OCTOBER TERM, 1997
Syllabus
KALINA
v. FLETCHER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-792. Argued October 7, 1997-Decided December 10,1997
Following customary practice, petitioner prosecuting attorney
commenced criminal proceedings by filing three documents in
Washington state court: (1) an unsworn information charging
respondent with burglary; (2) an unsworn motion for an arrest
warrant; and (3) a "Certification for Determination of Probable
Cause," in which she summarized the evidence supporting the charge
and swore to the truth of the alleged facts "[u]nder penalty of
perjury." Based on the certification, the trial court found
probable cause, and respondent was arrested and spent a day in
jail. Later, however, the charges against him were dismissed on the
prosecutor's motion. Focusing on two inaccurate factual statements
in petitioner's certification, respondent sued her for damages
under 42 U. S. C. § 1983, alleging that she had violated his
constitutional right to be free from unreasonable seizures. The
Federal District Court denied her motion for summary judgment,
holding that she was not entitled to absolute prosecutorial
immunity and that whether qualified immunity would apply was a
question of fact. The Ninth Circuit affirmed.
Held: Section 1983 may create a damages remedy against a
prosecutor for making false statements of fact in an affidavit
supporting an application for an arrest warrant, since such conduct
is not protected by the doctrine of absolute prosecutorial
immunity. Pp. 123-131.
(a)
Imbler v.
Pachtman, 424 U. S. 409, 410,
430-431, and subsequent cases recognize that a criminal prosecutor
is fully protected by absolute immunity when performing the
traditional functions of an advocate, see,
e. g., Buckley v.
Fitzsimmons, 509 U. S. 259, 273, but
is protected only by qualified immunity when he is not acting as an
advocate, as where he functions as a complaining witness in
presenting a judge with a complaint and supporting affidavit to
establish probable cause for an arrest, see
Malley v.
Briggs, 475 U.
S. 335, 340-341. Under these cases, petitioner's activities in
connection with the preparation and filing of the information
against respondent and the motion for an arrest warrant clearly are
protected by absolute immunity as part of the advocate's function.
Indeed, except for her act in personally attesting to the truth of
the averments in the certification, the preparation and filing of
that third document was protected as well. Pp. 123-129.
119
(b) However, petitioner was acting as a complaining witness
rather than a lawyer when she executed the certification "[u]nder
penalty of perjury," and, insofar as she did so, § 1983 may provide
a remedy for respondent. Since the Fourth Amendment requirement
that arrest warrants be based "upon probable cause, supported by
Oath or affirmation" may not be satisfied by the mere filing of an
unsworn information signed by the prosecutor, see,
e. g.,
Gerstein v.
Pugh, 420 U. S. 103, 117, and
since most Washington prosecutions are commenced by information,
state law requires that an arrest warrant be supported by either an
affidavit "or sworn testimony establishing the grounds for issuing
the warrant." Petitioner's certification was designed to satisfy
those requirements, but neither federal nor state law made it
necessary for the prosecutor to make that certification.
Petitioner's argument that such execution was just one incident in
a presentation that, viewed as a whole, was the work of an advocate
is unavailing. Although the exercise of an advocate's professional
judgment informed petitioner's other actions, that judgment could
not affect the truth or falsity of the factual statements contained
in the certification. Testifying about facts is the function of the
witness, not of the lawyer. No matter how brief or succinct it may
be, the evidentiary component of an application for an arrest
warrant is a distinct and essential predicate for a finding of
probable cause. Even when the person who makes the constitutionally
required "Oath or affirmation" is a lawyer, the only function that
she performs is that of a witness. Petitioner's final argument,
that denying her absolute immunity will have a "chilling effect" on
prosecutors in the administration of justice, is not supported by
evidence and is unpersuasive. Pp. 129-131.
93 F.3d
653, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
SCALIA, J., filed a concurring opinion, in which THOMAS, J.,
joined,
post, p. 131.
