Kenneth B. KROHN, Plaintiff, Appellee, v. UNITED STATES of America, et al., Defendants, Appellants.
No. 83-1839.
United States Court of Appeals, First Circuit.
Argued April 5, 1984. Decided Aug. 22, 1984.
Opinion on Denial of Rehearing Sept. 28, 1984.
742 F.2d 24
Richard E. Welch, III, Asst. U.S. Atty., Boston, Mass., with whom Mark L. Wolf, Acting U.S. Atty., and Paul W. Johnson, Asst. U.S. Atty., Boston, Mass., were on brief, for defendants, appellants.
Kenneth B. Krohn, pro se.
Before COFFIN and ALDRICH, Circuit Judges, and BONSAL,* Senior District Judge.
Plaintiff‘s amended complaint, originally in 44 counts, asserts civil damages claims for false arrest and other civil rights violations arising from an FBI investigation into the unexplained disappearance in 1973 of one Raul Hernandez-Bustamonte. Of the claims relating to actions in 1973, only part of one count, count 28, remains for our consideration; a number of counts remain with respect to actions in 1974. Count 28 has been before us once. Krohn v. United States, 566 F.2d 1166 (1st Cir. 1977) (unpublished). Presently, the defendant federal officials appeal from the district court‘s denial of their defenses of absolute and qualified immunity, raising obvious questions of appealability. 578 F. Supp. 1441.
Plaintiff was arrested in 1973 on a kidnapping charge, pursuant to a duly issued federal warrant. The arrest followed an investigation which included searches of various of plaintiff‘s properties, including a safe deposit box in Boston. This charge was eventually dropped, but the investigation continued, and in 1974 plaintiff was again arrested, on the same charge, on a new federal warrant. At that time a Maryland arrest warrant also issued, charging plaintiff with Hernandez‘s murder. Plaintiff claims that this warrant was procured at the request of the federal officials, and entirely on information supplied by them.
The federal charges were dismissed by a magistrate for want of probable cause, and
What remains of count 28 alleges a state law claim against a federal prosecutor, William Brown, several agents of the FBI, and plaintiff‘s former attorney, James Pool, for conspiracy to convert plaintiff‘s property contained in the Boston safe deposit box. Plaintiff claims that during the investigation, Brown and Pool struck a deal whereby Brown would supply the key in his possession due to a prior search of plaintiff‘s apartment if Pool would supply the location of the box so that Brown might search it. Plaintiff claims that Pool “stole” several thousand dollars from the box, (a palpable exaggeration, see n. 7, post) and that Brown knew of Pool‘s intentions when he struck the deal. Brown and the FBI officers1 now claim an absolute immunity from such a state law claim, under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).
The remaining claims are brought directly under the Constitution, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under
Essentially, then, these claims allege the constitutional violation recognized in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where the Court held that a warrant issued upon a magistrate‘s finding of probable cause is nevertheless invalid, and the evidence obtained thereunder may be suppressed, if the affiant made intentional or reckless misrepresentations or misstatements which were necessary to that finding. See also Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974). Any further allegations of impropriety do not state constitutional violations. As to the arrest pursuant to the federal warrant, if the affidavit, disregarding improper misstatements, still established probable cause, plaintiff is entitled to no further constitutional safeguards, see Franks, ante, 438 U.S. at 172 n. 8, 98 S.Ct. at 2684 n. 8; cf. Baker v. McCollan, 443 U.S. 137, 142-46, 99 S.Ct. 2689, 2693-95, 61 L.Ed.2d 433 (1979), and any intentional misstatement, or actual malice, would be irrelevant. Nor is there any impropriety in sharing information with the state officials, cf. Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959), or any constitutional violation in urging them to obtain a warrant, as long as the available information established probable cause.34 And a federal official does not
Plaintiff‘s allegations of impropriety in 1974 thus reduce to what the federal officials knew concerning the existence of probable cause when they took various actions. Defendant officials claim that they are entitled to summary judgment under the qualified immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), inasmuch as these claims merely allege subjective bad faith, which Harlow held was no longer sufficient to avoid the qualified executive immunity. The lower court denied the immunity claims without citing Harlow. Before we reach the merits, however, we must decide whether the various denials are appealable.
