Roach, 964 F.3d 395 (5th Cir. 2020) (illustrative of limits on immunity where alleged conduct was investigatory rather than advocatory)