Norm Maleng argued the cause for petitioner. With him on
the briefs were
Michael C.
Duggan and
John W
Cobb.
Patricia A. Millett argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were Acting
Solicitor General Dellinger, Assistant Attorney General Hunger,
Deputy Solicitor General Waxman, Deputy Assistant Attorney General
Preston, Barbara L. Herwig, and Peter R. Maier.
120
Timothy K. Ford argued the cause for respondent. With him
on the brief were
Robert S.
Mahler and
Daniel Hoyt
Smith. *
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether 42 U. S. C. § 1983 creates a
damages remedy against a prosecutor for making false statements of
fact in an affidavit supporting an application for an arrest
warrant, or whether, as she contends, such conduct is protected by
"the doctrine of absolute prosecutorial immunity."
I
Petitioner is a deputy prosecuting attorney for King County,
Washington. Following customary practice, on December 14, 1992, she
commenced a criminal proceeding
*Briefs of
amici curiae urging reversal were filed for
the State of Maryland et al. by
J. Joseph Curran,
Jr., Attorney General of Maryland, and
Andrew H. Baida
and
John B. Howard, Jr., Assistant Attorneys General, and by
the Attorneys General for their respective jurisdictions as
follows:
William H. Pryor, Jr., of Alabama; Bruce M. Botelho of Alaska,
Grant Woods of Arizona, Daniel E. Lungren of California, Robert A.
Butterworth of Florida, Calvin E. Holloway, Sr., of Guam, Margery
S. Bronster of Hawaii, James E. Ryan of Illinois, Thomas
J.
Miller of Iowa, Carla
J. Stovall of Kansas, Richard P.
Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank
J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P.
Mazurek of Montana, Frankie Sue Del Papa of Nevada, Steven M.
Houran of New Hampshire, Dennis C. Vacco of New York, Heidi
Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Hardy
Myers of Oregon, D. Michael Fisher of Pennsylvania, Mark Barnett of
South Dakota,
J. Wallace Malley, Jr., of Vermont, Julio A.
Brady of the Virgin Islands, Christine Q Gregoire of Washington,
Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of
Wisconsin, and William U. Hill of Wyoming; for the Thirty-Nine
Counties of the State of Washington by Russell D. Hauge, Pamela
Beth Loginsky, David Bruneau, Arthur Curtis, Allen C. Nielson,
David Skeen, Norm Maleng, Jeremy Randolf, John Ladenburg, James
Sweetser, James L. Nagle, David S. McEachran, James Kaufman, and
Jeffrey C. Sullivan; for the National Association of Counties et
al. by Richard Ruda and James I. Crowley; and for the National
District Attorneys' Association et al. by Gil Garcetti and Roderick
W Leonard.
121
against respondent by filing three documents in the King County
Superior Court. Two of those documents-an information charging
respondent with burglary and a motion for an arrest warrant-were
unsworn pleadings. The burglary charge was based on an alleged
theft of computer equipment from a school.
Washington Criminal Rules require that an arrest warrant be
supported by an affidavit or "sworn testimony establishing the
grounds for issuing the warrant." 1 To satisfy that requirement,
petitioner supported her motion with a third document-a
"Certification for Determination of Probable Cause" -that
summarized the evidence supporting the charge. She personally
vouched for the truth of the facts set forth in the certification
under penalty of perjury.2 Based on petitioner's certification, the
trial court found probable cause and ordered that an arrest warrant
be issued.
Petitioner's certification contained two inaccurate factual
statements. After noting that respondent's fingerprints had been
found on a glass partition in the school, petitioner stated that
respondent had "never been associated with the school in any manner
and did not have permission to enter the school or to take any
property."3 In fact, he had installed partitions on the premises
and was authorized to enter the school. She also stated that an
employee of an electronics store had identified respondent "from a
photo montage" as the person who had asked for an appraisal of a
computer stolen from the school. 4 In fact, the employee did not
identify respondent.5
1 Washington Criminal Rule 2.2(a); see Wash. Rev. Code §
9A.72.085 (1994) (providing,
inter alia, that a
certification made under penalty of perjury is the equivalent of an
affidavit). Accord, King County Local Criminal Rule 2.2.
