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."
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 of officers in a subsequent probable cause
hearing."
894 F.2d at 950 (emphasis added).
See also id. at 955,
n. 6.
Page 500 U. S. 489
Finally, the only "question presented" in the Petition for a
Writ of Certiorari that related to the search warrant hearing was
limited to respondent's conduct in the hearing:
"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. [
Footnote
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 § 1983 claim was based on the
allegation that a police officer had given perjured testimony at
the plaintiff's criminal trial. In holding that the officer was
entitled to absolute immunity, we noted that witnesses were
absolutely immune at common law from subsequent damages liability
for their testimony in judicial proceedings "even if the witness
knew the statements were false and made them with malice."
Id. at
460 U. S.
332.
Like witnesses, prosecutors and other lawyers were absolutely
immune from damages liability at common law for
Page 500 U. S. 490
making false or defamatory statements in judicial proceedings
(at least so long as the statements were related to the
proceeding), and also for eliciting false and defamatory testimony
from witnesses.
See, e.g., Yaselli v. Goff, 12 F.2d 396,
401-402 (CA2 1926),
summarily aff'd, 275 U.S. 503 (1927);
Youmans v. Smith, 153 N.Y. 214, 219-220, 47 N.E. 265
(1897);
Griffith v. Slinkard, 146 Ind. 117, 122, 44 N.E.
1001, 1002 (1896);
Marsh v. Ellsworth, 50 N.Y. 309,
312-313 (1872);
Jennings v. Paine, 4 Wis. 358 (1855);
Hoar v. Wood, 44 Mass.193, 197-198 (1841).
See also
King v. Skinner, Lofft 55, 56, 98 Eng.Rep. 529, 530
(K.B.1772), where Lord Mansfield observed that "neither party,
witness, counsel, jury, or Judge can be put to answer, civilly or
criminally, for words spoken in office."
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 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, 146 Ind. at 122, 44 N.E. at 1002;
Schultz
v. Strauss, 127 Wis. 325, 106 N.W. 1066 (1906). [
Footnote 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 prosecutor
Page 500 U. S. 491
is absolutely immune for initiating a prosecution and for
presenting the State's case. 424 U.S. at
424 U. S. 431.
The Court also observed that "the duties of the prosecutor in his
role as advocate for the State involve actions preliminary to the
initiation of a prosecution."
Id. at
424 U. S. 431,
n. 33.
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
424 U. S.
430-431, and n. 33. [
Footnote 7]
Page 500 U. S. 492
Moreover, since the issuance of a search warrant is
unquestionably a judicial act,
see Stump v. Sparkman,
435 U. S. 349,
435 U. S. 363,
n. 12 (1978), appearing at a probable cause hearing is "intimately
associated with the judicial phase of the criminal process."
Imbler, supra, 424 U.S. at
424 U. S. 430.
It is also connected with the initiation and conduct of a
prosecution, particularly where the hearing occurs after arrest, as
was the case here.
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
484 U. S. 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
438 U. S. 512.
See also Mitchell, 472 U.S. at
472 U. S.
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.
Page 500 U. S. 493
The Court of Appeals did observe that Indiana common law
purported to provide immunity "
[w]henever duties of a judicial
nature are imposed upon a public officer.'" Ibid. (quoting
Griffith v. Slinkard, 146 Ind. at 121, 44 N.E. at 1002).
The court then reasoned that giving legal advice is "of a judicial
nature" because the prosecutor is, like a judge, called upon to
render opinions concerning the legality of conduct. We do not
believe, however, that advising the police in the investigative
phase of a criminal case is so "intimately associated with the
judicial phase of the criminal process," Imbler, 424 U.S.
at 424 U. S. 430,
that it qualifies for absolute immunity. Absent a tradition of
immunity comparable to the common law immunity from malicious
prosecution, which formed the basis for the decision in
Imbler, we have not been inclined to extend absolute
immunity from liability under § 1983. See, e.g., Malley,
475 U.S. at 475 U. S.
342.
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,
483 U. S. 644
(1987), and the office of public prosecutor was known to American
common law.
See Imbler, supra, 424 U.S. at
424 U. S.
421-424. Second, although "the precise contours of
official immunity" need not mirror the immunity at common law,
Anderson, supra, 483 U.S. at
483 U. S. 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 § 1983.
Malley,
supra, 475 U.S. at
475 U. S. 342.
"We do not have a license to establish immunities from § 1983
actions in the interests of what we judge to be sound public
policy."
