Oral argument: Nov. 1, 2011
Appealed from: United States Court of Appeals for the Eleventh Circuit (June 9, 2011)
Relying on false testimony, three grand juries indicted Petitioner Charles Rehberg for varying charges. After the indictments were dismissed, Rehberg brought a private suit under 42 U.S.C. § 1983 against several parties, including Respondent James Paulk, who had testified before all three grand juries. The United States Court of Appeals for the Eleventh Circuit ruled that Paulk, an investigator in the district attorney’s office, was entitled to absolute immunity for his testimony. The Supreme Court granted certiorari in this case to determine whether a government official who acts as a “complaining witness” is entitled to absolute immunity under Section 1983. Rehberg argues that complaining witnesses were never given absolute immunity under common law, and that a lesser grant of qualified immunity is more appropriate under the circumstances. Paulk, on the other hand, contends that a decision to withhold absolute immunity will discourage public officials from giving complete and objective testimony before grand juries.
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.
Whether a government official who acts as a “complaining witness” in grand jury proceedings is entitled to absolute immunity from a Section 1983 claim after presenting false testimony.
Petitioner Charles Rehberg sent anonymous faxes parodying and criticizing the Phoebe Putney Memorial Hospital in Albany, Georgia, seeking to raise public awareness about the hospital’s unethical billing and accounting practices. See Rehberg v. Paulk, 611 F.3d 828, 835 (11th Cir. 2010). In response to the faxes, Respondent James Paulk, the Chief Investigator for the Dougherty County District Attorney’s Office, launched an investigation against Rehberg, allegedly as a “favor” to the hospital. See id. Rehberg claims that Paulk initiated the investigation against him without probable cause. See id.
Rehberg was indicted three times as a result of Paulk’s investigations. See Rehberg, 611 F.3d at 836–837. In 2005, he was first indicted for burglary, unlawfully entering a doctor’s home, and making harassing phone calls. See id. at 835. Paulk was the only witness who testified before the grand jury for this indictment. See id. Later, Paulk admitted that he had never gathered any evidence showing that Rehberg was guilty of the charges. See id. Furthermore, no evidence indicated that Rehberg had ever been to the doctor’s home; the doctor himself never reported a burglary or an assault. See id. The prosecutor subsequently dismissed the indictment. See id.
In 2006, Paulk again initiated charges against Rehberg, accusing him of similar offenses of assault and harassment against the same doctor. See Rehberg, 611 F.3d at 836. As with the first indictment, Paulk served as a witness before the grand jury. See id. Rehberg, however, argued that he had not been anywhere near the doctor at the date and time of the alleged offenses. See id. Subsequently, during the pretrial hearing, the District Attorney’s Office announced that it would dismiss the indictment against Rehberg. See id. When the Office failed to follow through on this promise, the state trial court stepped in and dismissed the charges, due to lack of evidence. See id.
One month later, Paulk appeared before a grand jury for the third time, obtaining an indictment against Rehberg on similar grounds as the previous indictments. See Rehberg, 611 F.3d at 836. Pursuant to an arrest warrant, Rehberg was detained for a brief period of time. See id. The state court found that the third indictment did not sufficiently charge Rehberg with a criminal offense, and dismissed all of the charges. See id. The three indictments, however, were widely reported in the press, and the District Attorney’s Office used the publicity to characterize Rehberg’s faxes as speech acts that had gone too far. See id. at 837.
After the third and final indictment against him was dismissed, Rehberg filed a federal civil rights claim under 42 U.S.C. § 1983 ("Section 1983"), alleging that Paulk's activities constituted retaliatory investigation and malicious prosecution. See Rehberg, 611 F.3d at 839. Paulk responded with a motion to dismiss, claiming that he was entitled to absolute immunity for his statements before the grand jury because he is a law enforcement officer. See Brief for Respondent, James P. Paulk at 8. The United States District Court for the Middle District of Georgia denied Paulk's claim, and Paulk appealed to the United States Court of Appeals for the Eleventh Circuit. See id. The Eleventh Circuit overturned the district court’s decision, concluding that Paulk was entitled to absolute immunity. See id. at 8–9.