2 App. 20.
3Id., at 19-20.
4Id., at 20.
5Id., at 5.
122
Respondent was arrested and spent a day in jail. About a month
later, the charges against him were dismissed on the prosecutor's
motion.
II
Respondent brought this action under Rev. Stat. § 1979, as
amended, 42 U. S. C. § 1983, seeking damages from petitioner based
on her alleged violation of his constitutional right to be free
from unreasonable seizures. In determining immunity, we accept the
allegations of respondent's complaint as true. See
Buckley
v.
Fitzsimmons, 509 U. S. 259, 261
(1993). Respondent's complaint focuses on the false statements made
by petitioner in the certification.6 Petitioner moved for summary
judgment on the ground that the three documents that she filed to
commence the criminal proceedings and to procure the arrest warrant
were protected by "the doctrine of absolute prosecutorial
immunity." 7 The District Court denied the motion, holding that she
was not entitled to absolute immunity and that whether qualified
immunity would apply was a question of fact.8 The Court of Appeals
for the Ninth Circuit affirmed.
The Ninth Circuit first noted that under our decision in
Malley v.
Briggs, 475 U. S. 335 (1986), "a
police officer who secures an arrest warrant without
probable cause cannot assert an absolute immunity defense," and
then observed that petitioner's "actions in writing, signing and
filing the declaration for an arrest warrant" were "virtually
identical to the police officer's actions in
Malley."
93 F.3d
653, 655656 (1996). Relying on the functional approach endorsed
in
Buckley v.
Fitzsimmons, the Court of Appeals
concluded that "it would be 'incongruous' to expose police to
potential liability while protecting prosecutors for the same act."
93 F. 3d, at 656.
6Id., at 5-6.
7Id., at 10. 8Id., at 21.
123
The Court of Appeals acknowledged that the Sixth Circuit had
reached a different result in
Joseph v.
Patterson,
795 F.2d
549, 555 (1986), cert. denied, 481 U. S. 1023 (1987), a case
that predated our decision in
Buckley. Because we have never
squarely addressed the question whether a prosecutor may be held
liable for conduct in obtaining an arrest warrant, we granted
certiorari to resolve the conflict. 519 U. S. 1148 (1997). We now
affirm.
III
Section 1983 is a codification of § 1 of the Civil Rights Act of
1871.9 The text of the statute purports to create a damages remedy
against every state official for the violation of any person's
federal constitutional or statutory rights.10 The coverage of the
statute is thus broader than the preexisting common law of torts.
We have nevertheless recognized that Congress intended the statute
to be construed in the light of common-law principles that were
well settled at the time of its enactment. See
Tenney v.
Brandhove, 341 U. S. 367 (1951);
Briscoe v.
LaHue, 460 U.
S. 325, 330 (1983). Thus, we have examined common-law doctrine
when identifying both the elements of the cause of action and the
defenses available to state actors.
In
Imbler v.
Pachtman, 424 U. S. 409 (1976), we
held that a former prisoner whose conviction had been set aside in
collateral proceedings could not maintain a § 1983 action against
the prosecutor who had litigated the charges against him. Relying
in part on common-law precedent, and per-
9 See
Briscoe v.
LaHue, 460 U. S. 325, 337
(1983). 10 Title 42 U. S. C. § 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress .... "
124
haps even more importantly on the policy considerations
underlying that precedent, we concluded that "a state prosecuting
attorney who acted within the scope of his duties in initiating and
pursuing a criminal prosecution" was not amenable to suit under §
1983.
Id., at 410.
Liberally construed, Imbler's complaint included not only a
charge that the prosecution had been wrongfully commenced, but also
a charge that false testimony had been offered as well as a charge
that exculpatory evidence had been suppressed. His constitutional
claims were thus broader than any specific common-law antecedent.
