OCTOBER TERM, 1992
Syllabus
BUCKLEY
v. FITZSIMMONS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 91-7849. Argued February 22, 1993-Decided June 24,1993
Petitioner Buckley sought damages, under 42 U. S. C. § 1983,
from respondent prosecutors for fabricating evidence during the
preliminary investigation of a highly publicized rape and murder in
Illinois and making false statements at a press conference
announcing the return of an indictment against him. He claimed that
when three separate lab studies failed to make a reliable
connection between a bootprint at the murder site and his boots,
respondents obtained a positive identification from one Robbins,
who allegedly was known for her willingness to fabricate unreliable
expert testimony. Thereafter, they convened a grand jury for the
sole purpose of investigating the murder, and 10 months later,
respondent Fitzsimmons, the State's Attorney, announced the
indictment at the news conference. Buckley was arrested and, unable
to meet the bond, held in jail. Robbins provided the principal
evidence against him at trial, but the jury was unable to reach a
verdict. When Robbins died before Buckley's retrial, all charges
were dropped and he was released after three years of
incarceration. In the § 1983 action, the District Court held that
respondents were entitled to absolute immunity for the fabricated
evidence claim but not for the press conference claim. However, the
Court of Appeals ruled that they had absolute immunity on both
claims, theorizing that prosecutors are entitled to absolute
immunity when out-of-court acts cause injury only to the extent a
case proceeds in court, but are entitled only to qualified immunity
if the constitutional wrong is complete before the case begins. On
remand from this Court, it found that nothing in
Burns v.
Reed, 500 U.
S. 478-in which the Court held that prosecutors had absolute
immunity for their actions in participating in a probable-cause
hearing but not in giving advice to the police-undermined its
initial holding.
Held: Respondents are not entitled to absolute immunity.
Pp. 267-278.
(a) Certain immunities were so well established when § 1983 was
enacted that this Court presumes that Congress would have
specifically so provided had it wished to abolish them. Most public
officials are entitled only to qualified immunity. However,
sometimes their actions fit within a common-law tradition of
absolute immunity. Whether they do is determined by the nature of
the function performed, not the identity of the actor who performed
it,
Forrester v.
White, 484 U. S. 219, 229,
260
Syllabus
and it is available for conduct of prosecutors that is
"intimately associated with the judicial phase of the criminal
process."
Imbler v.
Pachtman,
424 U. S. 409, 430. Pp.
267-271.
(b) Acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State, are entitled
to the protections of absolute immunity. However, in endeavoring to
determine whether the bootprint had been made by Buckley,
respondents were acting not as advocates but as investigators
searching for clues and corroboration that might give them probable
cause to recommend an arrest. Such activities were not immune from
liability at common law. If performed by police officers and
detectives, such actions would be entitled to only qualified
immunity; the same immunity applies to prosecutors performing those
actions. Convening a grand jury to consider the evidence their work
produced does not retroactively transform that work from the
administrative into the prosecutorial. Pp.271-276.
(c) Fitzsimmons' statements to the media also are not entitled
to absolute immunity. There was no common-law immunity for
prosecutor's out-of-court statements to the press, and, under
Imbler, such comments have no functional tie to the judicial
process just because they are made by a prosecutor. Nor do policy
considerations support extending absolute immunity to press
statements, since this Court has no license to establish immunities
from § 1983 actions in the interests of what it judges to be sound
public policy, and since the presumption is that qualified, rather
than absolute, immunity is sufficient to protect government
officials in the exercise of their duties. Pp. 276-278.
952 F.2d
965, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court with
respect to Parts I, II, III, and IV -B, and the opinion of the
Court with respect to Parts IV-A and V, in which BLACKMUN,
O'CONNOR, SCALIA, and THOMAS, JJ., joined. SCALIA, J., filed a
concurring opinion,
post, p. 279. KENNEDY, J., filed an
opinion concurring in part and dissenting in part, in which
REHNQUIST, C. J., and WHITE and SOUTER, JJ., joined,
post,
p. 282.
G.
Flint Taylor argued the cause for petitioner. With him
on the briefs was
John L. Stain thorp.
James G.
Sotos argued the cause and filed a brief
for respondents.
Jeffrey P. Minear argued the cause for the United States
as
amicus curiae urging affirmance. With him on the
brief
261
were Solicitor General Starr, Assistant Attorney General Gerson,
and Deputy Solicitor General Mahoney.
*
JUSTICE STEVENS delivered the opinion of the Court.
In an action brought under 42 U. S. C. § 1983, petitioner seeks
damages from respondent prosecutors for allegedly fabricating
evidence during the preliminary investigation of a crime and making
false statements at a press conference announcing the return of an
indictment. The questions presented are whether respondents are
absolutely immune from liability on either or both of these
claims.
As the case comes to us, we have no occasion to consider whether
some or all of respondents' conduct may be protected by qualified
immunity. Moreover, we make two important assumptions about the
case: first, that petitioner's allegations are entirely true; and,
second, that they allege constitutional violations for which § 1983
provides a remedy. Our statement of facts is therefore derived
entirely from petitioner's complaint and is limited to matters
relevant to respondents' claim to absolute immunity.
I
Petitioner commenced this action on March 4, 1988, following his
release from jail in Du Page County, Illinois. He had been
incarcerated there for three years on charges growing out of the
highly publicized murder of Jeanine Nicarico, an ll-year-old child,
on February 25, 1983. The complaint named 17 defendants, including
Du Page County, its sheriff and seven of his assistants, two expert
witnesses and the estate of a third, and the five respondents.
Respondent Fitzsimmons was the duly elected Du Page County
State's Attorney from the time of the Nicarico
* Michael D. Bradbury filed a brief for the
Appellate Committee of the California District Attorneys
Association as
amicus curiae.
