KALINA v. FLETCHER
No. 96-792
Supreme Court of the United States
Argued October 7, 1997-Decided December 10, 1997
522 U.S. 118
Norm Maleng argued the cause for petitioner. With him on the briefs were Michael C. Duggan and John W. Cobb.
Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Barbara L. Herwig, and Peter R. Maier.
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether
I
Petitioner is a deputy prosecuting attorney for King County, Washington. Following customary practice, on December 14, 1992, she commenced a criminal proceeding
Washington Criminal Rules require that an arrest warrant be supported by an affidavit or “sworn testimony establishing the grounds for issuing the warrant.”1 To satisfy that requirement, petitioner supported her motion with a third document-a “Certification for Determination of Probable Cause” that summarized the evidence supporting the charge. She personally vouched for the truth of the facts set forth in the certification under penalty of perjury.2 Based on petitioner‘s certification, the trial court found probable cause and ordered that an arrest warrant be issued.
Petitioner‘s certification contained two inaccurate factual statements. After noting that respondent‘s fingerprints had been found on a glass partition in the school, petitioner stated that respondent had “never been associated with the school in any manner and did not have permission to enter the school or to take any property.”3 In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent “from a photo montage” as the person who had asked for an appraisal of a computer stolen from the school.4 In fact, the employee did not identify respondent.5
II
Respondent brought this action under
The Ninth Circuit first noted that under our decision in Malley v. Briggs, 475 U. S. 335 (1986), “a police officer who secures an arrest warrant without probable cause cannot assert an absolute immunity defense,” and then observed that petitioner‘s “actions in writing, signing and filing the declaration for an arrest warrant” were “virtually identical to the police officer‘s actions in Malley.” 93 F. 3d 653, 655-656 (1996). Relying on the functional approach endorsed in Buckley v. Fitzsimmons, the Court of Appeals concluded that “it would be ‘incongruous’ to expose police to potential liability while protecting prosecutors for the same act.” 93 F. 3d, at 656.
III
Section 1983 is a codification of § 1 of the Civil Rights Act of 1871.9 The text of the statute purports to create a damages remedy against every state official for the violation of any person‘s federal constitutional or statutory rights.10 The coverage of the statute is thus broader than the preexisting common law of torts. We have nevertheless recognized that Congress intended the statute to be construed in the light of common-law principles that were well settled at the time of its enactment. See Tenney v. Brandhove, 341 U. S. 367 (1951); Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Thus, we have examined common-law doctrine when identifying both the elements of the cause of action and the defenses available to state actors.
In Imbler v. Pachtman, 424 U. S. 409 (1976), we held that a former prisoner whose conviction had been set aside in collateral proceedings could not maintain a § 1983 action against the prosecutor who had litigated the charges against him. Relying in part on common-law precedent, and per-
Liberally construed, Imbler‘s complaint included not only a charge that the prosecution had been wrongfully commenced, but also a charge that false testimony had been offered as well as a charge that exculpatory evidence had been suppressed. His constitutional claims were thus broader than any specific common-law antecedent. Nevertheless, relying on common-law decisions providing prosecutors with absolute immunity from tort actions based on claims that the decision to prosecute was malicious and unsupported by probable cause,11 as well as from actions for defamation based on statements made during trial,12 we concluded that
Those considerations included both the interest in protecting the prosecutor from harassing litigation that would divert his time and attention from his official duties and the interest in enabling him to exercise independent judgment when “deciding which suits to bring and in conducting them in court.” Id., at 424. The former interest would lend support to an immunity from all litigation against the occupant of the office whereas the latter is applicable only when the official is performing functions that require the exercise of prosecutorial discretion. Our later cases have made it clear that it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.
In Imbler, we did not attempt to define the outer limits of the prosecutor‘s absolute immunity, but we did recognize that our rationale would not encompass some of his official activities. Thus, while we concluded that Pachtman‘s “activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force,” id., at 430, we put to one side “those aspects of the prosecutor‘s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate,” id., at 430-431.
Subsequent cases have confirmed the importance to the judicial process of protecting the prosecutor when serving as an advocate in judicial proceedings. Thus, in Burns v. Reed, 500 U. S. 478 (1991), after noting the consensus among the Courts of Appeals concerning prosecutorial conduct before grand juries, id., at 490, n. 6, we held that the prosecutor‘s
In both of those cases, however, we found the defense unavailable when the prosecutor was performing a different function. In Burns, the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity. 500 U. S., at 492-496. Similarly, in Buckley, the prosecutor was not acting as an advocate either when he held a press conference, 509 U. S., at 276-278, or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:
“There is a difference between the advocate‘s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective‘s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’ Hampton v. Chicago, 484 F. 2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U. S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he ‘has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.’ 484 F. 2d, at 608-609.” Id., at 273-274.
In Malley we considered, and rejected, two theories on which immunity might have been accorded to a police officer who had caused an unconstitutional arrest by presenting a judge with a complaint and supporting affidavit that failed to establish probable cause. His first argument, that his function was comparable to that of a complaining witness, actually militated against his claim because such witnesses were subject to suit at common law.14
“As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. Cf. Imbler v. Pachtman, 424 U. S. 409 (1976).
“... We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner‘s analogy, while it has some force, does not take account of the fact that the prosecutor‘s act in seeking an indictment is but the first step in the process of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process.” 475 U. S., at 341-343.