Nevertheless, relying on common-law decisions providing prosecutors
with absolute immunity from tort actions based on claims that the
decision to prosecute was malicious and unsupported by probable
cause,l1 as well as from actions for defamation based on statements
made during trial,12 we concluded that
11 See 424 U. S., at 421-422. The cases that the Court cited
were decided after 1871 and granted a broader immunity to public
prosecutors than had been available in malicious prosecution
actions against private persons who brought prosecutions at early
common law. See
Savile v.
Roberts, 1 Ld. Raym. 374,
91 Eng. Rep. 1147 (K. B. 1699);
Hill v.
Miles, 9 N.
H. 9 (1837); M. Bigelow, Leading Cases on the Law of Torts 193-204
(1875). However, these early cases were decided before the office
of public prosecutor in its modern form was common. See Langbein,
The Origins of Public Prosecution at Common Law, 17 Am. J. Legal
Hist. 313, 316 (1973); Kress, Progress and Prosecution, 423 Annals
Am. Acad. Pol. & Soc. Sci. 99, 100-102 (1976);
White v.
Frank, 855 F.2d
956, 962
(CA2 1988) (noting that "the availability of
the malicious prosecution action has been curtailed with the growth
of the office of the public prosecutor"). Thus, the Court in
Imbler drew guidance both from the first American cases
addressing the availability of malicious prosecution actions
against public prosecutors, and perhaps more importantly, from the
policy considerations underlying the firmly established common-law
rules providing absolute immunity for judges and jurors. See 424 U.
S., at 423, n. 20 (discussing similarity in some functions
performed by judges, jurors, and prosecutors);
Bradley v.
Fisher, 13 Wall. 335, 347 (1872);
Yates v.
Lansing, 5 Johns. 282 (N. Y. 1810) (Kent, C. J.); Note,
Civil Liability of a District Attorney for Quasi-Judicial Acts, 73
U. Pa. L. Rev. 300, 303, n. 13 (1925).
12 See 424 U. S., at 439-440 (White, J., concurring in
judgment).
125
the statute should be construed to provide an analogous defense
against the claims asserted by Imbler. The policy considerations
that justified the common-law decisions affording absolute immunity
to prosecutors when performing traditional functions applied
equally to statutory claims based on the conduct of the same
functions.
Those considerations included both the interest in protecting
the prosecutor from harassing litigation that would divert his time
and attention from his official duties and the interest in enabling
him to exercise independent judgment when "deciding which suits to
bring and in conducting them in court."
Id., at 424. The
former interest would lend support to an immunity from all
litigation against the occupant of the office whereas the latter is
applicable only when the official is performing functions that
require the exercise of prosecutorial discretion. Our later cases
have made it clear that it is the interest in protecting the proper
functioning of the office, rather than the interest in protecting
its occupant, that is of primary importance.
In
Imbler, we did not attempt to define the outer limits
of the prosecutor's absolute immunity, but we did recognize that
our rationale would not encompass some of his official activities.
Thus, while we concluded that Pachtman's "activities were
intimately associated with the judicial phase of the criminal
process, and thus were functions to which the reasons for absolute
immunity apply with full force,"
id., at 430, we put to one
side "those aspects of the prosecutor's responsibility that cast
him in the role of an administrator or investigative officer rather
than that of advocate,"
id., at 430-431.
Subsequent cases have confirmed the importance to the judicial
process of protecting the prosecutor when serving as an advocate in
judicial proceedings. Thus, in
Burns v.
Reed,
500 U. S. 478
(1991), after noting the consensus among the Courts of Appeals
concerning prosecutorial conduct before grand juries,
id.,
at 490, n. 6, we held that the prosecutor's
126
appearance in court in support of an application for a search
warrant and the presentation of evidence at that hearing were
protected by absolute immunity,
id., at 492. And in
Buckley, we categorically stated 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." 509 U. S., at 273.