262
murder through December 1984, when he was succeeded by
respondent Ryan, who had defeated him in a Republican primary
election on March 21, 1984. Respondent Knight was an assistant
state's attorney under Fitzsimmons and served as a special
prosecutor in the Nicarico case under Ryan. Respondents Kilander
(who came into office with Ryan) and King were assistant
prosecutors, also assigned to the case.
The theory of petitioner's case is that in order to obtain an
indictment in a case that had engendered "extensive publicity" and
"intense emotions in the community," the prosecutors fabricated
false evidence, and that in order to gain votes, Fitzsimmons made
false statements about petitioner in a press conference announcing
his arrest and indictment 12 days before the primary election.
Petitioner claims that respondents' misconduct created a "highly
prejudicial and inflamed atmosphere" that seriously impaired the
fairness of the judicial proceedings against an innocent man and
caused him to suffer a serious loss of freedom, mental anguish, and
humiliation.
The fabricated evidence related to a bootprint on the door of
the Nicarico home apparently left by the killer when he kicked in
the door. After three separate studies by experts from the Du Page
County Crime Lab, the Illinois Department of Law Enforcement, and
the Kansas Bureau of Identification, all of whom were unable to
make a reliable connection between the print and a pair of boots
that petitioner had voluntarily supplied, respondents obtained a
"positive identification" from one Louise Robbins, an
anthropologist in North Carolina who was allegedly well known for
her willingness to fabricate unreliable expert testimony. Her
opinion was obtained during the early stages of the investigation,
which was being conducted under the joint supervision and direction
of the sheriff and respondent Fitzsimmons, whose
263
police officers and assistant prosecutors were performing
essentially the same investigatory functions.1
Thereafter, having failed to obtain sufficient evidence to
support petitioner's (or anyone else's) arrest, respondents
convened a special grand jury for the sole purpose of investi-
1 The relevant period and prosecutorial functions are described
in petitioner's first amended complaint:
'(28) Defendant Knight, and various others [sic] Defendants,
including Doria, Fitzsimmons, and Burandt, apparently not satisfied
with Defendant German's conclusions, contacted anthropologist
Louise Robbins and Defendant Olsen of the Kansas Bureau of
Indentification [sic] Crime Lab in search of a positive boot
identification.
'(31) Confronted with three different expert reports which
failed to match Plaintiff's boot with the footprint on the door,
the Defendants, including Knight, Burandt, and German, procured
their 'positive identification' from Louise Robbins, whose theories
and reputation in the forensic community were generally discredited
and viewed with great skepticism, a fact these Defendants knew or
should have known.
'(32) Defendants Knight and King were involved with the
Sheriff's police in all the early stages of their investigation,
including the interrogation of witnesses and potential suspects.
Specifically, Sheriff's detectives, including defendants Wilkosz
and Kurzawa, at the direction and under the supervision, and
sometimes in the presence and with the assistance of Defendants
Knight, King, Soucek and Lepic, repeatedly interrogated alleged
suspects, including Plaintiff Buckley and Alex Hernandez, who were
not represented by counsel. Despite intense pressure and
intimidation, Plaintiff Buckley steadfastly maintained his
innocence and demonstrated no knowledge of the crime, while
Hernandez told such wild and palpably false stories that his mental
instability was obvious to the Defendants.
'(33) As a result of these interrogations, at least one
experienced Sheriff's detective who participated[,] concluded that
Buckley and Hernandez were not involved in the Nicarico crime. This
conclusion was buttressed by his general knowledge of the bootprint
'evidence.'
'(34) He repeatedly communicated his conclusion, and its basis,
to the Defendants named herein, including Defendants Doria, Knight,
King, Soucek, Lepic, and Wilkosz.
'(35) Unable to solve the case, Defendants Doria, Fitzsimmons,
Knight and King convened a special Du Page County 'investigative'
grand jury, devoted solely to investigating the Nicarico case."
App.8-10.
264
gating the Nicarico case. After an 8-month investigation, during
which the grand jury heard the testimony of over 100 witnesses,
including the bootprint experts, it was still unable to return an
indictment. On January 27, 1984, respondent Fitzsimmons admitted in
a public statement that there was insufficient evidence to indict
anyone for the rape and murder of Jeanine Nicarico. Although no
additional evidence was obtained in the interim, the indictment was
returned in March, when Fitzsimmons held the defamatory press
conference so shortly before the primary election. Petitioner was
then arrested, and because he was unable to meet the bond (set at
$3 million), he was held in jail.
Petitioner's trial began 10 months later, in January 1985.
The principal evidence against him was provided by Robbins, the
North Carolina anthropologist. Because the jury was unable to reach
a verdict on the charges against petitioner, the trial judge
declared a mistrial. Petitioner remained in prison for two more
years, during which a third party confessed to the crime and the
prosecutors prepared for petitioner's retrial. After Robbins died,
however, all charges against him were dropped. He was released, and
filed this action.
II
We are not concerned with petitioner's actions against the
police officers (who have asserted the defense of qualified
immunity), against the expert witnesses (whose trial testimony was
granted absolute immunity by the District Court, App. 53-57), and
against Du Page County (whose motion to dismiss on other grounds
was granted in part,
id., at 57-61). At issue here is only
the action against the prosecutors, who moved to dismiss based on
their claim to absolute immunity. The District Court held that
respondents were entitled to absolute immunity for all claims
except the claim against Fitzsimmons based on his press conference.