The Interplay of Immunity and the Judicial Process
Petitioner Rehberg argues that there is a compelling public interest in deterring malicious prosecution. See Brief for Petitioner, Charles A. Rehberg at 25. Rehberg stresses the importance of effectuating federal civil rights claims under Section 1983, which, he argues, was designed to protect people (like himself) who have been indicted when they are completely innocent. See id. at 24–25. Rehberg contends that the risk of malicious and false prosecutions is especially high in the early indictment stages, when the prosecution presents its initial evidence to the grand jury. See Brief for Petitioner at 26. Rehberg notes that defendants in the indictment stage have no right to testify, or to cross-examine witnesses, thus potentially magnifying the impact of false testimony. See id. Furthermore, Rehberg argues that there is no concrete evidence linking a rule of qualified—as opposed to absolute—immunity to increased litigation against government officials. See id. He argues that seven judicial circuits have applied the qualified-immunity standard to complaining witnesses, and have seen no resulting adverse impact. See id. at 26–27.
While acknowledging the importance of deterring false testimony, Respondent Paulk argues that a different public policy goal - ensuring the ability of public officials to testify truthfully, without fear of private lawsuits - must take precedence. See Brief for Respondent, James P. Paulk at 43. According to Paulk, the threat of a lawsuit results in self-censorship among testifying officials and hampers officials’ ability to perform their duties effectively, distracting them with the costs and concerns of defending against possible suits. See id. at 34–35. In its amicus brief, the United States adds that grand jury witnesses who fear future litigation may be more inclined to slant their testimony or speak ambiguously, making it difficult for the jury to access accurate and objective evidence. See Brief of Amicus Curiae the United States Supporting Vacatur and Remand at 11.
The International Municipal Lawyers Association (“IMLA”) notes that it is very common for public employers to indemnify their employees for a range of liabilities. See Brief of Amicus Curiae the International Municipal Lawyers Associations et al. Supporting Respondent at 29. The practice of indemnification, however, may make qualified immunity an ineffective means of deterring false testimony, as public employees may simply shift the cost of litigation onto taxpayers and third parties dependent on government services. See id. IMLA argues that indemnification may lead public employers to implement liability-avoiding policies for their employees. See id.
Immunity and the Complaining Witness
Petitioner Rehberg argues that “complaining witnesses” appearing before a grand jury should only be given qualified immunity, not absolute immunity. See Brief for Petitioner at 10–12. Rehberg points out that the current standard of immunity for complaining witnesses differs from state to state, depending on whether a case was initiated by indictment, arrest warrant, or information. See id. at 23–24. Rehberg contends that these distinctions are illogical, as they give similar witnesses different immunity protections based solely on how the prosecution chose to file its criminal charges against the defendant. See id. at 24. Furthermore, as a result of this distinction, some falsely accused defendants may be able to assert Section 1983 claims against their persecutors, while others will find themselves shut out of the courtroom. See id.
Paulk, however, posits that all witnesses should be granted absolute immunity when testifying before a grand jury, regardless of whether they are complaining witnesses. See Brief for Respondent at 36. There is no reason, in Paulk’s view, for creating a “qualified immunity standard” for complaining witnesses. See id. at 38. Paulk asserts that the same policy concerns motivating the grant of absolute immunity to trial witnesses apply with equal force to complaining witnesses: in both cases, absolute immunity is thought to encourage accurate and objective testimony, to diminish the risk of criminal defendants transforming mere resentments into lawsuits, and to promote the overall integrity of the judicial process. See id. at 36–37. Furthermore, the United States contends that Rehberg’s complaining-witness exception would force courts to undertake case-by-case determinations as to who is a “complaining witness.” See Brief of Amicus Curiae the United States at 22. The United States asserts that adopting a bright-line rule of absolute immunity for all grand jury witnesses would remove this difficult determination from the court, and lead to smoother proceedings. See id. at 26–28.