1. Appealability
a. Absolute immunity
Recently, in Agromayor v. Colberg, 738 F.2d 55 (1st Cir. 1984), we held that the denial of a plausible claim of absolute legislative immunity is an immediately appealable “final decision” under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), inasmuch as one of the elements of the immunity is freedom from having to stand trial. For appealability purposes, we see no distinction between the immunity claimed there and the absolute immunity from common law suits for federal officials acting within the scope of their authority here claimed by defendant Brown and the other federal officials. It is perhaps true that reasons other than freedom from having to stand trial, such as federalism concerns, are of greater importance in granting immunity from common law suits than they are in other immunities whose denials have been held to merit immediate appeal; nevertheless, Barr v. Matteo, ante, makes clear that one of the immunity‘s purposes is to absolve federal officials from the burden of having to stand trial. Barr, ante, 360 U.S. at 571, 79 S.Ct. at 1339. And Brown‘s claim certainly is plausible, especially in light of the discussion of Barr in Butz v. Economou, 438 U.S. 478, 494-95, 98 S.Ct. 2894, 2904-05, 57 L.Ed.2d 895 (1978), and in the Courts of Appeals. See post. We accordingly have jurisdiction over the appeal in count 28.
b. Qualified immunity
The appealability of the denials of qualified immunity presents a more difficult question. Several circuits have now addressed the issue, with different approaches, and differing results. The controversy centers on interpreting the Supreme Court‘s opinion in Harlow, ante, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The question is whether, in enlarging the executive official‘s qualified immunity, the
We consider that the importance which Harlow gave the immunity, or, to put it another way, the inhospitality it evidenced towards groundless suits against officials, would best be effected by making denials of the immunity immediately appealable, assuming a plausible claim thereto. As Harlow noted, up until then the so-called “good faith” immunity would be defeated if an official
”knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or, if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury ...” (Emphasis in original.) Harlow, ante, 457 U.S., at 815, 102 S.Ct., at 2737.
Harlow eliminated the second, the state of mind, or purely “subjective” element of this immunity, leaving only objective criteria, requiring an affirmative showing, and thus more easily subject to judicial resolution prior to trial.
One of the reasons the Court gave for this was to cut off insubstantial claims in limine. Such claims proceed to trial at
“a cost not only to the defendant officials, but to the society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Id., at 814, 102 S.Ct., at 2736.
The majority of the court in Forsyth v. Kleindienst, ante, although it observed Harlow, accepted the following language from the court‘s dissenting opinion in an earlier Forsyth appeal.
“[C]oncern over subjecting government officials to unwarranted claims is best handled through adjustment of the substantive rules of law, as the Supreme Court has recently done, and not by changing the established practice of limiting appellate review of interlocutory decisions.” Forsyth, ante, 729 F.2d at 273.
This language would seem precisely to overlook what the Court did in Cohen, ante, namely, adopt a novel procedure, that would meet the need of the substantive law. If one of the law‘s purposes is to avoid trial of an insubstantial case, this can be fully effected only by permitting interlocutory appeal. We do not follow Forsyth‘s reasoning to the contrary.
We recognize, of course, the interests in finality and the problems of piecemeal adjudication that ordinarily counsel against appeal from non-final orders. See Forsyth, ante, 729 F.2d at 274. Further, we are cognizant that qualified immunity differs from absolute immunity in that it is not so readily decided by motion; obviously, on some occasions officials possessing only qualified immunity must stand trial. At the same time, we see no more reason why an official whose qualified immunity has not been impeached should have to stand trial, and have the benefits the Court saw in Harlow “cancelled out,” see Abney v. United States, 431 U.S. 651, 662 n. 7, 97 S.Ct. 2034, 2041 n. 7, 52 L.Ed.2d 651 (1977), than an official whose immunity was unimpeachable to begin with.