Id., at 53. With respect to the claim based on the alleged
fabrication of evidence, the District Court framed the question as
whether
265
the effort "to obtain definitive boot evidence linking
[petitioner to the crime] was in the nature of acquisition of
evidence or in the nature of evaluation of evidence for the purpose
of initiating the criminal process."
Id., at 45. The Court
concluded that it "appears" that it was more evaluative than
acquisitive.
Both petitioner and Fitzsimmons appealed, and a divided panel of
the Court of Appeals for the Seventh Circuit ruled that the
prosecutors had absolute immunity on both claims.
Buckley v.
Fitzsimmons, 919 F.2d
1230 (1990). In the Court of Appeals' view, "damages remedies
are unnecessary,"
id., at 1240, when "[c]ourts can curtail
the costs of prosecutorial blunders ... by cutting short the
prosecution or mitigating its effects,"
id., at 1241. Thus,
when "out-ofcourt acts cause injury only to the extent a case
proceeds" in court,
id., at 1242, the prosecutor is entitled
to absolute immunity and "the defendant must look to the court in
which the case pends to protect his interests,"
id., at
1241. By contrast, if "a constitutional wrong is complete before
the case begins," the prosecutor is entitled only to qualified
immunity.
Id., at 1241-1242. Applying this unprecedented
theory to petitioner's allegations, the Court of Appeals concluded
that neither the press conference nor the fabricated evidence
caused any constitutional injury independent of the indictment and
trial.
Id., at 1243, 1244.2
2 With respect to an issue not before us, petitioner's claims
that he was subject to coercive interrogations by some of the
respondent prosecutors, the court found that the extent of immunity
depended on the nature of those claims. The court reasoned that,
because claims based on
Miranda v.
Arizona, 384 U. S. 436 (1966), and
the Self-Incrimination Clause of the Fifth Amendment depend on what
happens at trial, prosecutors are entitled to absolute immunity for
those claims; by contrast, only qualified immunity is available
against petitioner's claims as to "coercive tactics that are
independently wrongful." 919 F. 2d, at 1244. Because it could not
characterize the nature of those claims, the court remanded for
further proceedings concerning Fitzsimmons, King, and Knight on
this issue.
Id., at 1245.
266
Judge Fairchild dissented in part. He agreed with the District
Court that Fitzsimmons was entitled only to qualified immunity for
his press statements. He noted that the majority had failed to
examine the particular function that Fitzsimmons was performing,
and concluded that conducting a press conference was not among "the
functions that entitle judges and prosecutors in the judicial
branch to absolute immunity."
Id., at 1246 (opinion
dissenting in part and concurring in part). Responding directly to
the majority's reasoning, he wrote:
"It is true that procedures afforded in our system of justice
give a defendant a good chance to avoid such results of prejudicial
publicity as excessive bail, difficulty or inability of selecting
an impartial jury, and the like. These procedures reduce the cost
of impropriety by a prosecutor, but I do not find that the courts
have recognized their availability as a sufficient reason for
conferring immunity." Ibid.
We granted Buckley's petition for certiorari, vacated the
judgment, and remanded the case for further proceedings in light of
our intervening decision in
Burns v.
Reed, 500 U. S. 478 (1991). 502
U. S. 801 (1991). On remand, the same panel, again divided,
reaffirmed its initial decision, with one modification not relevant
here.
952 F.2d
965 (CA7 1992)
(per curiam). The Court of Appeals held
that "[nJothing in
Burns undermine[dJ" its initial holding
that prosecutors are absolutely immune for "normal preparatory
steps"; unlike the activities at issue in
Burns, "[tJalking
with (willing) experts is trial preparation." 952 F. 2d, at
966-967. In similar fashion, the court adhered to its conclusion
that Fitzsimmons was entitled to absolute immunity for conducting
the press conference. The court recognized that the press
conference bore some similarities to the conduct in
Burns
(advising the police as to the propriety of an arrest). It did not
take place in court, and it was not part of the prosecutor's
267
trial preparation. 952 F. 2d, at 967. The difference, according
to the court, is that "[a]n arrest causes injury whether or not a
prosecution ensues," whereas the only constitutional injury caused
by the press conference depends on judicial action.
Ibid.
Judge Fairchild again dissented. He adhered to his earlier
conclusion that Fitzsimmons was entitled to only qualified immunity
for the press conference, but he was also persuaded that
Burns had drawn a line between "'conduct closely related to
the judicial process'" and conduct in the role of" 'administrator
or investigative officer.'" He agreed that trial preparation falls
on the absolute immunity side of that line, but felt otherwise
about the search for favorable evidence that might link the
bootprint to petitioner during "a year long pre-arrest and
pre-indictment investigation" aggressively supervised by
Fitzsimmons. 952 F. 2d, at 969 (opinion dissenting in part).
We granted certiorari for a second time, limited to issues
relating to prosecutorial immunity. 506 U. S. 814 (1992).3 We now
reverse.
III
The principles applied to determine the scope of immunity for
state officials sued under Rev. Stat. § 1979, as amended,
3 Although petitioner also alleged that respondents violated his
constitutional rights in presenting the fabricated evidence to the
grand jury and his trial jury, see App. 10-11, 14-15, we are not
presented with any question regarding those claims. The Court of
Appeals agreed with the District Court, see
id., at 45-47,
and held that those actions were protected by absolute immunity.
Buckley v.
Fitzsimmons, 919 F.2d
1230, 1243
(CA7 1990) ("The selection of evidence to
present to the grand jurors, and the manner of questioning
witnesses, can no more be the basis of liability than may the
equivalent activities before the petit jury"). That decision was
made according to traditional principles of absolute immunity under
§ 1983, however, and did not depend on the original, injury-focused
theory of absolute prosecutorial immunity with which we are
concerned here; nor was it included within the questions presented
in petitioner's petition for certiorari.
