Buckley v. Fitzsimmons (91-7849), 509 U.S. 259 (1993).
[ Scalia ]
[ Stevens ]
[ Kennedy ]
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No. 91-7849


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

[June 24, 1993]

Justice Kennedy , with whom The Chief Justice,

As the Court is correct to observe, the rules determining whether particular actions of government officials are entitled to immunity have their origin in historical practice and have resulted in a functional approach. Ante, at 9. See also Burns v. Reed, 500 U. S. ___, ___ (1991) (slip op., at 6); Forrester v. White, 484 U.S. 219, 224 (1988); Malley v. Briggs, 475 U.S. 335, 342-343 (1986); Cleavinger v. Saxner, 474 U.S. 193, 201 (1985); Briscoe v. LaHue, 460 U.S. 325, 342 (1983); Harlow v. Fitzgerald, 457 U.S. 800, 810 (1982); Butz v. Economou, 438 U.S. 478, 511-513 (1978); Imbler v. Pachtman, 424 U.S. 409,420-425 (1976). I share the Court's unwillingness to accept Buckley's argument "that Imbler's protection for a prosecutor's conduct `in initiating a prosecution and in presenting the State's case,' 424 U. S., at 431, extends only to the act of initiation itself and to conduct occurring in the courtroom." Ante, at 13. In Imbler, we acknowledged 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," and we explained that these actions of the prosecutor, undertaken in his functional role as an advocate, were entitled to absolute immunity, 424 U. S., at 431, n. 33. See ante, at 13.

There is a reason even more fundamental than that stated by the Court for rejecting Buckley's argument that Imbler applies only to the commencement of a prosecution and to in court conduct. This formulation of absolute prosecutorial immunity would convert what is now a substantial degree of protection for prosecutors into little more than a pleading rule. Almost all decisions to initiate prosecution are preceded by substantial and necessary out of court conduct by the prosecutor in evaluating the evidence and preparing for its introduction, just as almost every action taken in the courtroom requires some measure of out of court preparation. Were preparatory actions unprotected by absolute immunity, a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves. Imbler v. Pachtman, supra, at 431, n. 34. Cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503-507 (1975). Allowing the avoidance of absolute immunity through that pleading mechanism would undermine in large part the protections that we found necessary in Imbler and would discourage trial preparation by prosecutors. In this way, Buckley's proffered standard would have the perverse effect of encouraging, rather than penalizing, carelessness, cf.Forrester v. White, supra, at 223, and it would discourage early participation by prosecutors in the criminal justice process.

Applying these principles to the case before us, I believe that the conduct relating to the expert witnesses falls on the absolute immunity side of the divide. As we recognized in Imbler and Burns, and do recognize again today, the functional approach does not dictate that all actions of a prosecutor are accorded absolute immunity. "When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is `neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.' " Ante, at 14, quoting Hampton v. Chicago, 484 F. 2d 602, 608 (CA7 1973), cert. denied, 415 U.S. 917 (1974). Nonetheless, while Buckley labels the prosecutors' actions relating to the bootprint experts as "investigative," I believe it is more accurate to describe the prosecutors' conduct as preparation for trial. A prosecutor must consult with a potential trial witness before he places the witness on the stand, and if the witness is a critical one, consultation may be necessary even before the decision whether to indict. It was obvious from the outset that the bootprint was critical to the prosecution's case, and the prosecutors' consultation with experts is best viewed as a step to ensure the bootprint's admission in evidence and to bolster its probative value in the eyes of the jury.

Just as Imbler requires that the decision to use a witness must be insulated from liability, 424 U. S., at 426, it requires as well that the steps leading to that decision must be free of the distortive effects of potential liability, at least to the extent that the prosecutor is engaged in trial preparation. Actions in "obtaining, reviewing, and evaluating" witness testimony, id., at 431, n. 33, are a classic function of the prosecutor as advocate. Pretrial and even preindictment consultation can be "intimately associated with the judicial phase of thecriminal process," id., at 430. Potential liability premised on the prosecutor's early consultation would have "an adverse effect upon the functioning of the criminal justice system," id., at 426. Concern about potential liability arising from pretrial consultation with a witness might "hampe[r]" a prosecutor's exercise of his judgment as to whether a certain witness should be used. Id., at 426, and n. 24. The prospect of liability may "induc[e] [a prosecutor] to act with an excess of caution or otherwise to skew [his] decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide [his] conduct." Forrester v. White, 484 U. S., at 223. Moreover, "[e]xposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability." Malley v. Briggs, 475 U. S., at 343. That distortion would frustrate the objective of accuracy in the determination of guilt or innocence. See Imbler v. Pachtman, supra, at 426.