Tower v. Glover, 467 U.
S. 914,
467 U. S.
922-923 (1984). Thus, for example, in
Malley,
supra, it was observed that,
"[s]ince the statute
Page 500 U. S. 494
[§ 1983], on its face, does not provide for any immunities, we
would be going far to read into it an absolute immunity for conduct
which was only accorded qualified immunity in 1871."
Id. 475 U.S. at
475 U. S.
342.
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 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, 484 U.S. at
484 U. S. 226;
Imbler, supra, 424 U.S. at
424 U. S. 430.
Absolute immunity is designed to free the judicial process from the
harassment and intimidation associated with litigation.
Forrester, supra, 484 U.S. at
484 U. S. 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.
[
Footnote 8]
"As the qualified immunity defense
Page 500 U. S. 495
has evolved, it provides ample support to all but the plainly
incompetent or those who knowingly violate the law."
Malley, supra, 475 U.S. at
475 U. S. 341;
see also Mitchell, 472 U.S. at
472 U. S. 524.
Although the absence of absolute immunity for the act of giving
legal advice may cause prosecutors to consider their advice more
carefully, "
[w]here an official could be expected to know that
his conduct would violate statutory or constitutional rights, he
should be made to hesitate.'" Ibid. (quoting
Harlow, 457 U.S. at 457 U. S.
819). Indeed, it is incongruous to allow prosecutors to
be absolutely immune from liability for giving advice to the
police, but to allow police officers only qualified immunity for
following the advice. Cf. Butz, 438 U.S. at 438 U. S.
505-506. Ironically, it would mean that the police, who
do not ordinarily hold law degrees, would be required to know the
clearly established law, but prosecutors would not.
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 Attorney
Page 500 U. S. 496
General was not absolutely immune from liability for authorizing
a warrantless wiretap. Even though the wiretap was arguably related
to a potential prosecution, we found that the Attorney General "was
not acting in a prosecutorial capacity," and thus was not entitled
to the immunity recognized in
Imbler. Id. 472
U.S. at
472 U. S.
521.
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
424 U. S. 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. [
Footnote 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.
[
Footnote 1]
Following her arrest, petitioner was placed in the psychiatric
ward of a state hospital for four months. During that time, she was
discharged from her employment, and the State obtained temporary
custody of her sons. The medical experts at the hospital eventually
concluded that petitioner did not have multiple personalities, and
she was released.
[
Footnote 2]
Since the decision in
Imbler v. Pachtman, 424 U.
S. 409 (1976), most Courts of Appeals have held that
prosecutors are not entitled to absolute immunity for
"investigative" or "administrative" acts. The courts, however, have
differed in where they draw the line between protected and
unprotected activities. For example, the courts are split on the
issue of whether absolute immunity extends to the act of giving
legal advice to the police.
Compare Wollenbarger v.
Williams, 826 F.2d 930, 937 (CA10 1987),
with Burns v.
Reed, 894 F.2d 949 (CA7 1990) (case below);
Marx v.
Gumbinner, 855 F.2d 783, 790 (CA11 1988);
Myers v.
Morris, 810 F.2d 1437, 1449-1451 (CA8),
cert. denied,
484 U.S. 828 (1987).
[
Footnote 3]
Section 1983, which originated as § 1 of the Civil Rights Act of
1871, provides in full:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia."
Rev.Stat. § 1979, as amended, 42 U.S.C. § 1983.
[
Footnote 4]
The Court previously had affirmed a decision holding that
federal prosecutors were absolutely immune from suits for malicious
prosecution.
See Yaselli v. Goff, 275 U.S. 503 (1927),
summarily aff'g 12 F.2d 396 (CA2 1926).
[
Footnote 5]
We are not persuaded by JUSTICE SCALIA's attempt to read more
into petitioner's claims.
See post at
500 U. S.
501-504. Although one snippet of respondent's testimony
at trial related to his decision to go to court to seek the
warrant,
see Tr. 145, we are not aware of anything in the
record showing either that respondent expressly or impliedly
consented to an amendment of petitioner's claims, or that
petitioner sought to amend her complaint based on the evidence
presented at trial.
See Fed.Rule Civ.Proc. 15(b). As a
result, JUSTICE SCALIA's argument that there was no common law
immunity for malicious procurement of a search warrant,
post at
500 U. S. 504,
is irrelevant.
