BURNS v. REED
No. 89-1715
Supreme Court of the United States
Argued November 28, 1990—Decided May 30, 1991
500 U.S. 478
Michael K. Sutherlin argued the cause and filed a brief for petitioner.
Robert S. Spear argued the cause for respondent. With him on the brief were Linley E. Pearson, Attorney General of Indiana, and David A. Nowak, Deputy Attorney General.
Michael R. Lazerwitz argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and Barbara L. Herwig.*
*Louis M. Bograd, Steven R. Shapiro, and Richard A. Waples filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Wyoming et al. by Joseph B. Meyer, Attorney General of Wyoming, Sylvia Lee Hackl, Senior Assistant Attorney General, Don Siegelman, Attorney General of Alabama, Douglas B. Baily, Attorney General of Alaska, Steve Clark, Attorney General of Arkansas, John K. Van de Kamp, Attorney
JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether a state prosecuting attorney is absolutely immune from liability for damages under
I
The relevant facts are not in dispute. On the evening of September 2, 1982, petitioner Cathy Burns called the Muncie, Indiana, police and reported that an unknown assailant had entered her house, knocked her unconscious, and shot and wounded her two sons while they slept. Two police officers, Paul Cox and Donald Scroggins, were assigned to investigate the incident. The officers came to view petitioner as their primary suspect, even though she passed a polygraph
Speculating that petitioner had multiple personalities, one of which was responsible for the shootings, the officers decided to interview petitioner under hypnosis. They became concerned, however, that hypnosis might be an unacceptable investigative technique, and therefore sought the advice of the Chief Deputy Prosecutor, respondent Richard Reed. Respondent told the officers that they could proceed with the hypnosis.
While under hypnosis, petitioner referred to the assailant as “Katie” and also referred to herself by that name. The officers interpreted that reference as supporting their multiple-personality theory. As a result, they detained petitioner at the police station and sought respondent‘s advice about whether there was probable cause to arrest petitioner. After hearing about the statements that petitioner had made while under hypnosis, respondent told the officers that they “probably had probable cause” to arrest petitioner. See Tr. 108; see also id., at 221. Based on that assurance, the officers placed petitioner under arrest.1
The next day, respondent and Officer Scroggins appeared before a county court judge in a probable-cause hearing, seeking to obtain a warrant to search petitioner‘s house and car. During that hearing, Scroggins testified, in response to respondent‘s questioning, that petitioner had confessed to shooting her children. Neither the officer nor respondent informed the judge that the “confession” was obtained under hypnosis or that petitioner had otherwise consistently denied
Petitioner was charged under Indiana law with attempted murder of her sons. Before trial, however, the trial judge granted petitioner‘s motion to suppress the statements given under hypnosis. As a result, the prosecutor‘s office dropped all charges against petitioner.
On January 31, 1985, petitioner filed an action in the United States District Court for the Southern District of Indiana against respondent, Officers Cox and Scroggins, and others. She alleged that the defendants were liable under
Petitioner appealed to the United States Court of Appeals for the Seventh Circuit. That court affirmed. 894 F. 2d 949 (1990). It held that “a prosecutor should be afforded absolute immunity for giving legal advice to police officers about the legality of their prospective investigative conduct.” Id., at 956. In a brief footnote, the court also held that respondent was absolutely immune from liability for his role in the probable-cause hearing. Id., at 955, n. 6. Because the Courts of Appeals are divided regarding the scope of absolute prosecutorial immunity,2 we granted certiorari. 497 U. S. 1023 (1990).
II
Imbler, supra, was the first case in which the Court addressed the immunity of state prosecutors from suits under
The interests supporting the common-law immunity were held to be equally applicable to suits under
The Court in Imbler declined to accord prosecutors only qualified immunity because, among other things, suits against prosecutors for initiating and conducting prosecutions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State‘s advocate,” id., at 425; lawsuits would divert prosecutors’ attention and energy away from their important duty of enforcing the criminal law, ibid.; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity, ibid.; and potential liability “would prevent the vigorous and fearless performance of the pros-
The Court therefore held that prosecutors are absolutely immune from liability under
Decisions in later cases are consistent with the functional approach to immunity employed in Imbler. See, e. g., Westfall v. Erwin, 484 U. S. 292, 296, n. 3 (1988); Forrester v. White, 484 U. S. 219, 224 (1988); Malley v. Briggs, 475 U. S. 335, 342-343 (1986); Mitchell v. Forsyth, 472 U. S. 511, 520-523 (1985); Briscoe v. LaHue, 460 U. S. 325 (1983); Harlow v. Fitzgerald, 457 U. S. 800 (1982); Butz v. Economou, 438 U. S. 478 (1978). These decisions have also emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Forrester, supra, at 224; Malley, supra, at 340; Harlow, supra, at 812; Butz, supra, at 506. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their
III
We now consider whether the absolute prosecutorial immunity recognized in Imbler is applicable to (a) respondent‘s participation in a probable-cause hearing, which led to the issuance of a search warrant, and (b) respondent‘s legal advice to the police regarding the use of hypnosis and the existence of probable cause to arrest petitioner.