Courts accepting jurisdiction over qualified immunity appeals have stated the rule two ways. In McSurely, ante, 697 F.2d at 315-16, the District of Columbia Circuit held denials of summary judgment immediately appealable, but then, on review, affirmed the denial on an evidentiary showing that would defeat the privilege. In Evans, ante, the Eighth Circuit professed to reject McSurely, and ruled that immedi-
2. The Merits
a. The conversion claim—availability of the defense of absolute immunity.
Plaintiff first raises a procedural bar to defendant Brown‘s claim of absolute immunity. The issue of his qualified immunity was before us earlier, on appeal from the district court‘s granting him summary judgment. Krohn, ante. In that decision, which was pre-Harlow, we reversed, holding that the evidence raised a sufficient issue of fact to overcome qualified immunity. Barr v. Matteo absolute immunity was not raised in the district court, or on appeal, but absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), was raised in Brown‘s motion, and alluded to on appeal. Plaintiff now contends that all claims of absolute immunity are precluded, or waived, noting, by way of argument, that Brown never has filed an answer.
We disagree. First, Brown‘s failure to file an answer apparently was occasioned because five other federal defendants filed a joint answer after the claim against Brown had been dismissed and before its reinstatement by this court. Thus Brown‘s name was not included. That answer pleaded the officials’ immunities with sufficient clarity to preserve an absolute immunity defense. Second, we do not find Brown precluded by our prior decision.
b. The conversion claim—absolute immunity
As to the defense itself, we must agree with Brown and the other federal defendants that whatever the strength or weakness of the plurality opinion in Barr, the subsequent opinion in Butz indicates that certain federal officials are absolutely immune from common law tort suits for discretionary actions taken “within the outer perimeter of [the official‘s] line of duty.”6 Butz, ante, 438 U.S. at 487-88, 494-95, 98 S.Ct. at 2904-05; Barr, 360 U.S. at 575, 79 S.Ct. at 1341; see also Harlow, ante, 457 U.S. at 807-08, 102 S.Ct. at 2732-33. This also has been the interpretation of the Courts of Appeals. See, e.g., Wallen v. Domm, 700 F.2d 124 (4th Cir. 1983); Miller v. DeLaune, 602 F.2d 198 (9th Cir. 1979); Evans v. Wright, 582 F.2d 20 (5th Cir. 1978); cf. Gray v. Bell, 712 F.2d 490, 505-06 (D.C. Cir. 1983); Granger v. Marek, 583 F.2d 781, 784-85 (6th Cir. 1978); Berberian v. Gibney, 514 F.2d 790, 793 (1st Cir. 1975). Here plaintiff‘s remaining suit is under state law, for conspiracy to convert his property, so that the first requirement clearly is met. It is less clear, however, that Brown was acting within the scope of his authority as a federal prosecutor when he struck the deal with attorney
To the extent plaintiff argues that the means adopted by Brown were illegal and therefore not entitled to immunity, his argument has been rejected by the Supreme Court because it proves too much. A limitation that absolute immunity from common law suit can only be invoked if the official acted lawfully would swallow the immunity altogether. See Barr, 360 U.S. at 572, 79 S.Ct. at 1340 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949); cf. Butz, 438 U.S. at 494-95, 98 S.Ct. at 2904-05 (”Barr also appear[s] to have extended absolute immunity to an officer who ... was deliberately misusing his authority.“) There is, of course, a limitation to the extent that the means adopted by an official, or the end sought, clearly exceed his authority, and we agree with the lower court that this line may be difficult to draw. Compare Wallen, ante, and Gray, ante, 712 F.2d at 505-06, with Bishop v. Tice, 622 F.2d 349, 359-60 (8th Cir. 1980) and Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965). But we do not believe that Brown, or the FBI agents, crossed it here. Federal prosecutors must investigate as well as prosecute, as evidenced by their express authority to request search warrants. See
Even if, taking plaintiff‘s allegations as true,7 striking a deal with defense counsel in order to obtain evidence which appears detrimental to defendant is of questionable propriety, the ultimate end of gathering evidence for a criminal prosecution was within the official‘s powers, and the means chosen were not “manifestly or palpably beyond [their] authority.” See Gray, ante, 712 F.2d at 505 (quoting Spalding v. Vilas, 161 U.S. 483, 486, 16 S.Ct. 631, 632, 40 L.Ed. 780 (1895)). We uphold the federal officials’ immunity under count 28.