At issue is §1 of the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983. This statute provides a private tort remedy against individuals who deprive others of their civil rights under the guise of law. See 42 U.S.C. § 1983. The United States Court of Appeals for the Eleventh Circuit held that Respondent Paulk, an investigator for the district attorney’s office, had absolute immunity against the Section 1983 claim brought by Petitioner Rehberg. See Rehberg v. Paulk, 611 F.3d 828, 839–40 (11th Cir. 2010). Rehberg’s claim stemmed from allegedly false testimony that Paulk delivered in grand jury proceedings against Rehberg. See id. The Supreme Court must now determine whether to uphold the Eleventh Circuit’s grant of absolute immunity, or whether to adopt Rehberg's proposal that Paulk is a “complaining witness” protected at the lower level of qualified immunity. See Brief for Petitioner, Charles A. Rehberg at 10–11. Absolute immunity protects government officials against any civil suit based on their performance of official duties; qualified immunity, on the other hand, protects officials against civil suits only when the officials’ actions were “objectively reasonable.” See Malley v. Briggs, 475 U.S. 335, 341 (1986).
Does Malley or Briscoe Control?
Each party contends that a different Supreme Court precedent governs the question of Paulk’s immunity. See Brief for Petitioner at 17; Brief for Respondent, James P. Paulk at 18–19. In Briscoe v. LaHue, the Court held that witnesses who testified at trial have absolute immunity against Section 1983 claims. See 460 U.S. 325, 326 (1983). Subsequently, in Malley v. Briggs, the Court carved out an exception for “complaining witnesses,” who do not receive absolute immunity for submitting an affidavit lacking probable cause. See 475 U.S. at 340–41. The Court held in Malley that, because the historical common law existing at the time of Section 1983's enactment did not provide complaining witnesses with absolute immunity, this absolute immunity should not be read into Section 1983. See id. Petitioner Rehberg asserts that Malley is the case on point, and that Briscoe is distinguishable because it did not involve complaining witnesses. See Brief for Petitioner at 13–14, 16–17. Respondent Paulk, on the other hand, argues that Briscoe controls and that Malley is inapposite, as the latter case concerned early proceedings outside the official judicial process. See Brief for Respondent at 19–20.
Is Paulk Entitled to Absolute Immunity Under the Common Law?
Petitioner Rehberg argues that a judicial officer is not entitled to immunity from a Section 1983 claim, unless the officer can prove that such an immunity is found in the historical common law, i.e. the body of judicial decisions that existed in and around 1871, when the Civil Rights Act was passed. See Brief for Petitioner at 12. Rehberg claims that, in the absence of such a common-law privilege, the Court must resort to a grant of qualified immunity, which is the usual standard for public officers in Section 1983 actions. See id. at 10, 12.
Rehberg first argues that, by virtue of being a “complaining witness” - the person who effectively set in motion the official judicial proceedings - Paulk is precluded from enjoying absolute immunity. See Brief for Petitioner at 11–12. According to Rehberg, a review of late nineteenth-century cases indicates that the common law did not grant absolute immunity to complaining witnesses in 1871. See id. at 12, 15–17. Rehberg also cites the more recent case of Malley, which supports the view that complaining witnesses do not have absolute immunity, but are potentially liable in court for initiating malicious complaints that lack probable cause. See id. at 13; Malley, 475 U.S. at 340–41. Despite a factual discrepancy - Malley involved an officer’s written affidavit, while Paulk testified orally before a grand jury - Rehberg argues that Malley is applicable to his case, as the common law did not distinguish between the writings and oral testimony of complaining witnesses. See id. at 14. Finally, Rehberg asserts that Briscoe is irrelevant to the current suit because the Court in that case was narrowly concerned with the immunity standard of trial witnesses, not that of pretrial witnesses such as grand jury witnesses. See id. at 16.
Respondent Paulk, on the other hand, disagrees with Rehberg’s assertion that pretrial grand jury testimony necessarily precludes the possibility of absolute immunity. See Brief for Respondent at 16–17. Rather, Paulk contends that grand jury proceedings are an integral part of judicial proceedings, and are therefore entitled to absolute immunity under the common law of 1871. See id. Paulk claims that Briscoe supports his argument because, although that case only related to trial testimony, the Court there noted that the common law granted absolute immunity to witnesses in judicial proceedings, and a pretrial proceeding in front of a grand jury is a type of judicial proceeding. See id. at 18–19. Paulk asserts that grand jury testimony is similar to trial testimony because the witness must answer questions under oath and is subject to cross-examination. See id. at 21–22. Finally, Paulk claims that his grand jury testimony is part of “judicial proceedings” because it initiates the prosecution’s criminal case. See id. at 21.
