Cathy BURNS, Plaintiff-Appellant, v. Rick REED, Defendant-Appellee.
No. 88-3397.
United States Court of Appeals, Seventh Circuit.
Argued June 1, 1989. Decided Feb. 6, 1990.
894 F.2d 949
Quotas have been justified as temporary devices, as methods to prime the pump. They cannot be justified over the long haul as “remedies“, when the beneficiaries are the children and grandchildren of victims, if related to victims at all. Enduring quotas are inconsistent with their own justification. Continuation of this litigation gives the impression that the district judge is an ombudsman, that because we deal with a “remedy” the court may reshape the civil service system of Illinois to meet the latest perceived ill. Equitable decrees move the locus of politics from City Hall to the courthouse. Power to change the quotas on discretionary grounds encourages pie-slicers to seek larger shares. It offers hope yet withholds the justification of law. Employment on Chicago‘s police force is not a fief to be obtained from a federal court; even if the lord is generous to his vassals, the principle of organization is objectionable.
From a managerial perspective—important if we are to have such long-running decrees—things have become Byzantine. Look at the court‘s opinion (which I join): a four-page runup to a one-paragraph disposition, necessary because it is almost impossible to tell what is going on. As years go by, more parties intervene. Motion calls resemble the City Council. No one knows how many parties there are; recently we dismissed one aspect of the case in which the lawyer seemed to have lost his clients—and no one noticed! Bigby v. City of Chicago, 871 F.2d 54 (7th Cir.1989) (dismissing the appeal for want of appellate jurisdiction without deciding whether there is still a case or controversy). While some are allowed through the portals, others are rebuffed sometimes because the applications are untimely, sometimes because another person represents the same point of view but the intervenor could not find out. Recently we dragooned a party into this case out of fear that failing to make a claim in this forum would forfeit it. United States v. City of Chicago, 870 F.2d 1256 (7th Cir.1989). The fear was not realized, see Martin v. Wilks, U.S., 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), but the complexity grows. It is long past the time when a citation to United States v. City of Chicago would summon up a rule of law, as opposed to a raven‘s nest of problems.
This case began before the Supreme Court decided its first affirmative action case. As the law evolved and new people came to office, the principal parties have changed sides: the United States initially wanted quotas and now opposes them; Chicago, which initially discriminated against blacks, Hispanics, and women, now adjusts exam scores and sponsors quotas in their favor. Today‘s disputes concern new examinations and practices. What the parties to this appeal are contesting is so far removed from the original point of this suit that it is in effect new litigation, yet encumbered with the barnacles of a generation.
The decree has served its office. It should be dissolved. If Chicago commits new wrongs, those aggrieved must prove it. Fresh litigation, on a fresh record, can proceed without the excess parties of this case or fear that failure to make some point in 1974 forfeits it in 1990. Law, not equitable discretion, will hold the balance. Until then, state and local law should govern the selection and promotion of police officers. Let us close the book on this old dispute and wish that the episode never be repeated.
David A. Nowak, Dist. Atty. Gen. (argued), Indianapolis, Ind., Thomas H. Neuckranz, Williams & Montgomery, Chicago, Ill., William G. Bruns, Cannon & Bruns, Muncie, Ind., Edwin L. Gagnon, Byrum, Gagnon & Diehl, Indianapolis, Ind., for defendant-appellee.
Before BAUER, Chief Judge, CUMMINGS, and RIPPLE, Circuit Judges.
BAUER, Chief Judge.
The present appeal is from the district court‘s order granting defendant‘s motion for a directed verdict in this action for damages under
I. BACKGROUND
Muncie, Indiana police officers Paul Cox and Donald Scroggins were assigned to investigate a September 2, 1982, incident in which an unknown assailant entered Cathy Burns’ home and rendered her unconscious by striking her with a blunt object. The intruder then shot Burns’ sons Eddie Griffin and Denny Sells two times apiece while they slept. Before leaving, the assailant used a lipstick to scrawl the following message on Burns’ bathroom mirror: “I took what you loved most.” When Burns regained consciousness, she called the police in a hysterical state and reported the incident. She and her sons were subsequently taken to a local hospital and treated for their wounds.
On September 21, 1982, the officers questioned Burns once more. This time, they persuaded her to submit to questioning under hypnosis as the only way to flesh out any further evidence concerning the incident. Before proceeding, Officer Cox reminded Scroggins that during their police academy training, it was stressed that the use of hypnosis on criminal suspects or defendants was an unacceptable investigative technique. Cox‘s recollection prompted the officers to call Chief Deputy Prosecutor Richard Reed, the police liaison attorney, to inquire about the propriety of placing Burns under hypnosis and questioning her. That afternoon, Scroggins called Reed at his home and informed him of their desire to hypnotize Burns because she was the only one who could provide them with “additional information” about the incident. Scroggins testified that he informed Reed that Burns was their prime suspect in the shooting. Nonetheless, Reed told the officers that if hypnotizing Burns was their only remaining avenue, they should proceed.
