Subject:  BURNS v. REED, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


BURNS v. REED


certiorari to the united states court of appeals for the seventh circuit

No. 89-1715.  Argued November 28, 1990 -- Decided May 30, 1991

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. MDRV 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 MDRV 1983 for participating in a probable cause hearing, but
not for giving legal advice to the police.  Pp. 3-16.

    (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 MDRV 1983 for their conduct in "initiating a prosecution
and in presenting the State's case," id., at 431, insofar as that conduct
is "intimately associated with the judicial phase of the criminal process,"
id., at 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, 224.  Pp. 3-6.

    (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 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 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 422-423, which, in
any event, serves as a check on prosecutorial actions, see id., at 429.
Pp. 7-12.

    (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 MDRV 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,
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. 12-16.

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.

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Subject: 89-1715 -- CONCUR/DISSENT, BURNS v. REED

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1715



CATHY BURNS, PETITIONER v. RICK REED


on writ of certiorari to the united states court of appeals for the seventh
circuit

[May 30, 1991]



    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 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 MDRV 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, MDRV 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 MDRV 1983 suits.
Observing the existence of a common-law tradition of legislative immunity
dating from 1689, id., at 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
376.  In Pierson v. Ray, 386 U. S. 547, 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 MDRV 1983.  In Briscoe v. LaHue, 460
U. S. 325, 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 MDRV 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 MDRV
1983 can point to a common-law counterpart 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 MDRV 1983's history or purposes nonetheless counsel against
recognizing the same immunity in MDRV 1983 actions.' "  Malley v. Briggs,
475 U. S. 335, 339-340 (1986), quoting Tower v. Glover, 467 U. S. 914, 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 MDRV 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
MDRV 1983 actions in the interests of what we judge to be sound public
policy."  Tower, 467 U. S., at 922-923.  "[O]ur role is to interpret the
intent of Congress in enacting MDRV 1983, not to make a freewheeling policy
choice."  Malley, 475 U. S., at 342. {1}
    In the present case, therefore, "[o]ur initial inquiry," Malley, 475 U.
S., at 339, "the first and crucial question," Pulliam, 466 U. S., at 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 421, the first case extending any form of prosecutorial immunity
was decided some 25 years after the enactment of MDRV 1983.  However,
pre1871 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 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 MDRV 786, pp. 365-366, 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 MDRV 1983, cf. Pierson, 386 U. S., at 557).  See Wight v.
Rindskopf, 43 Wis. 344, 354 (1877) (prosecutor acts as a quasi-judicial
officer is deciding whether to dismiss a pending 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, 15 295-300, 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 MDRV 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 7.  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.

"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
MDRV 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 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 MDRV 1983 was enacted, there
was no absolute immunity for procuring a search warrant.

    An additional few words are needed, however, regarding our decision in
Imbler.  Imbler granted a prosecutor absolute immunity against a MDRV 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, {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 govern's 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 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 342-343.  The 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, 229 (1988) (denying absolute immunity to a judge
sued for a nonjudicial act); see also Ex parte Virginia, 100 U. S. 339, 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.
 
 
 
 
 
 

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1
    Our treatment of qualified immunity under MDRV 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 MDRV 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 MDRV 1983 cases in support of their
holdings.  However, it would be a mistake to expand Harlow and Anderson to
absolute immunity under MDRV 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 MDRV 1983 in
that respect is broad indeed.

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. 539, 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 Ore. 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).