Furthermore, the very matter the prosecutors were considering, the decision to use particular expert testimony, was "subjected to the `crucible of the judicial process.' " Burns v. Reed, 500 U. S., at ___ (slip op., at 16), quoting Imbler v. Pachtman, supra, at 440 (White, J., concurring in judgment). Indeed, it appears that the only constitutional violations these actions are alleged to have caused occurred within the judicial process. The question Buckley presented in his petition for certiorari itself makes this point: "Whether prosecutors are entitled to absolute prosecutorial immunity for supervision of and participation in a year long pre-arrest and pre-indictment investigation because the injury suffered by the criminal defendant occurred during the later criminal proceedings?" Pet. for Cert. i. Remedies other than prosecutorial liability, for example, a pretrial ruling of inadmissibility or a rejectionby the trier of fact, are more than adequate "to prevent abuses of authority by prosecutors." Burns v. Reed, supra, at ___ (slip op., at 15-16). See also Butz v. Economou, 438 U. S., at 512; Imbler v. Pachtman, supra, at 429.

Our holding in Burns v. Reed, supra, is not to the contrary. There we cautioned that prosecutors were not entitled to absolute immunity for "every litigation inducing conduct," id., at ___ (slip op., at 14), or for every action that "could be said to be in some way related to the ultimate decision whether to prosecute," id., at ___ (slip op., at 15). The premise of Burns was that, in providing advice to the police, the prosecutor acted to guide the police, not to prepare his own case. See id., at ___ (slip op., at 1-2) (noting that the police officers sought the prosecutor's advice first to find out whether hypnosis was "an unacceptable investigative technique" and later to determine whether there was a basis to "plac[e] [a suspect] under arrest"). In those circumstances, we found an insufficient link to the judicial process to warrant absolute immunity. But the situation here is quite different. For the reasons already explained, subjecting a prosecutor's pretrial or preindictment witness consultation and preparation to damages actions would frustrate and impede the judicial process, the result Imbler is designed to avoid.

The Court reaches a contrary conclusion on the issue of the bootprint evidence by superimposing a bright line standard onto the functional approach that has guided our past decisions. According to the Court, "[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Ante, at 15. To allow otherwise, the Court tells us, would create an anomalous situation whereby prosecutors are granted only qualified immunity when offering legal advice to the police regarding an unarrested suspect, see Burns, supra, at ___ (slip op., at 16), but are endowed withabsolute immunity when conducting their own legal work regarding an unarrested suspect. Ante, at 16.

I suggest that it is the Court's probable cause demarcation between when conduct can be considered absolutely immune advocacy and when it cannot that creates the true anomaly in this case. We were quite clear in Imbler that if absolute immunity for prosecutors meant anything, it meant that prosecutors were not subject to suit for malicious prosecution. 424 U. S., at 421-422, 424, 428. See also Burns, supra, at ___ (slip op., at 13) ("[T]he common law immunity from malicious prosecution . . . formed the basis for the decision in Imbler"). Yet the central component of a malicious prosecution claim is that the prosecutor in question acted maliciously and without probable cause. See Wyatt v. Cole, 504 U. S. ___, ___ (1992); id., at ___ (Kennedy, J., concurring); id., at ___ (Rehnquist, C. J., dissenting); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 119 (5th ed. 1984). If the Court means to withhold absolute immunity whenever it is alleged that the injurious actions of a prosecutor occurred before he had probable cause to believe a specified individual committed a crime, then no longer is a claim for malicious prosecution subject to ready dismissal on absolute immunity grounds, at least where the claimant is clever enough to include some actions taken by the prosecutor prior to the initiation of prosecution. I find it rather strange that the classic case for the invocation of absolute immunity falls on the unprotected side of the Court's new dividing line. I also find it hard to accept any line that can be so easily manipulated by criminal defendants turned civil plaintiffs, allowing them to avoid a dismissal on absolute immunity grounds by throwing in an allegation that a prosecutor acted without probable cause. See supra, at 2.

Perhaps the Court means to draw its line at the point where an appropriate neutral third party, in this case the Illinois special grand jury, makes a determination ofprobable cause. This line, too, would generate anomalous results. To begin, it could have the perverse effect of encouraging prosecutors to seek indictments as early as possible in an attempt to shelter themselves from liability, even in cases where they would otherwise prefer to wait on seeking an indictment to ensure that they do not accuse an innocent person. Given the stigma and emotional trauma attendant to an indictment and arrest, promoting premature indictments and arrests is not a laudable accomplishment.