Cf. Briscoe v. LaHue, 460 U.
S. 325,
460 U. S.
330-331, n. 9 (1983) ("The availability of a common law
action for false accusations of crime . . . is inapposite, because
petitioners present only the question of § 1983 liability for false
testimony during a state court criminal trial").
[
Footnote 6]
There is widespread agreement among the Courts of Appeals that
prosecutors are absolutely immune from liability under § 1983 for
their conduct before grand juries.
See, e.g., Buckley v.
Fitzsimmons, 919 F.2d 1230, 1243 (CA7 1990);
Grant v.
Hollenbach, 870 F.2d 1135, 1139 (CA6 1989);
Baez v.
Hennessy, 853 F.2d 73, 74-75 (CA2 1988);
Morrison v. Baton
Rouge, 761 F.2d 242 (CA5 1985);
Gray v. Bell, 229
U.S.App.D.C. 176, 188, and n. 37, 712 F.2d 490, 502, and n. 37
(1983),
cert. denied, 465 U.S. 1100 (1984).
[
Footnote 7]
The judge before whom the probable cause hearing was held
testified in the present case and described the procedure in her
court for the issuance of search warrants. Her description is
revealing as to the role of the prosecutor in connection with that
judicial function:
"A. The general procedure is that the judge is presented with
what we call an affidavit of probable cause. And in that affidavit
are certain statements which are meant to apprise the Court of
alleged facts in existence which would convince the Court that a
search warrant should be issued."
"The other procedure is that a prosecutor or deputy prosecutor
can ask the court for a closed-door hearing. And the courtroom is
then locked in our county. Witnesses are presented for the purpose
of convincing the court that there exists what we call probable
cause for the issuance of search warrants. There can be one or many
witnesses."
"Q. Thank you, Judge. In each of those instances, is the
information presented to the Court either in affidavit form or in
the form of personal testimony, sworn testimony?"
"A. It is."
"Q. 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?"
"MR. SUTHERLIN: Yes."
"A. It would be the prosecutor of the county or one of the
deputies."
"Q. Is it possible for a police officer to go directly to your
court or any court and obtain a search warrant?"
"A. No."
Tr. 5
In this case, of course, respondent appeared in court and
presented testimony, and it is his conduct at that appearance that
is the focus of the first issue in this case.
[
Footnote 8]
In
Harlow v. Fitzgerald, 457 U.
S. 800 (1982), we "completely reformulated qualified
immunity,"
Anderson, 483 U.S. at
483 U. S. 645,
replacing the common law subjective standard with an objective
standard that allows liability only where the official violates
"clearly established statutory or constitutional rights of which a
reasonable person would have known."
Harlow, supra, 457
U.S. at
457 U. S. 818.
This change was
"specifically designed to 'avoid excessive disruption of
government and permit the resolution of many insubstantial claims
on summary judgment,' and we believe it sufficiently serves that
goal."
Malley, 475 U.S. at
475 U. S. 341,
see also Mitchell v. Forsyth, 472 U.
S. 511,
472 U. S. 524
(1985). Accordingly, it satisfies one of the principal concerns
underlying our recognition of absolute immunity.
See, e.g.,
Imbler, 424 U.S. at
424 U. S. 419,
n. 13.
[
Footnote 9]
Of course, in holding that respondent is not entitled to
absolute immunity for rendering the legal advice in this case, we
express no views about the underlying merits of petitioner's claims
against respondent.
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
Page 500 U. S. 497
false statements in a judicial hearing, and that he has only
qualified immunity for giving legal advice to police officers. I
write separately because I think petitioner also makes a claim,
which we ought to consider, that a constitutional violation
occurred in the prosecutor's initiation of the search warrant
proceeding. My understanding of the common law practice, which
governs whether absolute immunity exists under § 1983, is that this
prosecutorial action would have enjoyed only qualified immunity. As
to that portion of the case, a directed verdict on immunity grounds
should not have been granted.
I
On its face, § 1983 makes liable "every person" who deprives
another of civil rights under color of state law. We have held,
however, that the section preserves at least some of the immunities
traditionally extended to public officers at common law. Thus, in
Tenney v. Brandhove, 341 U. S. 367
(1951), we found legislators absolutely immune from § 1983 suits.