268
42 U. S. C. § 1983, are by now familiar. Section 1983 on its
face admits of no defense of official immunity. It subjects to
liability "[e]very person" who, acting under color of state law,
commits the prohibited acts. In
Tenney v.
Brandhove,
341 U. S. 367, 376 (1951), however, we held that Congress did
not intend § 1983 to abrogate immunities "well grounded in history
and reason." Certain immunities were so well established in 1871,
when § 1983 was enacted, that "we presume that Congress would have
specifically so provided had it wished to abolish" them.
Pierson v.
Ray, 386 U. S. 547, 554-555
(1967). See also
Newport v.
Fact Concerts, Inc., 453
U. S. 247, 258 (1981). Although we have found immunities in § 1983
that do not appear on the face of the statute, "[w]e do not have a
license to establish immunities from § 1983 actions in the
interests of what we judge to be sound public policy."
Tower
v.
Glover, 467
U. S. 914, 922-923 (1984). "[O]ur role is to interpret the
intent of Congress in enacting § 1983, not to make a freewheeling
policy choice."
Malley v.
Briggs, 475 U. S. 335, 342
(1986).
Since
Tenney, we have recognized two kinds of immunities
under § 1983. Most public officials are entitled only to qualified
immunity.
Harlow v.
Fitzgerald, 457 U. S. 800, 807
(1982); Butz v.
Economou, 438 U. S. 478, 508
(1978). Under this form of immunity, government officials are not
subject to damages liability for the performance of their
discretionary functions when "their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known."
Harlow v.
Fitzgerald, 457 U. S., at 818. In most cases, qualified
immunity is sufficient to "protect officials who are required to
exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority."
Butz v.
Economou, 438 U. S., at 506.
We have recognized, however, that some officials perform
"special functions" which, because of their similarity to func-
269
tions that would have been immune when Congress enacted § 1983,
deserve absolute protection from damages liability.
Id., at
508. "[T]he official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in
question."
Burns v.
Reed, 500 U. S., at 486;
Antoine v.
Byers &
Anderson, Inc.,
508 U. S. 429,
432, and n. 4 (1993). Even when we can identify a common-law
tradition of absolute immunity for a given function, we have
considered "whether § 1983's history or purposes nonetheless
counsel against recognizing the same immunity in § 1983 actions."
Tower v.
Glover, 467 U. S., at 920. Not surprisingly,
we have been "quite sparing" in recognizing absolute immunity for
state actors in this context.
Forrester v.
White,
484 U. S. 219,
224 (1988).
In determining whether particular actions of government
officials fit within a common-law tradition of absolute immunity,
or only the more general standard of qualified immunity, we have
applied a "functional approach," see,
e. g.,
Burns, 500 U. S., at 486, which looks to "the nature of the
function performed, not the identity of the actor who performed
it,"
Forrester v.
White, 484 U. S., at 229. We have
twice applied this approach in determining whether the functions of
contemporary prosecutors are entitled to absolute immunity.
In
Imbler v.
Pachtman, 424 U. S. 409 (1976), we
held that a state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosecution, including
presentation of the State's case at trial. Noting that our earlier
cases had been "predicated upon a considered inquiry into the
immunity historically accorded the relevant official at common law
and the interests behind it,"
id., at 421, we focused on the
functions of the prosecutor that had most often invited common-law
tort actions. We concluded that the commonlaw rule of immunity for
prosecutors was "well settled" and that "the same considerations of
public policy that underlie the common-law rule likewise
countenance absolute immu-
270
nity under § 1983."
Id., at 424. Those considerations 4
supported a rule of absolute immunity for conduct of prosecutors
that was "intimately associated with the judicial phase of the
criminal process."
Id., at 430. In concluding that "in
initiating a prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under § 1983,"
we did not attempt to describe the line between a prosecutor's acts
in preparing for those functions, some of which would be absolutely
immune, and his acts of investigation or "administration," which
would not.
Id., at 431, and n.33.
We applied the
Imbler analysis two Terms ago in
Burns v.
Reed, 500 U. S. 478 (1991).
There the § 1983 suit challenged two acts by a prosecutor: (1)
giving legal advice to the police on the propriety of hypnotizing a
suspect and on whether probable cause existed to arrest that
suspect, and (2) participating in a probable-cause hearing. We held
that only the latter was entitled to absolute immunity. Immunity
for that action under § 1983 accorded with the commonlaw absolute
immunity of prosecutors and other attorneys for eliciting false or
defamatory testimony from witnesses or for making false or
defamatory statements during, and related to, judicial proceedings.
Id., at 489-490;
id., at 501 (SCALIA, J., concurring
in judgment in part and dissenting in
4 In particular, we expressed concern that fear of potential
liability would undermine a prosecutor's performance of his duties
by forcing him to consider his own potential liability when making
prosecutorial decisions and by diverting his "energy and attention
... from the pressing duty of enforcing the criminal law."
Imbler v.
Pachtman, 424 U. S., at 424-425. Suits
against prosecutors would devolve into "a virtual retrial of the
criminal offense of a new forum,"
id., at 425, and would
undermine the vigorous enforcement of the law by providing a
prosecutor an incentive not "to go forward with a close case where
an acquittal likely would trigger a suit against him for damages,"
id., at 426, and n. 24. We also expressed concern that the
availability of a damages action might cause judges to be reluctant
to award relief to convicted defendants in post-trial motions.
Id., at 427.
271
part). Under that analysis, appearing before a judge and
presenting evidence in support of a motion for a search warrant
involved the prosecutor's "'role as advocate for the State.'"
Id., at 491, quoting
Imbler, 424 U. S., at 431, n.