A
We address first respondent‘s appearance as a lawyer for the State in the probable-cause hearing, where he examined a witness and successfully supported the application for a search warrant. The decision in Imbler leads to the conclusion that respondent is absolutely immune from liability in a
Initially, it is important to determine the precise claim that petitioner has made against respondent concerning respondent‘s role in the search warrant hearing. An examination of petitioner‘s complaint, the decisions by both the District Court and the Seventh Circuit, and the questions presented in the petition for a writ of certiorari in this Court reveals that petitioner has challenged only respondent‘s participation in the hearing, and not his motivation in seeking the search warrant or his conduct outside of the courtroom relating to the warrant.
Petitioner‘s complaint alleged only the following with regard to respondent‘s role in the search warrant hearing:
“Acting in his official capacity ..., [respondent] facilitated the issuance of a search warrant when on September 22, 1982 he presented evidence to the Court with the full knowledge of the false testimony of the Defendant,
DONALD SCROGGINS. On direct examination, Deputy Prosecutor Reed asked of police officer Donald Scroggins various questions and in doing so and in concert with other Defendants deliberately misled the Court into believing that the Plaintiff had confessed to the shooting of her children.” Complaint ¶ 9; see also id., ¶ 31.
Obviously, that claim concerns only respondent‘s participation in the probable-cause hearing.
When directing a verdict for respondent after petitioner‘s presentation of her case, the District Court continued to view petitioner‘s search warrant claim as concerning only respondent‘s participation in the hearing. The District Court stated:
“Finally, as to getting the search warrant, you can characterize the proceeding before the judge as testimony by [respondent]. And if he asked leading questions—and I think he did—why, of course, you can say that. But the fact is that it was a proceeding in court before a judge. No matter what the form of the question was, the person seeking the search warrant and doing the testifying was the police officer. And what [respondent] was doing was ... his job as a deputy prosecuting attorney and presenting that evidence. Even though it was fragmentary and didn‘t go far enough, he did it as a part of his official duties.” Tr. 221.
This interpretation is further confirmed by the Seventh Circuit‘s summary of petitioner‘s claims on appeal:
“The question before the court is whether a state prosecutor is absolutely immune from suit under
§ 1983 for his acts of giving legal advice to two police officers about their proposed investigative conduct, and for eliciting misleading testimony from one of the officers in a subsequent probable cause hearing.” 894 F. 2d, at 950 (emphasis added). See also id., at 955, n. 6.
“II. Is a deputy prosecutor entitled to absolute immunity when he seeks a search warrant in a probable cause hearing and intentionally fails to fully inform the court by failing to state that the arrested person made an alleged confession while under hypnosis and yet had persistently denied committing any crime before and after the hypnosis?” Pet. for Cert. i (emphasis added).