IV
The Fourth Amendment requires that arrest warrants be based “upon probable cause, supported by Oath or affirmation“-a requirement that may be satisfied by an indictment returned by a grand jury, but not by the mere filing of criminal charges in an unsworn information signed by the prosecutor. Gerstein v. Pugh, 420 U. S. 103, 117 (1975); see also Coolidge v. New Hampshire, 403 U. S. 443 (1971). Accordingly, since most prosecutions in Washington are commenced by information, Washington law requires, in compliance with the constitutional command, that an arrest warrant be supported by either an affidavit “or sworn testimony establishing the grounds for issuing the warrant.”15 The “Certification for Determination of Probable Cause” executed by petitioner was designed to satisfy those requirements.
Although the law required that document to be sworn or certified under penalty of perjury, neither federal nor state law made it necessary for the prosecutor to make that certification. In doing so, petitioner performed an act that any
Nevertheless, petitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how
Finally, petitioner argues that denying her absolute immunity will have a “chilling effect” on prosecutors in the administration of justice.18 We are not persuaded.
It may well be true that prosecutors in King County may abandon the practice of routinely attesting to the facts recited in a “Certification for Determination of Probable Cause” and pattern their procedures after those employed in other parts of the Nation. Petitioner presents no evidence that the administration of justice is harmed where the King County practice is not followed. In other respects, however, her argument addresses concerns that are not affected by our decision because we merely hold that § 1983 may provide a remedy for respondent insofar as petitioner performed the function of a complaining witness. We do not depart from our prior cases that have recognized that the prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate. See Imbler, 424 U. S., at 431; Buckley, 509 U. S., at 273.
Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is
Affirmed.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I agree that Ms. Kalina performed essentially the same “function” in the criminal process as the police officers in Malley v. Briggs, 475 U. S. 335 (1986), and so I join the opinion of the Court. I write separately because it would be a
There was, of course, no such thing as absolute prosecutorial immunity when § 1983 was enacted. (Indeed, as the Court points out, ante, at 124, n. 11, there generally was no such thing as the modern public prosecutor.) The common law recognized a “judicial” immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by “quasi-judicial” immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call “qualified,” rather than absolute, immunity. I continue to believe that “prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial.” Burns v. Reed, 500 U. S. 478, 500 (1991) (SCALIA, J., concurring in judgment in part and dissenting in part).
That conclusion accords with the common law‘s treatment of private prosecutors, who once commonly performed the “function” now delegated to public officials like petitioner. A private citizen who initiated or procured a criminal prosecution could (and can still) be sued for the tort of malicious prosecution-but only if he acted maliciously and without
The common law also recognized an absolute immunity for statements made in the course of a judicial proceeding and relevant to the matter being tried. That immunity protected both witnesses and attorneys, and could not be defeated even by an allegation that the statement was maliciously false. See, e. g., F. Hilliard, Law of Torts 319 (1866). It was, however, an immunity only against slander and libel actions.
At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal charges against Fletcher, and liability would attach only if Fletcher could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. Kalina‘s false statements as a witness in support of the warrant application would not have been an independent actionable tort (although they might have been evidence of malice or initiation in the malicious prosecution suit), because of the absolute privilege protecting such testimony from suits for defamation.
The Court‘s long road to what is, superficially at least, the opposite result in today‘s opinion, began with Imbler v. Pachtman, 424 U. S. 409 (1976), which granted prosecutors absolute immunity for the “function” of initiating a criminal prosecution. Then, in Briscoe v. LaHue, 460 U. S. 325 (1983), the Court extended a similar absolute immunity to the “function” of serving as a witness. And in Malley v. Briggs, supra, it recognized the additional “functional category” of “complaining witness.” Since this category was
“[C]omplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity.” Id., at 340-341.
That statement is correct, but it implies a distinction between “witnesses” (absolutely immune) and “complaining witnesses” (at best qualifiedly immune) which has little foundation in the common law of 1871. That law did not recognize two kinds of witness; it recognized two different torts. “In this sense, then, Malley‘s discussion of complaining witnesses is a feint. The Court was not awaking to a different type of witness... so much as recognizing a different cause of action-the action for malicious prosecution.” Comment, Police Witness Immunity Under § 1983, 56 U. Chi. L. Rev. 1433, 1454 (1989). By the time Malley was decided, however, the Court‘s methodology forced it to express its conclusion in terms of whether the particular “function” at issue would have been entitled to immunity at common law. See, e. g., Briscoe, supra, at 342 (“[O]ur cases clearly indicate that immunity analysis rests on functional categories“). By inventing “a new functional category: the complaining witness, who (in the Court‘s specially-tailored history) was liable at common law and so is liable under § 1983,” Comment, supra, at 1454, Malley moved the Court‘s immunity jurisprudence much closer to the results the common law would have achieved.
Imbler‘s principle of absolute prosecutorial immunity, and the “functional categories” approach to immunity questions imposed by cases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the “functional” approach are so deeply embedded in our § 1983 jurisprudence that, for reasons of stare decisis, I would not abandon them now. Given those concessions, Malley‘s distortion of the term “complaining witness” may take us as close to the right answer as we are likely to get. Because Kalina‘s conduct clearly places her in that functional category, I agree with the Court that she is not entitled to absolute immunity under our precedents.