33. Because issuance of a search warrant is a judicial act,
appearance at the probable-cause hearing was "'intimately
associated with the judicial phase of the criminal process,'"
Burns, 500 U. S., at 492, quoting
Imbler, 424 U. S.,
at 430.
We further decided, however, that prosecutors are not entitled
to absolute immunity for their actions in giving legal advice to
the police. We were unable to identify any historical or common-law
support for absolute immunity in the performance of this function.
500 U. S., at 492-493. We also noted that any threat to the
judicial process from "the harassment and intimidation associated
with litigation" based on advice to the police was insufficient to
overcome the "[a]bsen[ce] [of] a tradition of immunity comparable
to the common-law immunity from malicious prosecution, which formed
the basis for the decision in
Imbler." Id., at 493,494. And
though we noted that several checks other than civil litigation
prevent prosecutorial abuses in advising the police, "one of the
most important checks, the judicial process," will not be effective
in all cases, especially when in the end the suspect is not
prosecuted.
Id., at 496. In sum, we held that providing
legal advice to the police was not a function "closely associated
with the judicial process."
Id., at 495.
IV
In this case the Court of Appeals held that respondents are
entitled to absolute immunity because the injuries suffered by
petitioner occurred during criminal proceedings. That holding is
contrary to the approach we have consistently followed since
Imbler. As we have noted, the
Imbler approach focuses
on the conduct for which immunity is claimed, not on the harm that
the conduct may have caused or the question whether it was lawful.
The location of the
272
injury may be relevant to the question whether a complaint has
adequately alleged a cause of action for damages (a question that
this case does not present, see
supra, at 261). It is
irrelevant, however, to the question whether the conduct of a
prosecutor is protected by absolute immunity. Accordingly, although
the Court of Appeals' reasoning may be relevant to the proper
resolution of issues that are not before us, it does not provide an
acceptable basis for concluding that either the preindictment
fabrication of evidence or the postindictment press conference was
a function protected by absolute immunity. We therefore turn to
consider each of respondents' claims of absolute immunity.
A
We first address petitioner's argument that the prosecutors are
not entitled to absolute immunity for the claim that they conspired
to manufacture false evidence that would link his boot with the
bootprint the murderer left on the front door. To obtain this false
evidence, petitioner submits, the prosecutors shopped for experts
until they found one who would provide the opinion they sought.
App. 7-9. At the time of this witness shopping the assistant
prosecutors were working hand in hand with the sheriff's detectives
under the joint supervision of the sheriff and State's attorney
Fitzsimmons.
Petitioner argues 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. This
extreme position is plainly foreclosed by our opinion in
Imbler itself. We expressly stated 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 are nonetheless entitled to absolute
immunity.
Id., at 431, n. 33. We noted in particular that an
out-of-court "effort to control the presen-
273
tation of [a] witness' testimony" was entitled to absolute
immunity because it was "fairly within [the prosecutor's] function
as an advocate."
Id., at 430, n. 32. To be sure,
Burns made explicit the point we had reserved in
Imbler, 424 U. S., at 430-431, and n. 33: A prosecutor's
administrative duties and those investigatory functions that do not
relate to an advocate's preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to
absolute immunity. See
Burns, 500 U. S., at 494-496. We have
not retreated, however, from the principle that acts undertaken by
a prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his role
as an advocate for the State, are entitled to the protections of
absolute immunity. Those acts must include the professional
evaluation of the evidence assembled by the police and appropriate
preparation for its presentation at trial or before a grand jury
after a decision to seek an indictment has been made.
On the other hand, as the function test of
Imbler
recognizes, the actions of a prosecutor are not absolutely immune
merely because they are performed by a prosecutor. Qualified
immunity" 'represents the norm'" for executive officers,
Malley v.
Briggs, 475 U. S., at 340, quoting
Harlow v.
Fitzgerald, 457 U. S., at 807, so when a
prosecutor "functions as an administrator rather than as an officer
of the court" he is entitled only to qualified immunity.
Imbler, 424 U. S., at 431, n. 33. There is a difference
between the advocate's role in evaluating evidence and interviewing
witnesses as he prepares for trial, on the one hand, and the
detective's role in searching for the clues and corroboration that
might give him probable cause to recommend that a suspect be
arrested, on the other hand. 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."
Hampton v.
Chicago, 484 F.2d
602, 608 (CA7 1973)
274
(internal quotation marks omitted), cert. denied, 415 U. S. 917
(1974). Thus, if a prosecutor plans and executes a raid on a
suspected weapons cache, he "has no greater claim to complete
immunity than activities of police officers allegedly acting under
his direction." 484 F. 2d, at 608-609.
The question, then, is whether the prosecutors have carried
their burden of establishing that they were functioning as
"advocates" when they were endeavoring to determine whether the
bootprint at the scene of the crime had been made by petitioner's
foot. A careful examination of the allegations concerning the
conduct of the prosecutors during the period before they convened a
special grand jury to investigate the crime provides the answer.
See
supra, at 263, n. 1. The prosecutors do not contend that
they had probable cause to arrest petitioner or to initiate
judicial proceedings during that period. Their mission at that time
was entirely investigative in character. A prosecutor neither is,
nor should consider himself to be, an advocate before he has
probable cause to have anyone arrested.5
5 Of course, a determination of probable cause does not
guarantee a prosecutor absolute immunity from liability for all
actions taken afterwards. Even after that determination, as the
opinion dissenting in part points out,
post, at 290, a
prosecutor may engage in "police investigative work" that is
entitled to only qualified immunity.