Therefore, like the courts below, we address only respondent‘s participation in the search warrant hearing.5
Petitioner‘s challenge to respondent‘s participation in the search warrant hearing is similar to the claim in Briscoe v. LaHue, 460 U. S. 325 (1983). There, the plaintiff‘s
Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for
This immunity extended to “any hearing before a tribunal which perform[ed] a judicial function.” W. Prosser, Law of Torts § 94, pp. 826-827 (1941); see also Veeder, Absolute Immunity in Defamation, 9 Colum. L. Rev. 463, 487-488 (1909). In Yaselli v. Goff, 275 U. S. 503 (1927), for example, this Court affirmed a decision by the Circuit Court of Appeals for the Second Circuit in which that court had held that the common-law immunity extended to a prosecutor‘s conduct before a grand jury. See also, e. g., Griffith, supra, at 122, 44 N. E., at 1002; Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066 (1906).6
In addition to finding support in the common law, we believe that absolute immunity for a prosecutor‘s actions in a probable-cause hearing is justified by the policy concerns articulated in Imbler. There, the Court held that a prosecu-
The prosecutor‘s actions at issue here—appearing before a judge and presenting evidence in support of a motion for a search warrant—clearly involve the prosecutor‘s “role as advocate for the State,” rather than his role as “administrator or investigative officer,” the protection for which we reserved judgment in Imbler, see id., at 430-431, and n. 33.7
As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor. Therefore, absolute immunity for this function serves the policy of protecting the judicial process, which underlies much of the Court‘s decision in Imbler. See, e. g., Forrester, 484 U. S., at 226; Briscoe, 460 U. S., at 334-335. Furthermore, the judicial process is available as a check on prosecutorial actions at a probable-cause hearing. “[T]he safeguards built into the judicial system tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct.” Butz, 438 U. S., at 512. See also Mitchell, 472 U. S., at 522-523.
Accordingly, we hold that respondent‘s appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing are protected by absolute immunity.
B
Turning to respondent‘s acts of providing legal advice to the police, we note first that neither respondent nor the court below has identified any historical or common-law support for extending absolute immunity to such actions by prosecutors. Indeed, the Court of Appeals stated that its “review of the historical or common-law basis for the immunity in question does not yield any direct support for the conclusion that a prosecutor‘s immunity from suit extends to the act of giving legal advice to police officers.” 894 F. 2d, at 955.
The United States, as amicus curiae, argues that the absence of common-law support here should not be determinative because the office of public prosecutor was largely unknown at English common law, and prosecutors in the 18th and 19th centuries did not have an investigatory role, as they do today. Brief for United States as Amicus Curiae 20-21. We are not persuaded. First, it is American common law that is determinative, Anderson v. Creighton, 483 U. S. 635, 644 (1987), and the office of public prosecutor was known to American common law. See Imbler, supra, at 421-424. Second, although “the precise contours of official immunity” need not mirror the immunity at common law, Anderson, supra, at 645, we look to the common law and other history for guidance because our role is “not to make a freewheeling policy choice,” but rather to discern Congress’ likely intent in enacting
The next factor to be considered—risk of vexatious litigation—also does not support absolute immunity for giving legal advice. The Court of Appeals asserted that absolute immunity was justified because “a prosecutor‘s risk of becoming entangled in litigation based on his or her role as a legal advisor to police officer is as likely as the risks associated with initiating and prosecuting a case.” 894 F. 2d, at 955-956. We disagree. In the first place, a suspect or defendant is not likely to be as aware of a prosecutor‘s role in giving advice as a prosecutor‘s role in initiating and conducting a prosecution. But even if a prosecutor‘s role in giving advice to the police does carry with it some risk of burdensome litigation, the concern with litigation in our immunity cases is not merely a generalized concern with interference with an official‘s duties, but rather is a concern with interference with the conduct closely related to the judicial process. Forrester, supra, at 226; Imbler, supra, at 430. Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation. Forrester, supra, at 226. That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor‘s role in judicial proceedings, not for every litigation-inducing conduct.
The Court of Appeals speculated that anything short of absolute immunity would discourage prosecutors from performing their “vital obligation” of giving legal advice to the police. 894 F. 2d, at 956. But the qualified immunity standard is today more protective of officials than it was at the time that Imbler was decided.8 “As the qualified immunity defense
The United States argues that giving legal advice is related to a prosecutor‘s roles in screening cases for prosecution and in safeguarding the fairness of the criminal judicial process. Brief for United States as Amicus Curiae 15-18. That argument, however, proves too much. 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. Rather, as in Imbler, we inquire whether the prosecutor‘s actions are closely associated with the judicial process. Indeed, we implicitly rejected the United States’ argument in Mitchell, supra, where we held that the Attor-
As a final basis for allowing absolute immunity for legal advice, the Court of Appeals observed that there are several checks other than civil litigation to prevent abuses of authority by prosecutors. 894 F. 2d, at 956. Although we agree, we note that one of the most important checks, the judicial process, will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution, such as providing legal advice to the police. This is particularly true if a suspect is not eventually prosecuted. In those circumstances, the prosecutor‘s action is not subjected to the “crucible of the judicial process.” Imbler, 424 U. S., at 440 (WHITE, J., concurring in judgment).
