Wearry v. Foster, 52 F.4th 258

Background

Michael (Mike) Wearry was implicated in a 1998 murder; after convictions and appellate proceedings, he filed a §1983 suit alleging that the district attorney (Scott Perrilloux) and a detective (Marlon Foster) fabricated and coerced witness Jeffrey Ashton to give false testimony at Wearry’s capital-murder trial.
The Wearry panel opinion held that prosecutors who "fabricate" evidence in preparation for trial may be engaged in investigatory (not advocatory) work, limiting absolute prosecutorial immunity on the pleadings and narrowing prior Fifth Circuit precedent.
Appellants sought rehearing en banc of the panel decision; the court polled and denied rehearing en banc (nine judges against, seven in favor).
Judge James Ho concurred in the denial of rehearing en banc (expressing personal doubts about absolute immunity but declining to grant en banc review); Judge Edith H. Jones, joined by two others, dissented from the denial, arguing the panel decision conflicts with Cousin v. Small and other authorities and will sow circuit confusion.
The core dispute centers on the functional immunity test under Imbler/Buckley: whether post‑indictment witness preparation that allegedly involves fabrication/coercion is part of prosecutorial advocacy (absolute immunity) or investigatory activity (at most qualified immunity), and whether detectives acting in concert share the prosecutor's immunity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of absolute prosecutorial immunity for post‑indictment witness preparation/coaching	Wearry: defendants deliberately fabricated/coerced trial testimony and thus are liable under §1983	Perrilloux/Foster: post‑indictment witness interviews and trial preparation are advocatory functions entitled to absolute immunity	En banc rehearing denied; panel decision stands that alleged "fabrication" can be treated as investigatory and may not receive absolute immunity on pleadings
Whether detectives acting with prosecutors can claim absolute immunity	Wearry: detective who participates in fabricating testimony should be liable	Defendants: under Buckley, when performing the same advocatory function, detectives share prosecutorial immunity	Wearry panel limited detectives to qualified immunity; dissent argues Buckley supports functional parity
Whether Wearry conflicts with existing Fifth Circuit precedent (Cousin) and merits en banc review	Wearry: panel applied governing tests to facts (implicitly argues no controlling conflict)	Appellants/dissent: Wearry directly conflicts with Cousin, which held post‑indictment witness prep is advocatory and absolutely immune	Court denied en banc rehearing despite dissent asserting an intra‑circuit conflict
Appropriateness of en banc rehearing to resolve immunity doctrine and circuit conflict	Pro‑rehear (dissent): conflict with Cousin and other circuits warrants full‑court resolution to maintain rule of orderliness	Anti‑rehear (majority poll & concurrence): discretionary denial; some judges prefer to leave Supreme Court/Congress to resolve broader doctrinal issues	En banc rehearing denied (9–7 in poll); two opinions explain split reasons: Ho concurs in denial; Jones dissents from denial

Key Cases Cited

Imbler v. Pachtman, 424 U.S. 409 (Sup. Ct.) (establishes absolute immunity for prosecutors performing advocatory functions)
Buckley v. Fitzsimmons, 509 U.S. 259 (Sup. Ct.) (adopts functional test distinguishing investigatory from advocatory prosecutorial acts)
Cousin v. Small, 325 F.3d 627 (5th Cir.) (holds post‑indictment witness interviews/preparation are advocatory and absolutely immune)
Wearry v. Foster, 33 F.4th 260 (5th Cir.) (panel opinion at issue; treats alleged fabrication as investigatory, narrowing absolute immunity)
Barbera v. Smith, 836 F.2d 96 (2d Cir.) (discussed by Wearry and other courts regarding investigatory/advocatory distinctions)
Moore v. Valder, 65 F.3d 189 (D.C. Cir.) (court referenced for the investigatory/advocatory split that Cousin rejected)