Furthermore, there is no "true anomaly,"
post, at 286, in
denying absolute immunity for a state actor's investigative acts
made before there is probable cause to have a suspect arrested just
because a prosecutor would be entitled to absolute immunity for the
malicious prosecution of someone whom he lacked probable cause to
indict. That criticism ignores the essence of the function test.
The reason that lack of probable cause allows us to deny absolute
immunity to a state actor for the former function (fabrication of
evidence) is that there is no common-law tradition of immunity for
it, whether performed by a police officer or prosecutor. The reason
that we grant it for the latter function (malicious prosecution) is
that we have found a common-law tradition of immunity for a
prosecutor's decision to bring an indictment, whether he has
probable cause or not. By insisting on an equation of the two
functions merely because a prosecutor
275
It was well after the alleged fabrication of false evidence
concerning the bootprint that a special grand jury was empaneled.
And when it finally was convened, its immediate purpose was to
conduct a more thorough investigation of the crime-not to return an
indictment against a suspect whom there was already probable cause
to arrest. Buckley was not arrested, in fact, until 10 months after
the grand jury had been convened and had finally indicted him.
Under these circumstances, the prosecutors' conduct occurred well
before they could properly claim to be acting as advocates.
Respondents have not cited any authority that supports an argument
that a prosecutor's fabrication of false evidence during the
preliminary investigation of an unsolved crime was immune from
liability at common law, either in 1871 or at any date before the
enactment of § 1983. It therefore remains protected only by
qualified immunity.
After
Burns, it would be anomalous, to say the least, to
grant prosecutors only qualified immunity when offering legal
advice to police about an unarrested suspect, but then to endow
them with absolute immunity when conducting investigative work
themselves in order to decide whether a suspect may be arrested.6
That the prosecutors later called
might be subject to liability for one but not the other, the
dissent allows its particular policy concerns to erase the function
test it purports to respect.
In general, the dissent's distress over the denial of absolute
immunity for prosecutors who fabricate evidence regarding unsolved
crimes,
post, at 283-285, like the holding of the Court of
Appeals, seems to conflate the question whether a § 1983 plaintiff
has stated a cause of action with the question whether the
defendant is entitled to absolute immunity for his actions.
6 Cf.
Burns v.
Reed, 500 U. S. 478, 495
(1991): "Indeed, it is incongruous to allow prosecutors to be
absolutely immune from liability for giving advice to the police,
but to allow police officers only qualified immunity for following
the advice .... Almost any action by a prosecutor, including his or
her direct participation in purely investigative activity, could be
said to be in some way related to the ultimate decision whether to
prosecute, but we have never indicated that absolute immunity is
that expansive." If the police, under the guidance of the
prosecutors, had solicited the alleg-
276
a grand jury to consider the evidence this work produced does
not retroactively transform that work from the administrative into
the prosecutoriaP A prosecutor may not shield his investigative
work with the aegis of absolute immunity merely because, after a
suspect is eventually arrested, indicted, and tried, that work may
be retrospectively described as "preparation" for a possible trial;
every prosecutor might then shield himself from liability for any
constitutional wrong against innocent citizens by ensuring that
they go to trial. When the functions of prosecutors and detectives
are the same, as they were here, the immunity that protects them is
also the same.
B
We next consider petitioner's claims regarding Fitzsimmons'
statements to the press. Petitioner alleged that, during the
prosecutor's public announcement of the indictment, Fitzsimmons
made false assertions that numerous pieces of evidence, including
the bootprint evidence, tied Buckley to a burglary ring that
committed the Nicarico murder. App. 12. Petitioner also alleged
that Fitzsimmons released mug shots of him to the media, "which
were prominently and repeatedly displayed on television and in the
newspapers."
Ibid. Peti-
edly "fabricated" testimony, of course, they would not be
entitled to anything more than qualified immunity.
7 See
Imbler v.
Pachtman, 424 U. S. 409, 431, n. 33
(1976): "Preparation, both for the initiation of the criminal
process and for a trial, may require the obtaining, reviewing, and
evaluating of evidence. At some point, and with respect to some
decisions, the prosecutor no doubt functions as an administrator
rather than as an officer of the court. Drawing a proper line
between these functions may present difficult questions, but this
case does not require us to anticipate them." Although the
respondents rely on the first sentence of this passage to suggest
that a prosecutor's actions in "obtaining, reviewing, and
evaluating" evidence are always protected by absolute immunity, the
sentence that follows qualifies that suggestion. It confirms that
some of these actions may fall on the administrative, rather than
the judicial, end of the prosecutor's activities, and therefore be
entitled only to qualified immunity.
277
tioner's legal theory is that "[t]hese false and prejudicial
statements inflamed the populace of DuPage County against" him,
ibid.; see also
id., at 14, thereby defaming him,
resulting in deprivation of his right to a fair trial, and causing
the jury to deadlock rather than acquit,
id., at 19.
Fitzsimmons' statements to the media are not entitled to
absolute immunity. Fitzsimmons does not suggest that in 1871 there
existed a common-law immunity for a prosecutor's, or attorney's,
out-of-court statement to the press. The Court of Appeals agreed
that no such historical precedent exists. 952 F. 2d, at 967.
Indeed, while prosecutors, like all attorneys, were entitled to
absolute immunity from defamation liability for statements made
during the course of judicial proceedings and relevant to them, see
Burns, 500 U. S., at 489-490;
Imbler, 424 U. S., at
426, n. 23;
id., at 439 (WHITE, J., concurring in judgment),
most statements made out of court received only good-faith
immunity. The common-law rule was that "[t]he speech of a counsel
is privileged by the occasion on which it is spoken .... "
Flint v.