In sum, we conclude that respondent has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police.9
IV
For the foregoing reasons, we affirm in part and reverse in part the judgment of the Court of Appeals.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE BLACKMUN joins, and with whom JUSTICE MARSHALL joins as to Part III, concurring in the judgment in part and dissenting in part.
I concur in the judgment as to the issues the Court reaches: I agree that a prosecutor has absolute immunity for eliciting
I
On its face,
While we have not thought a common-law tradition (as of 1871) to be a sufficient condition for absolute immunity under
“Our initial inquiry is whether an official claiming immunity under
§ 1983 can point to a common-law counterpartto the privilege he asserts.... If ‘an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983 ‘s history or purposes nonetheless counsel against recognizing the same immunity in§ 1983 actions.‘” Malley v. Briggs, 475 U. S. 335, 339-340 (1986), quoting Tower v. Glover, 467 U. S. 914, 920 (1984).
Where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under
II
Since my view of the record here requires me to reach a form of prosecutorial action not addressed by the Court, and one that is arguably more difficult to analyze under the common law, I think it well to set forth in at least some detail the nature of common-law immunities. Respondent has not cited, and I have not found, a single pre-1871 case in which a prosecutor was granted absolute immunity for any of the functions contested here. Indeed, as we have previously recognized, see Imbler v. Pachtman, 424 U. S. 409, 421 (1976), the first case extending any form of prosecutorial immunity was decided some 25 years after the enactment of
(1) Judicial immunity. This was an absolute immunity from all claims relating to the exercise of judicial functions. See, e. g., T. Cooley, Law of Torts 408-409 (1880). It extended not only to judges narrowly speaking, but to
“military and naval officers in exercising their authority to order courts-martial for the trial of their inferiors, or in putting their inferiors under arrest preliminary to trial; ... to grand and petit jurors in the discharge of their duties as such; to assessors upon whom is imposed the duty of valuing property for the purpose of a levy of taxes; to commissioners appointed to appraise damages when property is taken under the right of eminent domain; to officers empowered to lay out, alter, and discontinue highways; to highway officers in deciding that a person claiming exemption from a road tax is not in fact
exempt, or that one arrested is in default for not having worked out the assessment; to members of a township board in deciding upon the allowance of claims; to arbitrators, and to the collector of customs in exercising his authority to sell perishable property, and in fixing upon the time for notice of sale.” Id., at 410-411 (footnotes omitted).
As is evident from the foregoing catalog, judicial immunity extended not only to public officials but also to private citizens (in particular jurors and arbitrators); the touchstone for its applicability was performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights. See Steele v. Dunham, 26 Wis. 393, 396-397 (1870) (“The board [of assessors] has to hear testimony; to ascertain facts; to correct errors, and arrive at results, according very much to the proceedings and processes of courts in the determination of causes; and hence they act judicially“); Barhyte v. Shepherd, 35 N. Y. 238, 241-242 (1866); Wall v. Trumbull, 16 Mich. 228, 235-237 (1867); E. Weeks, Damnum absque Injuria 209-210 (1879).
(2) Quasi-judicial immunity. This, unlike judicial immunity, extended only to government servants, protecting their “quasi-judicial” acts—that is, official acts involving policy discretion but not consisting of adjudication. Quasi-judicial immunity, however, was qualified, i. e., could be defeated by a showing of malice. See, e. g., Billings v. Lafferty, 31 Ill. 318, 322 (1863) (clerk of court); Reed v. Conway, 20 Mo. 22, 44-52 (1854) (surveyor-general); Weeks, supra, at 210, and n. 8; J. Bishop, Commentaries on Non-Contract Law § 786, pp. 365-366, and n. 1 (1889); Cooley, supra, at 411-413. I do not doubt that prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial (wherefore they are entitled to qualified immunity under
(3) Defamation immunity. At common law, all statements made in the course of a court proceeding were absolutely privileged against suits for defamation. J. Townshend, Slander and Libel 347-367 (2d ed. 1872); Bishop, supra, §§ 295-300, pp. 123-125. Thus, an ordinary witness could not be sued at all; a complaining witness (i. e., the private party bringing the suit) could be sued for malicious prosecution but not for defamation. This immunity did not turn upon the claimant‘s status as a public or judicial officer, for it protected private parties who served as witnesses, and even as prosecuting witnesses. The immunity extended, however, only against suits for defamation.