With the assistance of an employee at a local supermarket chain, the officers hypnotized Burns and questioned her about the incident. During the video taped questioning, Burns described her assailant as someone wearing overalls, a halloween mask, and a dark wig. She also referred to the assailant as “Katie.” After further questioning by the officers, Burns also made reference to herself as “Katie.” The officers interpreted this response as evidence supporting their split personality theory and as a “confession” by Burns’ other “self.” When Burns was taken out of the hypnotic state, she reiterated her assertion that she had nothing to do with the shooting of her sons.
Soon after the hypnotic session, Officers Cox and Scroggins met with Reed at the station to ask his opinion about whether they had probable cause to arrest Burns. Reed stated that he thought they did. On the following day, Reed appeared at a probable cause hearing before a county court judge to obtain a warrant to search Burns’ house and automobile. During that hearing, Reed elicited testimony from Officer Scroggins regarding Burns’ alleged confession. At no point in the hearing did Reed ask Scroggins to clarify that Burns’ alleged confession was in fact his interpretation of her hypnotically induced statements about “Katie.” On the basis of Scroggins’ misleading testimony, the judge found that there was probable cause to issue a search warrant. Burns’ house and car were subsequently searched for items relating to the shooting.
On September 28, 1982, the judge issued a warrant for Burns’ arrest after Jack L. Stonebraker, an investigator for the office of the Delaware County Prosecuting Attorney, submitted an affidavit in support of probable cause. Again, the judge was not informed that the alleged confession was obtained while Burns was under hypnosis. After the judge issued the warrant, Burns was arrested for attempted murder and was detained in the psychiatric ward of Ball Memorial Hospital for four months.1 During that time, Burns was observed and tested by several medical experts who concluded that she did not suffer from a multiple personality. For example, the doctor who was asked to examine Burns to deter-
I do not find sufficient criteria to make a diagnosis of multiple personality. There are no episodes of depersonalization nor abrupt changes in personality. There were no homicidal ideation or inappropriate interactions with staff or family members. She is able to handle the stress of being on a psychotic unit as well as a fear of losing custody of her children and her employment with maturity. I doubt very much that Cathy shot her children. Dr. Phillip Coons of LaRue Carter Hospital in Indianapolis provided psychiatric consultation. Dr. Coons has had extensive training and experience with multiple personalities. It is of interest to note that he concurs that this patient does not have a multiple personality.
Prior to Burns’ trial, the court granted her motion to quash the statements she made to Officers Scroggins and Cox while under hypnosis. In the face of this development, the prosecutor‘s office dismissed all pending criminal charges against Burns. Nevertheless, Reed allegedly stated to the press that he thought Burns was in fact guilty of the crimes that had been charged.
At the conclusion of the foregoing ordeal, Burns filed the present
Prior to trial, Officers Cox and Scroggins made a combined offer of judgment to Burns in the amount of $150,000. Stonebraker, in turn, made an offer of judgment in the amount of $100,000. Burns accepted these offers and proceeded to trial against Reed. Upon the close of Burns’ case in chief, Reed moved for a directed verdict pursuant to
II. ANALYSIS
Burns’ central claim on appeal is that the district court committed reversible error when it determined that Reed was absolutely immune from suit for both the act of advising the officers that they should proceed to hypnotize her and for his act of eliciting false testimony during the probable cause hearings.2 She contends
In Imbler, the Court held that a prosecutor enjoys absolute immunity from suits for damages under
public trust of the prosecutor‘s office would suffer if he [or she] were constrained in making every decision by the consequences in terms of his [or her] own potential liability in a suit for damages. Such suits could be expected with some frequency,.... Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.
Id. at 424-25, 96 S.Ct. at 992-93. Finally, the Court reasoned that if prosecutors approached their law enforcement duties ever fearful of their potential liability, the criminal justice system as a whole would be impaired. Id. at 426-27, 96 S.Ct. at 993-94.
In determining that a prosecutor‘s absolute immunity at common law applies to suits under
We recognize that the duties of the prosecutor in his [or her] role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his [or her] duty as such, to make decisions on a wide variety of sensitive issues. These include questions whether to present a case to the grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing the proper lines be-
tween these functions may present difficult questions....
Id. at 431 n. 33, 96 S.Ct. at 995 n. 33.