Pike, 4 Barn. & Cress. 473, 478, 107
Eng. Rep. 1136, 1138 (K. B. 1825) (Bayley, J.).8
The functional approach of
Imbler, which conforms to the
common-law theory, leads us to the same conclusion. Comments to the
media have no functional tie to the judicial process just because
they are made by a prosecutor. At the
8 "[Absolute immunity] does not apply to or include any
publication of defamatory matter before the commencement, or after
the termination of the judicial proceeding (unless such publication
is an act incidental to the proper initiation thereof, or giving
legal effect thereto); nor does it apply to or include any
publication of defamatory matter to any person other than those to
whom, or in any place other than that in which, such publication is
required or authorized by law to be made for the proper conduct of
the judicial proceedings." Veeder, Absolute Immunity in
Defamation:
Judicial Proceedings, 9 Colum. L. Rev. 463, 489 (1909)
(footnotes omitted). See,
e. g., Viosca v.
Landfried, 140 La. 610, 615, 73 So. 698, 700 (1916);
Youmans v.
Smith, 153 N. Y. 214, 220-223, 47 N. E.
265, 267-268 (1897). See also G. Bower, Law of Actionable
Defamation 103, n.
h, 104-105 (1908).
278
press conference, Fitzsimmons did not act in "'his role as
advocate for the State,'"
Burns v.
Reed, 500 U. S.,
at 491, quoting
Imbler v.
Pachtman, 424 U. S., at
431, n. 33. The conduct of a press conference does not involve the
initiation of a prosecution, the presentation of the State's case
in court, or actions preparatory for these functions. Statements to
the press may be an integral part of a prosecutor's job, see
National District Attorneys Assn., National Prosecution Standards
107, 110 (2d ed. 1991), and they may serve a vital public function.
But in these respects a prosecutor is in no different position than
other executive officials who deal with the press, and, as noted,
supra, at 268, 277, qualified immunity is the norm for
them.
Fitzsimmons argues nonetheless that policy considerations
support extending absolute immunity to press statements. Brief for
Respondents 30-33. There are two responses to his submissions.
First, "[w]e do not have a license to establish immunities from §
1983 actions in the interests of what we judge to be sound public
policy."
Tower v.
Glover, 467 U. S., at 922-923.
When, as here, the prosecutorial function is not within the
advocate's role and there is no historical tradition of immunity on
which we can draw, our inquiry is at an end. Second, "[t]he
presumption is that qualified rather than absolute immunity is
sufficient to protect government officials in the exercise of their
duties."
Burns v.
Reed, 500 U. S., at 486-487. Even
if policy considerations allowed us to carve out new absolute
immunities to liability for constitutional wrongs under § 1983, we
see little reason to suppose that qualified immunity would provide
adequate protection to prosecutors in their provision of legal
advice to the police, see
id., at 494-496, yet would fail to
provide sufficient protection in the present context.9
9 The Circuits other than the Seventh Circuit that have
addressed this issue have applied only qualified immunity to press
statements, see,
e. g., Powers v.
Coe,
728 F.2d
97,103
(CA2 1984);
Marrero v.
Hialeah,
625 F.2d
499, 506-507
(CA5 1980), cert. denied, 450 U. S. 913
(1981);
Gobel v.
Mari-
279
V
In his complaint, petitioner also charged that the prosecutors
violated his rights under the Due Process Clause through extraction
of statements implicating him by coercing two witnesses and paying
them money. App. 9-11, 19. The precise contours of these claims are
unclear, and they were not addressed below; we leave them to be
passed on in the first instance by the Court of Appeals on
remand.
As we have stated,
supra, at 261, 264, 265, n. 2,
petitioner does not challenge many aspects of the Court of Appeals'
decision, and we have not reviewed them; they remain undisturbed by
this opinion. As to the two challenged rulings on absolute
immunity, however, the judgment of the United States Court of
Appeals for the Seventh Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring.
As the Court observes, respondents have not demonstrated that
the function either of fabricating evidence during the preliminary
investigation of a crime, or of making out-of-court statements to
the press, was protected by a well-established common-law privilege
in 1871, when § 1983 was enacted. See
ante, at 275, 277. It
follows that respondents' alleged performance of such acts is not
absolutely
copa County, 867 F.2d
1201, 1205
(CA9 1989);
England v.
Hendricks,
880 F. 2d 281, 285 (CAlO 1989), cert. denied, 493 U. S. lO78
(1990);
Marx v.
Gumbinner, 855
F.2d 783, 791 (CAll 1988); cf.
Rose v.
Bartle,
871 F. 2d
331,345-346 (CA3 1989), yet Fitzsimmons has not
suggested that prosecutors in those Circuits have been unduly
constrained in keeping the public informed of pending criminal
prosecutions. We also do not perceive why anything except a firm
common-law rule should entitle a prosecutor to absolute immunity
for his statements to the press when nonprosecutors who make
similar statements, for instance, an attorney general's press
spokesperson or a police officer announcing the return of an
indictment, receive only qualified immunity.
280
immune from suit under § 1983, since "the presumed legislative
intent not to eliminate traditional immunities is our only
justification for limiting the categorical language of the
statute."
Burns v.
Reed, 500 U. S. 478, 498 (1991)
(SCALIA, J., concurring in judgment in part and dissenting in
part); accord,
ante, at 267-269. The policy reasons for
extending protection to such conduct may seem persuasive, see
post, at 283-286 (KENNEDY, J., concurring in part and
dissenting in part), but we simply "do not have a license to
establish immunities from § 1983 actions in the interests of what
we judge to be sound public policy,"
Tower v.
Glover,
467 U. S. 914,
922-923 (1984). This is therefore an easy case, in my view, and I
have no difficulty joining the Court's judgment.
