Burns v. Reed, No.
500 U.S. 478 (1991)

Annotate this Case

U.S. Supreme Court

Burns v. Reed, No., 500 U.S. 478 (1991)

Burns v. Reed

No. 89-1715

Argued Nov. 28, 1990

Decided May 30, 1991

500 U.S. 478

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Syllabus

Suspecting that petitioner Burns had multiple personalities, one of which shot her sons while they slept, Indiana police sought the advice of respondent Reed, a state prosecutor, who told them they could question Burns under hypnosis. While hypnotized, Burns referred to both herself and the assailant as "Katie." Interpreting this as support for their multiple-personality theory, the officers detained Burns and again sought the advice of Reed, who told them that they "probably had probable cause" to arrest her. During a subsequent county court probable cause hearing on a search warrant, one of the officers testified, in response to Reed's questioning, that Burns had confessed to the shootings, but neither the officer nor Reed informed the judge that the "confession" was obtained under hypnosis or that Burns had otherwise consistently denied guilt. The warrant was issued on the basis of this misleading presentation, and Burns was charged with attempted murder, but her motion to suppress the statements given under hypnosis was granted before trial, and the charges were dropped. She then filed suit under 42 U.S.C. § 1983 against Reed, inter alios, alleging violations of various rights under the Federal Constitution and seeking compensatory and punitive damages. The District Court granted Reed a directed verdict, and the Court of Appeals affirmed, holding that he was absolutely immune from liability for giving legal advice to the officers and for his conduct at the probable cause hearing.

Held: A state prosecuting attorney is absolutely immune from liability for damages under § 1983 for participating in a probable cause hearing, but not for giving legal advice to the police. Pp. 500 U. S. 484-496.

(a) Imbler v. Pachtman,424 U. S. 409, held that, in light of the immunity historically accorded prosecutors at common law and the interests supporting that immunity, state prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and in presenting the State's case," id. at 424 U. S. 431, insofar as that conduct is "intimately associated with the judicial phase of the criminal process," id. at 424 U. S. 430. Subsequent decisions are consistent with this functional approach, and have emphasized that the official seeking absolute immunity bears the burden of showing that it is justified by the function in question. See, e.g., Forrester v. White,484 U. S. 219, 484 U. S. 224. Pp. 500 U. S. 484-487.

Page 500 U. S. 479

(b) The absolute immunity recognized in Imbler is applicable to Reed's appearance in court to support the search warrant application and his presentation of evidence at that hearing. Burns claims only that Reed presented false evidence to the county court, and thereby facilitated the issuance of the warrant. Such conduct was clearly addressed by the common law, which immunized a prosecutor, like other lawyers, from civil liability for making, or for eliciting from witnesses, false or defamatory statements in judicial proceedings, at least so long as the statements were related to the proceedings. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-402, summarily aff'd, 275 U.S. 503. Moreover, this immunity extended to any hearing before a tribunal which performed a judicial function. See, e.g., ibid. In addition to such common law support, absolute immunity in these circumstances is justified by the policy concerns articulated in Imbler. Reed's actions clearly involve his "role as advocate for the State," see 424 U.S. at 424 U. S. 431, n. 33, rather than his role as "administrator or investigative officer," the protection for which the Court reserved judgment in Imbler, see id. at 424 U. S. 430-431, and n. 33. Moreover, since the issuance of a warrant is unquestionably a judicial act, appearing at a probable cause hearing is "intimately associated with the judicial phase of the criminal process." It is also connected with the initiation and conduct of a prosecution, particularly where, as here, the hearing occurs after the arrest. Furthermore, since 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 prosecutor's independence, absolute immunity serves the policy of protecting the judicial process, see id. at 424 U. S. 422-423, which, in any event, serves as a check on prosecutorial actions, see id. at 424 U. S. 429. Pp. 500 U. S. 487-492.

(c) However, Reed 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. Neither he nor the court below has identified any historical or common law support for such an extension. American common law was aware of the office of public prosecutor, and must guide this Court, which does not have a license to establish immunities from § 1983 actions in the interests of what it judges to be sound public policy. Nor do other factors authorize absolute immunity in these circumstances. The risk of vexatious litigation is unavailing, since a suspect or defendant is not likely to be as aware of a prosecutor's role in giving advice as his role in initiating and conducting a prosecution, and since absolute immunity is designed to free the judicial process, rather than every litigation-inducing conduct, from harassment and intimidation. The qualified immunity standard, which is today more protective of officials than it was at the time Imbler was decided,

Page 500 U. S. 480

provides ample support to all but the plainly incompetent or those who knowingly violate the law. The argument that giving legal advice is related to a prosecutor's role in screening cases for prosecution and in safeguarding the fairness of the criminal judicial process proves too much, since almost any action by a prosecutor could be said to be in some way related to the ultimate decision whether to prosecute. Moreover, that argument was implicitly rejected in Mitchell v. Forsyth,472 U. S. 511. Furthermore, although there are several checks other than civil litigation to prevent abuses of authority by prosecutors, one of the most important of those checks, the judicial process, will not necessarily restrain a prosecutor's out-of-court activities that occur prior to the initiation of a prosecution, particularly if the suspect is not eventually prosecuted. Advising the police in the investigative phase of a criminal case is not so "intimately associated with the judicial phase of the criminal process" that it qualifies for absolute prosecutorial immunity. Pp. 500 U. S. 492-496.