III
I turn next to the application of these common-law immunities to the activities at issue here. In the Court‘s view, petitioner makes two claims: (1) that the prosecutor gave incorrect legal advice, and (2) that he elicited false or misleading testimony at the hearing. As to the first, I agree that neither traditional judicial nor defamation immunity is applicable, though (as I have said) quasi-judicial immunity is. The prosecutor may therefore claim only qualified immunity. As to the second, I agree that the traditional defamation immunity is sufficient to provide a historical basis for absolute
Unlike the Court, however, I do not think that disposes of petitioner‘s claims. The Court asserts that “petitioner has challenged only respondent‘s participation in the hearing, and not his motivation in seeking the search warrant.” Ante, at
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence ... may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”
Fed. Rule Civ. Proc. 15(b) .
Reviewing the whole of petitioner‘s evidence, it appears that she alleged improper action by respondent in approving the search warrant application. The judge that heard respondent‘s application testified at trial:
“Q: [by petitioner‘s counsel] And would you tell the jury who, under the procedures you have just described, has the sole and exclusive power to seek a search warrant or approve the seeking of a search warrant? “THE WITNESS: Who has this power? “[PETITIONER‘S COUNSEL]: Yes. “A: It would be the prosecutor of the county or one of the deputies.” Tr. 5.
Respondent Reed testified as follows:
“Q: [by petitioner‘s counsel] Can you give the jury any details about the case which you relied upon in making this decision to seek a search warrant? “A: I don‘t think I relied on anything to seek a search warrant. I was told they wanted a search warrant. I went into court to ask the officers what it was they based their request on. “Q: Do you remember answering some interrogatories in June of 1985? “A: Yes, I do.
“Q: (Reading) ““Q: List each and every item of evidence upon which you relied prior to making the decision to request a search warrant? .... ““A: I relied on the facts that the statement of the accused as to the circumstances of the shooting appeared implausible, that there appeared to be insufficient injury to the accused to substantiate her story that she had been knocked out by an unknown assailant, that her sister-in-law verified that she had a .22 caliber pistol, that under hypnosis she indicated that she disposed of the pistol, which tallied with the fact that the weapon was never found, that the statements made under hypnosis indicated her guilt, and that she failed a polygraph test.’ “(Reading concludes) “Is that your answer? Do you want to look at it?” Id., at 144-145 (emphasis added).
Finally, Officer Stonebraker, the police liaison with the prosecutor‘s office, testified: “‘The decision to seek a search warrant ... was not made by me, but by my superiors in the [prosecutor‘s office].‘” Deposition of Jack Stonebraker, Plaintiff‘s Exhibit A, p. 18.
Petitioner alleged in her complaint that respondent knew or should have known that hypnotically induced testimony was inadmissible, see Complaint ¶ 29. Given the judge‘s testimony that the application could not have proceeded without prosecutorial approval, and Reed‘s conflicting testimony as to whether he in fact made that decision, I think the record contained facts sufficient for the jury to find that respondent wrongfully initiated the search warrant proceeding. Moreover, although this basis for setting aside the directed verdict was not passed upon below, I think it was adequately raised here. Petitioner‘s second question presented asks whether a prosecutor is absolutely immune “when he seeks a search warrant in a probable cause hearing and intentionally fails to
Thus, while the issue has not been presented with the utmost clarity, I think it sufficiently before us. I would find no absolute immunity. As discussed above, the only relevant common-law absolute immunities were defamation immunity and judicial immunity. At common law, the tort of maliciously procuring a search warrant was not a species of defamation (an unintentional tort) but a form of the intentional tort of malicious prosecution. See 3 F. Wharton, Criminal Law § 234 (7th rev. ed. 1874); Carey v. Sheets, 67 Ind. 375, 378 (1879). Defamation immunity was unavailable as a defense. Nor would judicial immunity have been applicable here, since respondent undertook no adjudication of rights. It is clear that a private party‘s action in seeking a search warrant did not enjoy “judicial” immunity, see, e. g., Miller v. Brown, 3 Mo. 94, 96 (1832); Carey v. Sheets, supra, at 378-379, and though no cases exist there is no reason why a similar action by a prosecutor would have been treated differently. I think it entirely plain that, in 1871 when
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For the foregoing reasons, I concur in the judgment of the Court in part and dissent in part.