I join the Court's opinion as well, though I have some
reservation about the historical authenticity of the "principle
that acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State, are entitled
to the protections of absolute immunity,"
ante, at 273. By
the early years of this century, there was some authority for the
proposition that the traditional defamation immunity extends to
"act[s] incidental to the proper initiation" or pursuit of a
judicial proceeding, such as "[s]tatements made by counsel to
proposed witnesses," Veeder, Absolute Immunity in Defamation:
Judicial Proceedings, 9 Colum. L. Rev. 463, 489, and n. 82 (1909).
See,
e. g., G. Bower, Actionable Defamation 103-105,
and n.
h (1908);
Youmans v.
Smith, 153 N. Y.
214, 47 N. E. 265 (1897). I have not found any previous expression
of such a principle, but accede to the Court's judgment that it
existed several decades earlier, when § 1983 was enacted, at least
in the sense that it could be logically derived from then-existing
decisions, cf.
Burns, supra, at 505 (SCALIA, J., concurring
in judgment in part and dissenting in part). In future cases, I
trust the Court (aided by briefing on the point) will look to
history to determine more precisely the outlines of this principle.
It is certainly
281
in accord with the principle to say that prosecutors cannot
"properly claim to be acting as advocates"
before they have
"probable cause to have anyone arrested,"
ante, at 274,
275but reference to the common-law cases will be indispensable to
show when they can properly claim to be acting "as advocates"
after that point, though not yet "during the course of
judicial proceedings,"
ante, at 277.
I believe, moreover, that the vagueness of the
"acting-asadvocate" principle may be less troublesome in practice
than it seems in theory, for two reasons. First, the Court
reaffirms that the defendant official bears the burden of showing
that the conduct for which he seeks immunity would have been
privileged at common law in 1871. See
ante, at 269, 275,
277-278. Thus, if application of the principle is unclear, the
defendant simply loses. Second, many claims directed at
prosecutors, of the sort that are based on acts not plainly covered
by the conventional malicious-prosecution and defamation
privileges, are probably not actionable under § 1983, and so may be
dismissed at the pleading stage without regard to
immunity-undermining the dissent's assertion that we have converted
absolute prosecutorial immunity into "little more than a pleading
rule,"
post, at 283. I think petitioner's false-evidence
claims in the present case illustrate this point. Insofar as they
are based on respondents' supposed knowing
use of fabricated
evidence before the grand jury and at trial, see
ante, at
267, n. 3-acts which might state a claim for denial of due process,
see,
e. g., Mooney v.
Holohan, 294 U. S. 103, 112 (1935)
(per curiam)-the traditional defamation immunity provides
complete protection from suit under § 1983. If "reframe[d] ... to
attack the preparation" of that evidence,
post, at 283, the
claims are unlikely to be cognizable under § 1983, since petitioner
cites, and I am aware of, no authority for the proposition that the
mere preparation of false evidence, as opposed to its use in a
fashion that deprives someone of a fair trial or otherwise harms
him, violates the Constitution. See
Buckley v.
Fitzsimmons, 919
282
Opinion of KENNEDY, J.
F. 2d 1230, 1244 (CA7 1990), vacated and remanded, 502 U. S. 801
(1991).
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE SOUTER join, concurring in part and dissenting in part.
I agree there is no absolute immunity for statements made during
a press conference. But I am unable to agree with the Court's
conclusion that respondents are not entitled to absolute immunity
on petitioner's claim that they conspired to manufacture false
evidence linking petitioner to the bootprint found on the front
door of Jeanine Nicarico's home. I join Parts I, II, III, and IV -B
of the Court's opinion, but dissent from Part IV-A.
I
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 267-268. See also
Burns v.
Reed, 500 U. S. 478, 484-486
(1991);
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
272. 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
283
his functional role as an advocate, were entitled to absolute
immunity, 424 U. S., at 431, n. 33. See
ante, at
269-270.
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
284
Opinion of KENNEDY, J.
one and not the other.'"
Ante, at 273, quoting
Hampton v.
Chicago, 484 F.2d
602,608 (CA71973), 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 the criminal 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,
supra, at 223. Moreover, "[e]xposing the prosecutor to
liability for the initial phase of
285
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 496, 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 preindictment
investigation because the injury suffered by the criminal defendant
occurred during the later criminal proceedings?" Pet. for Cert. i.
Remedies other than prosecutorialliability, for example, a pretrial
ruling of inadmissibility or a rejection by the trier of fact, are
more than adequate "to prevent abuses of authority by prosecutors."
Burns v.
Reed, supra, at 496. 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 494, or for every action that "could be said to be
in some way related to the ultimate decision whether to prosecute,"
id., at 495. 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 482 (noting
that the police officers sought the prosecutor's advice first to
find out whether hypnosis was "an unacceptable investiga-
286
Opinion of KENNEDY, J.
tive 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.
II
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 274. 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 492-496, but are endowed with absolute immunity when
conducting their own legal work regarding an unarrested suspect.
Ante, at 275-276.
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 493 ("[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. 158, 165
(1992); id., at 170 (KENNEDY, J., concurring);
id.,
at 177
287
(REHNQUIST, C. J., dissenting); W. Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on Law of 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
283.
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 of probable 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
288
Opinion of KENNEDY, J.
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[sJ a judicial function.'" 500 U. S., at 490, 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 492, 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 preprobable-cause
and post-probable-cause activity 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 276. 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."
Ibid. This step, it is alleged, would
enable any prosecutor to "retrospectively describ[eJ" 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
289
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 276. 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 similar conduct
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, 23 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 276, but
declining to institute a prosecution
290
Opinion of KENNEDY, J.
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 a 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.
III
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
291
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.
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