Observing the existence of a common law tradition of legislative
immunity dating from 1689,
id. at
341 U. S.
372-376, we refused to "believe that Congress . . .
would impinge on a tradition so well grounded in history and reason
by overt inclusion" in "the general language of its 1871 statute."
Id. at
341 U. S. 376.
In
Pierson v. Ray, 386 U. S. 547,
386 U. S.
554-555 (1967), we found that absolute immunity for
judges was "equally well established" at common law, so that
Congress "would have specifically so provided had it wished to
abolish the doctrine" for suits under § 1983. In
Briscoe v.
LaHue, 460 U. S. 325,
460 U. S.
330-334 (1983), we reached the same conclusion regarding
immunity for witnesses at trial.
While we have not thought a common law tradition (as of 1871) to
be a
sufficient condition for absolute immunity under §
1983,
see Scheuer v. Rhodes, 416 U.
S. 232 (1974), we have thought it to be a
necessary one:
"Our initial inquiry is whether an official claiming immunity
under § 1983 can point to a common law counterpart
Page 500 U. S. 498
to 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,
475 U. S.
339-340 (1986), quoting
Tower v. Glover,
467 U. S. 914,
467 U. S. 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 § 1983.
See Malley, supra; Tower, supra; Pulliam v.
Allen, 466 U. S. 522
(1984). That is so because the presumed legislative intent not to
eliminate traditional immunities is our only justification for
limiting the categorical language of the statute. "We do not have a
license to establish immunities from § 1983 actions in the
interests of what we judge to be sound public policy."
Tower, 467 U.S. at
467 U. S.
922-923. "[O]ur role is to interpret the intent of
Congress in enacting § 1983, not to make a freewheeling policy
choice."
Malley, 475 U.S. at
475 U. S. 342.
[
Footnote 2/1]
Page 500 U. S. 499
In the present case, therefore, "[o]ur initial inquiry,"
Malley, 475 U.S. at
475 U. S. 339,
"the first and crucial question,"
Pulliam, 466 U.S. at
466 U. S. 529,
is "whether the common law recognized [the absolute immunities
asserted],"
ibid.
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, 424 U.S. at
424 U. S. 421,
the first case extending
any form of prosecutorial
immunity was decided some 25 years after the enactment of § 1983.
However, pre-1871 common law courts did recognize several
categories of immunities which, it is argued, would have extended
to the prosecutorial functions contested here had the case arisen.
The relevant categories are:
(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
Page 500 U. S. 500
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. 36366, 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 § 1983,
cf. Pierson, 386 U.S. at
386 U. S.
557).
See Wight v. Rindskopf, 43 Wis. 344, 354
(1877) (prosecutor acts as a quasi-judicial officer is deciding
whether to dismiss a pending
Page 500 U. S. 501
case). But that characterization does not support absolute
immunity.
(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 § 1983 immunity. In
Briscoe, 460 U.S. at 330-334,
we found defamation immunity sufficient to immunize witnesses for
all in court statements. The traditional defamation immunity also
extended to lawyers in presenting evidence,
see Townshend,
supra, at 357-358, and accordingly the immunity recognized
in
Briscoe applies here.
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
Page 500 U. S. 502
500 U. S. 487.
That is true if one looks solely to the complaint. But since the
present case comes to us after a directed verdict, the evidence at
trial must also be considered.
"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. "
Page 500 U. S. 503
"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
Page 500 U. S. 504
fully inform the court [of relevant circumstances]." Brief for
Petitioner i (emphasis added). It is plausible to read this as
challenging
both the decision to apply for a search
warrant
and the in court statements at the hearing, and
petitioner's arguments support that reading. The petition for
certiorari, for example, questions immunity for the function of
"securing a search warrant," and both the petition and the opening
brief cite cases involving approval of applications, rather than in
court activity.
See Pet. for Cert. 6-7; Brief for
Petitioner 10-11 (both citing
Liffiton v. Keuker, 850 F.2d
73 (CA2 1988) and
McSurely v. McClellan, 225 U.S.App.D.C.
67, 697 F.2d 309 (1982)). The United States, as
Amicus
Curiae supporting respondent, evidently understood that the
approval function (or, as the United States calls it, the
"screening" function) was at issue, since it addressed that
question in some detail.
See Brief for United States as
Amicus Curiae 23-25.
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, 67 Ind. 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 §
1983 was enacted, there was no absolute immunity for procuring a
search warrant.