Even assuming these premature actions would not be induced by the Court's rule, separating absolute immunity from qualified immunity based on a third party determination of probable cause makes little sense when a civil plaintiff claims that a prosecutor falsified evidence or coerced confessions. If the false evidence or coerced confession served as the basis for the third party's determination of probable cause, as was alleged here, it is difficult to fathom why securing such a fraudulent determination transmogrifies unprotected conduct into protected conduct. Finally, the Court does not question our conclusion in Burns that absolute immunity attached to a prosecutor's conduct before a grand jury because it " `perform[s] a judicial function.' " 500 U. S., at ___ (slip op., at 10), quoting W. Prosser, Law of Torts § 94, pp. 826-827 (1941)). See also Yaselli v. Goff, 12 F. 2d 396 (CA2 1926), aff'd, 275 U.S. 503 (1927). It is unclear to me, then, why preparing for grand jury proceedings, which obviously occur before an indictment is handed down, cannot be "intimately associated with the judicial phase of the criminal process" and subject to absolute immunity. Burns, supra, at ___ (slip op., at 11), quoting Imbler, supra, at 430.

As troubling as is the line drawn by the Court, I find the reasons for its line drawing to be of equal concern. The Court advances two reasons for distinguishing between pre-probable cause and post-probable causeactivity by prosecutors. First, the distinction is needed to ensure that prosecutors receive no greater protection than do police officers when engaged in identical conduct. Ante, at 16. Second, absent some clear distinction between investigation and advocacy, the Court fears, "every prosecutor might . . . shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial." Ante, at 17. This step, it is alleged, would enable any prosecutor to "retrospectively describ[e]" his investigative work "as `preparation' for a possible trial" and therefore request the benefits of absolute immunity. Ibid. I find neither of these justifications persuasive.

The Court's first concern, I take it, is meant to be a restatement of one of the unquestioned goals of our § 1983 immunity jurisprudence: ensuring parity in treatment among state actors engaged in identical functions. Forrester v. White, 484 U. S., at 229; Cleavinger v. Saxner, 474 U. S., at 201. But it was for the precise reason of advancing this goal that we adopted the functional approach to absolute immunity in the first place, and I do not see a need to augment that approach by developing bright line rules in cases where determining whether different actors are engaged in identical functions involves careful attention to subtle details. The Court, moreover, perceives a danger of disparate treatment because it assumes that before establishing probable cause, police and prosecutors perform the same functions. Ante, at 16. This assumption seem to me unwarranted. I do not understand the art of advocacy to have an inherent temporal limitation, so I cannot say that prosecutors are never functioning as advocates before the determination of probable cause. More to the point, the Court's assumption further presumes that when both prosecutors and police officers engage in the same conduct, they are of necessity engaged in the same function. With this I must disagree. Two actors can take part in similarconduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct. See Buchanan, Police Prosecutor Teams, The Prosecutor 32 (summer 1989).

Advancing to the second reason provided for the Court's line drawing, I think the Court overstates the danger of allowing pre-probable cause conduct to constitute advocacy entitled to absolute immunity. I agree with the Court that the institution of a prosecution "does not retroactively transform . . . work from the administrative into the prosecutorial," ante, at 16, but declining to institute a prosecution likewise should not "retroactively transform" work from the prosecutorial into the administrative. Cf. Imbler, 424 U. S., at 431, n. 33 ("We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution . . . . These include questions of whether to present a case to the grand jury, whether to file an information, [and] whether and when to prosecute"). In either case, the primary question, one which I have confidence the federal courts are able to answer with some accuracy, is whether a prosecutor was acting as an advocate, an investigator, or an administrator when he took the actions called into question in a subsequent § 1983 action. As long as federal courts center their attention on this question, a concern that prosecutors can disguise their investigative and administrative actions as early forms of advocacy seems to be unfounded.

In recognizing a distinction between advocacy and investigation, the functional approach requires the drawing of difficult and subtle distinctions, and I understand the necessity for a workable standard in this area. But the rule the Court adopts has created more problems than it has solved. For example, even after there is probable cause to arrest a suspect or after a suspect is indicted, a prosecutor might act to further police investigative work, say by finding new leads, in which case only qualified immunity should apply. The converse is also true: Even before investigators are satisfied that probable cause exists or before an indictment is secured, a prosecutor might begin preparations to present testimony before a grand jury or at trial, to which absolute immunity must apply. In this case, respondents functioned as advocates, preparing for prosecution before investigators are alleged to have amassed probable cause and before an indictment was deemed appropriate. In my judgment respondents are entitled to absolute immunity for their involvement with the expert witnesses in this case. With respect, I dissent from that part of the Court's decision reversing the Court of Appeals judgment of absolute immunity for respondents' conduct in relation to the bootprint evidence.