894 F.2d 949, affirmed in part and reversed in part.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BLACKMUN, J., joined, and in Part III of which MARSHALL, J., joined, post, p. 500 U. S. 496.

Page 500 U. S. 481

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 42 U.S.C. § 1983 for giving legal advice to the police and for participating in a probable cause hearing. The Court of Appeals for the Seventh Circuit held that he is. 894 F.2d 949. We reverse in part.

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

Page 500 U. S. 482

examination and a voice stress test, submitted exculpatory handwriting samples, and repeatedly denied shooting her sons.

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 Tr. 221. Based on that assurance, the officers placed petitioner under arrest. [Footnote 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

Page 500 U. S. 483

shooting her sons. On the basis of the misleading presentation, the judge issued a search warrant.

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 42 U.S.C. § 1983 for violating her rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and she sought compensatory and punitive damages. Petitioner reached a settlement with several of the defendants, and the case proceeded to trial against respondent. After petitioner presented her case, the District Court granted respondent a directed verdict, finding that respondent was absolutely immune from liability for his conduct.

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, [Footnote 2] we granted certiorari. 497 U.S. 1023 (1990).

Page 500 U. S. 484

II

Title 42 U.S.C. § 1983 is written in broad terms. It purports to subject "[e]very person" acting under color of state law to liability for depriving any other person in the United States of "rights, privileges, or immunities secured by the Constitution and laws." [Footnote 3] The Court has consistently recognized, however, that § 1983 was not meant "to abolish wholesale all common law immunities." Pierson v. Ray,386 U. S. 547, 386 U. S. 554 (1967). The section is to be read "in harmony with general principles of tort immunities and defenses, rather than in derogation of them." Imbler v. Pachtman,424 U. S. 409, 424 U. S. 418 (1976); see also Tenney v. Brandhove,341 U. S. 367, 341 U. S. 376 (1951). In addition, we have acknowledged that, for some "special functions," Butz v. Economou,438 U. S. 478, 438 U. S. 508 (1978), it is

"'better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.'"

Imbler, supra, 424 U.S. at 424 U. S. 428 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949) (Hand, J.), cert. denied, 339 U.S. 949 (1950)).

Imbler, supra, was the first case in which the Court addressed the immunity of state prosecutors from suits under

Page 500 U. S. 485

§ 1983. [Footnote 4] Noting that prior immunity decisions were "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and interests behind it," the Court stated that the "liability of a state prosecutor under § 1983 must be determined in the same manner." Id. 424 U.S. at 424 U. S. 421. The Court observed that, at common law, prosecutors were immune from suits for malicious prosecution and for defamation, and that this immunity extended to the knowing use of false testimony before the grand jury and at trial. Id. at 424 U. S. 421-424, 424 U. S. 426, and n. 23.

The interests supporting the common law immunity were held to be equally applicable to suits under § 1983. That common law immunity, like the common law immunity for judges and grand jurors, was viewed as necessary to protect the judicial process. Id. at 424 U. S. 422-423. Specifically, there was

"concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust."

Id. at 424 U. S. 423.

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 424 U. S. 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 prosecutor's

Page 500 U. S. 486

duty that is essential to the proper functioning of the criminal justice system,"

id. at 424 U. S. 427-428. The Court also noted that there are other checks on prosecutorial misconduct, including the criminal law and professional discipline, id. at 424 U. S. 429.

The Court therefore held that prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and in presenting the State's case," id. at 424 U. S. 431, insofar as that conduct is "intimately associated with the judicial phase of the criminal process," id. at 424 U. S. 430. Each of the charges against the prosecutor in Imbler involved conduct having that association, including the alleged knowing use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. The Court expressly declined to decide whether absolute immunity extends to

"those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer, rather than that of an advocate."

Id. at 424 U. S. 430-431. It was recognized, though, that

"the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom."

Id. at 424 U. S. 431, n. 33.

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, 484 U. S. 296, n. 3 (1988); Forrester v. White,484 U. S. 219, 484 U. S. 224 (1988); Malley v. Briggs,475 U. S. 335, 475 U. S. 342-343 (1986); Mitchell v. Forsyth,472 U. S. 511, 472 U. S. 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, 484 U.S. at 484 U. S. 224; Malley, supra, 475 U.S. at 475 U. S. 340; Harlow, supra, 457 U.S. at 457 U. S. 812; Butz, supra, 438 U.S. at 438 U. S. 506. The presumption is that qualified, rather than absolute, immunity is sufficient to protect government officials in the exercise of their

Page 500 U. S. 487

duties. We have been "quite sparing" in our recognition of absolute immunity, Forrester, supra, 484 U.S. at 484 U. S. 224, and have refused to extend it any "further than its justification would warrant." Harlow, supra, 457 U.S. at 457 U. S. 811.

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 petition

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 § 1983 suit for that conduct.

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 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,

Page 500 U. S. 488

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."

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