Certiorari Granted in Rehberg v. Paulk: An Intriguing Witness Immunity Case
In recent Terms the Supreme Court has shown considerable interest in individual immunity doctrine involving qualified immunity–about which I blogged on January 25, 2011 and may 31, 2011–and absolute immunity–about which I blogged on August 21, 2009. See generally on individual immunities, my treatise CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chapters 7 & 8 (4th ed. 2010)(CIVLIBLIT on Westlaw).
The Court’s interest in immunity doctrine will continue into the 2011 Term because, on March 21, 2011, the Court granted certiorari in Rehberg v. Paulk, No. 10-788, to review 611 F. 3d 828 (11th Cir. 2010), which conferred absolute witness immunity on a district attorney’s chief investigator who had testified as a complaining witness before a grand jury.
(In connection with understanding Rehberg, note that the Supreme Court has consistently used a functional approach to individual immunities, meaning that immunity does not depend on job title but rather on the nature of the challenged conduct. Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).
Rehberg v. Paulk and Witness Immunity
Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against, among others, 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.
In this latter regard, though, the Eleventh Circuit was careful to note that there was no allegation here that either of these defendants fabricated or planted any evidence to create probable cause. If there had been, the defendants would not receive absolute immunity, according to the court, because such conduct—investigating and gathering evidence—fell outside the prosecutor’s role as advocate.
The Question Presented
The Court granted the Plaintiff’s Petition for Writ of Certiorari to consider the following:
In Briscoe v. LaHue, [460 U.S. 325 (1983),] this Court held that law enforcement officials enjoy absolute immunity from civil liability under 42 U.S.C. § 1983 for perjured testimony that they provide at trial. But in Malley v. Briggs, [475 U.S. 335 (1986)], this Court held that law enforcement officials are not entitled to absolute immunity when they act as “complaining witnesses” to initiate a criminal prosecution by submitting a legally invalid arrest warrant. The federal courts of appeals have since divided about how Briscoe and Malley apply when government officials act as “complaining witnesses” by testifying before a grand jury or at another judicial proceeding. The question presented in this case is:
Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
Reason for Granting Certiorari
The Court probably granted certiorari because of a circuit split on this issue, with the Third, Fourth and Eleventh Circuits relying on Briscoe to confer absolute immunity, while the District of Columbia, Second, Fifth, Sixth, Seventh, Ninth and Tenth Circuits relied on Malley to deny absolute immunity protection.
Interestingly, the defendant’s Brief in Opposition, at p. 10, insisted that there was no split in the circuits “regarding an individual appearing before the grand jury who merely reads a report or provides testimony supplied to him by the District Attorney. Indeed, no case cited by the Petitioner or discovered by the Respondent directly addresses this issue.”
1. The Court will have to decide how to apply its functional approach here. On the one hand, the chief investigator in Rehberg functioned as a complaining witness, as acknowledged by the Eleventh Circuit itself. On the other, the chief investigator also functioned as a witness in a grand jury proceeding, and such a proceeding is “intimately associated with the judicial phase of the criminal process,” to borrow the words of Van De Kamp v. Goldstein, 129 S. Ct. at 860.
2. There are important policy considerations in play. For example, will allowing § 1983 damages actions for such complaining witness testimony in a grand jury proceeding adversely affect the confidential nature of grand jury testimony because of the depositions that would be taken?
3. As always with individual immunities, there is also the matter of the common law background. This is where the Court has traditionally begun its immunity analysis. What, if anything, does the common law extant in 1871 have to say about this?
4. Finally, if the Court affirms the Eleventh Circuit, it will adversely affect the number of so-called § 1983 malicious prosecution claims by eliminating a category of potential defendants beyond prosecutors (who are already protected by absolute immunity for their decisions to call witnesses and to prosecute). This could be a factor that motivates the Court to affirm. See my post of September 11, 2009, on § 1983 malicious prosecution.