c. The 1974 arrests—absolute immunity
Responding to the counts relating to the 1974 arrests, defendants first assert that plaintiff is collaterally estopped on these claims, in that the United States District Court for the Eastern District of Virginia already has ruled that the government had probable cause for the 1974 arrests, and that decision was not appealed. We disagree. Collateral estoppel applies only to matters actually litigated and decided in the prior proceeding, and which were “essential” to that decision. See Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973); cf. Manning v. Grimsley, 643 F.2d 20, 23 (1st Cir. 1981). The finding here was made in ruling on defendant‘s motion for a speedy trial, in October, 1977. The Virginia court set out the relevant factors in ruling on such a motion. They are the length of delay between arrest and trial, the reason for the delay, whether defendant asserted his speedy trial right, and whether or not he has been prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972). None of the factors directly related to whether the arrest itself was based upon probable cause, but in discussing the reasons for the four year, seven month delay from defendant‘s first arrest in 1973, the court found it necessary to discuss whether such an early arrest was justified. In so doing it ruled that the government “felt” it had probable cause in 1973. It also found that the 1974 arrest was “justified.”
These determinations are not entitled to estoppel effect. First, we are not convinced that the court actually found there was probable cause for the 1974 arrest. Second, a probable cause finding was not essential to the court‘s decision that Krohn‘s speedy trial right had not been violated. The speedy trial right is based on the public‘s interest in prompt justice, and on avoiding prolonged incarceration of accuseds, and the consequent stigma, prior to a legal adjudication of guilt. See Barker, 407 U.S. at 519-20, 92 S.Ct. at 2186-87. The duties imposed thus stem from concerns arising after arrest. Finally, we note that the decision was never appealed because Krohn entered a guilty plea shortly thereafter.
Again, we disagree. The witness immunity discussed in Briscoe is afforded to encourage complete disclosure in judicial proceedings as a means for ascertaining the truth, and, because of its common law roots, is necessarily limited to witnesses in judge-supervised trials. The notion is that witnesses should be encouraged to tell all they know without fear of reprisal, and the judicial process—rules of evidence, cross-examination, and the factfinder—will be able to discern the truth. Cf. Butz, ante, 438 U.S. at 512, 98 S.Ct. at 2913 (“[T]he safeguards built into the judicial process tend to reduce the need for private damage actions as a means of controlling unconstitutional conduct.“) The warrant affidavit process is fundamentally different. As the Court said in Franks, ante, 438 U.S. at 164-65, 98 S.Ct. at 2680-81 (quoting United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y. 1966) (Emphasis in original)
“[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.”
This is because unlike the criminal defendant, who enjoys the immediate right to set the record straight through cross-examination, or by submitting his own evidence, the subject of a warrant must hope that the magistrate can discern inconsistencies in the affiant‘s story at an ex parte hearing. Given this relative lack of procedural safeguards, we think it desirable that officers should, in effect, be required to think twice about allegations in warrant affidavits.