Page 500 U. S. 505
An additional few words are needed, however, regarding our
decision in
Imbler. Imbler granted a prosecutor
absolute immunity against a § 1983 claim that he had sought a grand
jury indictment maliciously. It relied for that holding upon a
common law tradition of prosecutorial immunity that developed much
later than 1871, and was not even a logical extrapolation from
then-established immunities. While I would not, for the reasons
stated above, employ that methodology here, [
Footnote 2/2] the holding of
Imbler remains on
the books, and for reasons of
stare decisis I would not
abandon it. It could be argued, therefore, that a prosecutor's role
in seeking a search warrant is akin to a prosecutor's role in
seeking an indictment, and thus that
Imbler's holding
alone governs the present suit. But insofar as the
relevant factors are concerned, this case is further from
Imbler than was
Malley, which denied absolute
immunity to a policeman for procuring an arrest warrant.
Imbler recognized absolute immunity out of a desire to
protect actions "intimately associated with the judicial phase of
the criminal process." 424 U.S. at
424 U. S. 430.
Malley rejected a further extension because the act of procuring an
arrest warrant "is further removed from the judicial phase of
criminal proceedings than the act of a prosecutor in seeking an
indictment." 475 U.S. at
475 U. S.
342-343. The
Page 500 U. S. 506
act of procuring a mere
search warrant is further
removed still. Nor would it be proper to follow
Imbler,
rather than
Malley, because the defendant is a prosecutor,
as in
Imbler, rather than a policeman, as in
Malley. We have made clear that "it [is] the nature of the
function performed, not the identity of the actor who perform[s]
it, that inform[s] our immunity analysis."
Forrester v.
White, 484 U. S. 219,
484 U. S. 229
(1988) (denying absolute immunity to a judge sued for a nonjudicial
act);
see also Ex parte Virginia, 100 U.
S. 339,
300 U. S. 348
(1880) ("Whether the act done by [a judge] was judicial or not is
to be determined by its character, and not by the character of the
agent.").
* * * *
For the foregoing reasons, I concur in the judgment of the Court
in part and dissent in part.
[
Footnote 2/1]
Our treatment of qualified immunity under § 1983 has been
different. In
Harlow v. Fitzgerald, 457 U.
S. 800 (1982), and
Anderson v. Creighton,
483 U. S. 635
(1987), we extended qualified immunity beyond its scope at common
law. Those cases are technically distinguishable, in that they
involved not the statutory cause of action against state officials
created by Congress in § 1983, but the cause of action against
federal officials inferred from the Constitution by this Court in
Bivens v. Six Unknown Federal Narcotics Agents,
403 U. S. 388
(1971). But the opinions made nothing of that distinction, citing §
1983 cases in support of their holdings. However, it would be a
mistake to expand
Harlow and Anderson to
absolute
immunity under § 1983, both because that would be contrary to our
clear precedent described above and because, with respect to
absolute immunity, the consequences are more severe. The common law
extended qualified immunity to public officials quite liberally,
and courts will not often have occasion to go further. Absolute
immunity, however, was exceedingly rare, so that the scope for
judicial rewriting of § 1983 in that respect is broad indeed.
[
Footnote 2/2]
Even if it were applied, respondent would not prevail, since
there is not even any post-1871 tradition to support prosecutorial
immunity in the obtaining of search warrants. Cases considering
whether such an immunity exists are few and divided in their
conclusions.
Compare Anderson v. Manley, 181 Wash. 327,
331, 43 P.2d 39, 40 (1935) (absolute immunity)
with Cashen v.
Spann, 66 N.J. 541, 551,
334 A.2d
8, 13 (1975) (qualified immunity);
see also Torres v.
Glasgow, 80 N.M. 412, 417,
456 P.2d
886, 891 (1969) (extent of immunity unclear). Suits against
policemen for obtaining search warrants generally deny absolute
immunity.
See, e.g., State ex rel. Hedgepeth v. Swanson,
223 N.C. 442, 444-445, 27 S.E.2d 122, 123 (1943);
Peterson v.
Cleaver, 124 Or. 547, 559, 265 P. 428, 432 (1928).
See
also Motley v. Dugan, 191 S.W.2d 979, 982 (Mo.App.1945)
(qualified immunity for policeman seeking arrest warrant);
Kidd
v. Reynolds, 20 Tex.Civ. App. 355, 358, 50 S.W. 600, 601
(1899) (same).