Rehberg v. Paulk: A New Supreme Court Absolute Immunity Decision
“Whether a government official who acts as a “complaining witness” [in a grand jury proceeding] by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.”
Recall that there was a conflict in the circuits on this question, a conflict that arose from two Supreme Court decisions that seemed to cut in opposite directions on the matter.
In one, Briscoe v. LaHue, 460 U.S. 325 (1983), the Court held that law enforcement officials (and witnesses in general) enjoyed absolute witness immunity from civil liability for perjured testimony that they provided at trial. In the other, Malley v. Briggs, 475 U.S. 335 (1986), the Court held that law enforcement officials were not entitled to absolute immunity when they acted as “complaining witnesses” to initiate a criminal prosecution by submitting a legally invalid arrest warrant.
So which case applied when a “complaining witness” who was a law enforcement officer allegedly testified falsely before a grand jury?
On April 2, 2012, the Supreme Court handed down a unanimous decision in Rehberg, holding that such a “complaining witness” is protected by absolute immunity under Briscoe.
Rehberg v. Paulk, 132 S. Ct. — (2012).
Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.
It also ruled that the chief investigator, together with the prosecutor who presented to the grand jury, was absolutely immune from damages liability for allegedly conspiring, pre-indictment, to make up and present the chief investigator’s false testimony to the grand jury.
On certiorari, the Supreme Court unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito.
The Court first described its general approach to § 1983 immunities: the common law background in 1871 (when § 1983 was enacted) was the starting point but the determinative inquiry was whether the common law background was consistent with § 1983 policies. The Court then pointed out that the functional approach to immunities–an approach focusing on function rather than status–had long been applied in § 1983 cases.
However, it emphasized that the Court’s § 1983 immunity decisions did not simply duplicate the scope of common law immunities. A good example was prosecutorial immunity: in 1871 prosecutors were private and were not protected by absolute immunity, but when prosecutors later became public officials, the Court had held in Imbler v. Pachtman, 424 U.S. 409 (197-), that they were protected by absolute immunity for their advocative conduct.
Addressing the merits, the Court had a relatively easy time concluding that absolute witness immunity governed. For one thing, the factors supporting witness immunity at trials also applied to grand jury proceedings: in both situations the concern was with depriving the tribunal of evidence because of fear of retaliatory litigation. For another, in 1871 “complaining witnesses” did not ordinarily testify before grand juries or at criminal trials; rather, they were parties who procured arrests and initiated criminal prosecutions, as the law enforcement officer did in Malley. Finally, as a matter of policy, absolute immunity made sense: otherwise, grand jury secrecy could be subverted.
1. Rehberg was not a surprising decision in result. What was interesting to § 1983 watchers was how the Court would reason to this conclusion. It did so by describing the common law immunity background of “complaining witnesses” to exclude testifying before grand juries. Of course, the policy consideration of protecting grand jury secrecy surely played a major role.
2. Note that the Court made clear that the absolute immunity of a witness testifying before a grand jury could not be end-run simply by alleging a prior conspiracy between a prosecutor and the witness to have the witness testify falsely before the grand jury. This reasoning surely applies to similar attempts to end-run witness testimony at a criminal trial as well.
3. Rehberg will likely reduce the number of so-called § 1983 malicious prosecution claims by eliminating a category of potential defendants–law enforcement officers who testify at grand jury proceedings. Recall that prosecutors are already protected by absolute immunity for their decisions to call witnesses and to prosecute. See my post of September 11, 2009, on § 1983 malicious prosecution.