Nor can the second prong of the Briscoe holding—immunity for officers critical to the judicial process—justify an extension to warrant affiants. This court has long held that prosecutors—officials more critical to the judicial process than the police—are not acting in their quasi-judicial capacity when they act as investigators, and consequently do not enjoy absolute immunity for their actions in that role. See Guerro v. Mulhearn, ante, 498 F.2d at 1256. We hold activities such as requesting a warrant not judicial, but administrative, and that absolute immunity does not apply. It is a fair “accommodation of competing values,” Harlow, ante, 457 U.S. at 814, 102 S.Ct. at 2736, that the officer be granted a qualified immunity, only.
d. The 1974 arrests—qualified immunity.
Before dealing with the defense of qualified immunity we must first consider the exact scope of the Harlow ruling. The government takes the position that the objective test there adopted, “what a reasonable official should have known,” and the elimination of a subjective test, eliminates actual, “subjective” knowledge by an official who, objectively, had no reason to know. This is, in reality, a quibble. If a plaintiff proves some peculiar or unusual source, specially known to the defendant, then, by hypothesis, this is what the defendant, as a reasonable man, must take into account.
What Harlow eliminated altogether, as a matter of substance, was not knowledge, but subjective “malice,” perhaps not spelling out malice sufficiently for those unfamiliar with the broad scope of the term, viz., a “bad” state of mind not related to knowledge. In addition, from the standpoint of procedure we read the court‘s strong condemnation of insubstantial suits against government officers as calling for application of the principle earlier voiced in Franks v. Delaware, ante, 438 U.S. at 171, 98 S.Ct. at 2684. A plaintiff, before commencing suit, must be prepared with a prima facie case of defendant‘s knowledge of impropriety, actual or constructive. In order to defeat a motion for summary judgment, or to impose upon the defendant the burdens of pretrial discovery, a plaintiff must show more than “a mere desire to cross-examine” but must furnish “[a]ffidavits or sworn or otherwise reliable statements of witnesses.” Alternatively, but with a much higher burden than is borne by the plaintiff who opposes an ordinary summary judgment motion, a
Our present difficulty is that the district court did not cite Harlow, and apparently applied the old rule. The record is complex, and we are not exactly sure just what is before us, and we think our most appropriate course is to remand the qualified immunity questions for reconsideration in light of this opinion. See Harlow, 457 U.S. at 819-20, 102 S.Ct. at 2739.
The order of the district court on counts 7, 8, 9, 10, 11, and 28 is reversed. Judgment is to enter for defendants other than Pool on count 28. Counts 7, 8, 9, 10, and 11 are remanded in light of this opinion.
MEMORANDUM AND ORDER ON MOTION FOR REHEARING
Per Curiam Other than to repeat previous arguments plaintiff‘s motion for rehearing urges that we over-emphasized his statement that Pool was “disbarred ... on the basis of the conduct about which plaintiff complains in Count 28 ...” and that this disbarment made no reference to stealing his client‘s money. Plaintiff asserts that the theft was simply not included. Even were we to assume the thrust of this assertion, it would not help plaintiff.
Plaintiff does not deny that he authorized Pool to go to the box, or boxes, for money, but he would have it that Brown, as a co-conspirator with respect to evidence in the boxes, must know of, or be vicariously liable for, Pool‘s alleged subsequent misappropriation of funds.
In our earlier opinion we noted that plaintiff had not seen fit to respond to Brown‘s affidavit of ignorance (plaintiff‘s pleading, of course, not constituting such for summary judgment purposes) but felt that Brown had a burden of showing good faith, possibly unmet. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), has changed all that, and has placed a heavy burden on a plaintiff suing a government official to show an objective case in the first instance. By that test, to show that Brown knew Pool was not telling plaintiff what information he had had to disclose in order to obtain access to the money would be insufficient to make out a case he knew Pool was—if he was—planning partially to disobey plaintiff‘s instructions as to what to do with it.
The petition for rehearing is denied.
BAILEY ALDRICH
SENIOR CIRCUIT JUDGE