Additionally, Paulk asserts that, historically speaking, the term “complaining witnesses” referred to private citizens who brought accusations forming the basis for criminal suits. See Brief for Respondent at 24. Therefore, Paulk claims that he was not a “complaining witness” when he testified before the grand jury because he was acting in a public capacity as an investigator, not as a private citizen seeking redress. See id. at 23–24. In support of this view, amicus the United States also notes that the common law in 1871 did not distinguish between “normal” witnesses and complaining witnesses. See Brief of Amicus Curiae United States Supporting Vacatur and Remand at 24. With reference to Briscoe, the United States observes that the common law recognized absolute immunity in pretrial proceedings that performed a judicial function, a category into which grand jury testimony may fit. See id. at 14–15. The case of Malley, in the United States’ view, does not apply to Rehberg’s suit because the Court in that case used “complaining witnesses” to mean an individual who instigated the legal action, rather than a testifying witness. See id. at 18.
Is Paulk Entitled to Absolute Immunity Under a Functional Approach?
Both parties acknowledge that courts rely on a functional approach to determine whether judicial officers are entitled to immunity for their actions. See Brief for Petitioner at 17–18; Brief for Respondent at 16. The parties disagree, however, as to whether a functional analysis of Paulk’s actions leads to a finding of absolute immunity. See Brief for Petitioner at 18–20; Brief for Respondent at 16–17.
Petitioner Rehberg argues that, from a functional perspective, complaining witnesses cannot be compared to prosecutors, a group that normally receives absolute immunity under Section 1983. See Brief for Petitioner at 18. According to Rehberg, in the grand jury stage, Paulk was functioning strictly as an investigator and witness (testifying about the alleged results of his investigation), not as a lawyer. See id. at 19–20. Rehberg thus concludes that Paulk cannot enjoy the immunity protections of a prosecutor, who receives absolute immunity only when functioning in his capacity as a professional advocate. See id. Rehberg also points out that, functionally, complaining witnesses differ from trial witnesses in several important respects: most significantly, unlike trial witnesses who offer their testimony to judge and jury and who are subjected to cross-examination, grand jury witnesses provide the testimony that commences the government’s action against the accused, and are subject to neither cross-examination nor refuting evidence. See id. at 20–21. In light of this unique function, Rehberg contends that complaining witnesses must be given mere qualified immunity to protect against abusive and malicious prosecutions. See id. at 21–22.
Respondent Paulk, however, counters that his grand jury testimony was the inevitable first step in the district attorney’s action against Rehberg, and so is entitled to absolute immunity because of its close association with the criminal judicial process. See Brief for Respondent at 21. Moreover, Paulk contends that the lack of cross-examination in the grand jury phase does not make a pretrial witness materially different from a trial witness. See id. at 21–22. The witnesses in both types of judicial proceeding, Paulk notes, must take an oath to testify truthfully, and both may be prosecuted for delivering perjured testimony. See id. at 21. Paulk also observes that grand jury witnesses are subject to examination by grand jurors, just as other witnesses are subject to cross-examination at trial. See id. at 22. The function of the grand jury proceeding, The United States supports this argument by highlighting the constitutional significance of the grand jury. See Brief of Amicus Curiae United States at 12; U.S. Const. amend. V.
In this case, the Supreme Court will determine whether a government official who presented allegedly perjured testimony in grand jury proceedings is entitled to absolute immunity against a civil rights claim. Petitioner Rehberg contends that officials acting as “complaining witnesses” enjoy mere qualified immunity against liability because the common law did not historically protect these officials with absolute immunity. Respondent Paulk counters that officials giving testimony in grand jury proceedings must be granted absolute immunity because their testimony is critical to the criminal judicial process. A decision for Rehberg may lead to increased litigation against testifying government officials, while a decision for Paulk may insulate officials who abuse the criminal judicial system.
Edited by: Edan Shertzer
Nahmod Law: Certiorari Granted in Rehberg v. Paulk: An Intriguing Witness Immunity Case (June 16, 2011)
Wex: Qualified Immunity