The Court‘s functional test for determining the reach of a prosecutor‘s absolute immunity has engendered a case-by-case approach to the question. See Marx v. Gumbinner, 855 F.2d 783, 789 (11th Cir. 1988) (“the dividing line is amorphous, and the process of determining on which side of the line particular kinds of conduct fall has proceeded on a case-by-case basis“).3 In this circuit, which has visited the issue on a number of occasions, the functional test has been applied broadly in instances where state officials are required or called upon to render legal opinions or advice. For example, in Mother Goose Nursery Schools, Inc. v. Sendak, 770 F.2d 668, 671 (7th Cir.1985), we reaffirmed that the Indiana Attorney General acts in a quasi-judicial capacity when reviewing the legality and form of state contracts pursuant to state statute. Id. at 671 (reaffirming Citizen Energy Coalition of Indiana, Inc. v. Sendak, 594 F.2d 1158 (7th Cir.1979)). With reference to the Attorney General‘s determination of the legality of a contract, we likened this duty to “the everyday ‘work’ of lawyers and judges,” and found it distinguishable from mere ministerial tasks. Id. at 674 n. 4. Upon applying the factors enumerated in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), for determining whether official conduct enjoys absolute immunity,4 we concluded that the Indiana Attorney General is absolutely immune from suit under
In Henderson v. Lopez, 790 F.2d 44 (7th Cir.1986), we drew upon our analysis in Mother Goose to determine whether an Illinois state‘s attorney is absolutely immune from suit when giving advice to a county sheriff about whether to detain an individual on contempt charges. Upon reviewing the factors delineated in Butz, we concluded that an assistant state‘s attorney functions in a quasi-judicial role when providing such legal advice to county officials. Accordingly, we held that a state‘s attorney is absolutely immune from suit under
A number of other circuits have reached similar conclusions by applying the Supreme Court‘s functional analysis in Imbler. In Marx v. Gumbinner, 855 F.2d at 790, for example, the Eleventh Circuit held that a prosecutor rendering legal advice to police officers regarding the existence of probable cause to make an arrest is absolutely immune from suit. The court reasoned that a prosecutor‘s legal determination regarding the existence of probable cause is part and parcel of the larger process of determining whether to initiate a prosecution. The Marx Court thus con-
The question presented in the case at hand is whether the reach of our decisions in Henderson and the other circuits’ decisions in Marx and Myers should be extended to instances where a state prosecutor is asked by a police officer to provide a legal opinion about the propriety of proposed investigative conduct.6 Following this Circuit‘s reliance on Butz, we conclude that a prosecutor is absolutely immune from suit when acting as a legal advisor to police officers.
Admittedly, our review of the historical or commonlaw 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. Nonetheless, an early decision by the Indiana Supreme Court reveals the breadth of the reasoning supporting the immunity at common law. In holding that a prosecutor is absolutely immune from suit for malicious prosecution, the court drew upon the following principle:
Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said duties are performed. If corrupt, he may be impeached or indicted; but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done.
Griffith v. Slinkard, 146 Ind. 117, 119, 44 N.E. 1001, 1002 (1896) (quoting Townsh. Sland. & L. (3d Ed.) § 227, pp. 395-96). Under this articulation of the common law principle, the dispositive question is whether the conduct of the prosecutor is of a judicial nature and requires the prosecutor to exercise analogous judgment. In Henderson, we concluded that when a state‘s attorney serves as the legal advisor to county officials, she functions in a manner similar to both her role as a prosecutor and to that of a judge. “[I]n both functions, the state‘s attorney has the responsibility to review the facts of a given case and to arrive at an opinion concerning legality.... when functioning as an advice giver, the state‘s attorney has the ultimate decision on legality.” Henderson, 790 F.2d at 46. This same conclusion applies here since an Indiana prosecutor‘s statutory responsibilities are sufficiently parallel to those of an Illinois state‘s attorney. See
Under Butz, the second factor we must consider is whether the prosecutor‘s functions as a legal advisor to police officers subjects the prosecutor to “the same obvious risks of entanglement in vexatious litigation as is characteristic of the judicial process.” Mother Goose, 770 F.2d at 671. We have little doubt that a prosecutor‘s
The third factor which we must consider is whether there are sufficient checks upon the prosecutor to prevent abuses of the authority to render legal opinions free from liability. The first check upon such abuses lies in the judicial process itself. As the Supreme Court has recognized, “the judicial process is largely self-correcting; procedural rules, appeals and the possibility of collateral challenges obviate the need for damages to prevent unjust results.” Mitchell v. Forsyth, 472 U.S. 511, 522-23, 105 S.Ct. 2806, 2813-14, 86 L.Ed.2d 411 (1985). Prosecutors well know that investigative techniques resulting in the violation of a suspect‘s constitutional rights will result in the suppression of evidence prior to trial or on appeal. Furthermore, a prosecutor who abuses his or her powers will have to answer to the electorate every four years. See
The remaining question is whether Reed merely gave legal advice to Officers Cox and Scroggins or whether he participated in the investigation. The officers testified that they called Reed at his home to seek his advice about the propriety of their intentions to hypnotize and question the appellant. Officer Cox testified that they called Reed because he was the police liaison for the Prosecutor‘s office. Both officers emphasized that they were seeking Reed‘s legal opinion about their proposed course of action. Based on the foregoing testimony, it is apparent that Reed was rendering legal advice to the officers and should be immune from suit, even if he did render unsound advice.7
For the foregoing reasons, the district court‘s order directing the verdict in favor of the defendant is hereby
AFFIRMED.
RIPPLE, Circuit Judge, concurring.
I concur in the judgment and opinion of the court. I write separately to stress the limited scope of the court‘s holding. The court holds that a prosecutor enjoys absolute immunity with respect to legal advice given to law enforcement officers; it does not hold that such absolute immunity nec-