In both of those cases, however, we found the defense
unavailable when the prosecutor was performing a different
function. In
Burns, the provision of legal advice to the
police during their pretrial investigation of the facts was
protected only by qualified, rather than absolute, immunity. 500 U.
S., at 492-496. Similarly, in
Buckley, the prosecutor was
not acting as an advocate either when he held a press conference,
509 U. S., at 276-278, or when he allegedly fabricated evidence
concerning an unsolved crime. With reference to the latter holding,
we explained:
"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) (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."
Id., at 273-274.
127
These cases make it clear that the absolute immunity that
protects the prosecutor's role as an advocate is not grounded in
any special "esteem for those who perform these functions, and
certainly not from a desire to shield abuses of office, but because
any lesser degree of immunity could impair the judicial process
itself."
Malley, 475 U. S., at 342. Thus, in determining
immunity, we examine "the nature of the function performed, not the
identity of the actor who performed it."
Forrester v.
White, 484 U.
S. 219, 229 (1988).13 This point is perhaps best illustrated by
the determination that the senior law enforcement official in the
Nation-the Attorney General of the United States-is protected only
by qualified, rather than absolute, immunity when engaged in the
performance of national defense functions rather than prosecutorial
functions.
Mitchell v.
Forsyth, 472 U. S. 511 (1985).
In
Malley we considered, and rejected, two theories on
which immunity might have been accorded to a police officer who had
caused an unconstitutional arrest by presenting a judge with a
complaint and supporting affidavit that failed to establish
probable cause. His first argument, that his function was
comparable to that of a complaining witness, actually militated
against his claim because such witnesses were subject to suit at
common law.14
13 Examining the nature of the function performed is not a
recent innovation. In
Ex parte Virginia, 100 U. S. 339, 348
(1880), we stated "[w]hether the act done by [a judge] was judicial
or not is to be determined by its character, and not by the
character of the agent." See also
Bradley v.
Fisher,
13 Wall., at 347 (examining "the character of the act" performed by
a judge).
14 We noted that:
"[C]omplaining witnesses were not absolutely immune at common
law. In 1871, the generally accepted rule was that one who procured
the issuance of an arrest warrant by submitting a complaint could
be held liable if the complaint was made maliciously and without
probable cause. Given malice and the lack of probable cause, the
complainant enjoyed no immu-
128
His second argument rested on the similarity between his conduct
and the functions often performed by prosecutors. As we
explained:
"As an alternative ground for claiming absolute immunity,
petitioner draws an analogy between an officer requesting a warrant
and a prosecutor who asks a grand jury to indict a suspect. Like
the prosecutor, petitioner argues, the officer must exercise a
discretionary judgment based on the evidence before him, and like
the prosecutor, the officer may not exercise his best judgment if
the threat of retaliatory lawsuits hangs over him. Thus, petitioner
urges us to read § 1983 as giving the officer the same absolute
immunity enjoyed by the prosecutor. Cf. Imbler v.
Pachtman, 424
U. S. 409 (1976).
" ... We intend no disrespect to the officer applying for a
warrant by observing that his action, while a vital part of the
administration of criminal justice, is further removed from the
judicial phase of criminal proceedings than the act of a prosecutor
in seeking an indictment. Furthermore, petitioner's analogy, while
it has some force, does not take account of the fact that the
prosecutor's act in seeking an indictment is but the first step in
the process of seeking a conviction. Exposing 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. Thus, we
shield the prosecutor seeking an indictment because any lesser
immunity could impair the performance of a central actor in the
judicial process." 475 U. S., at 341-343.
nity. The common law thus affords no support for petitioner."
Malley v.
Briggs, 475 U. S. 335, 340-341
(1986) (footnote omitted).
129
These cases make it quite clear that petitioner's activities in
connection with the preparation and filing of two of the three
charging documents-the information and the motion for an arrest
warrant-are protected by absolute immunity. Indeed, except for her
act in personally attesting to the truth of the averments in the
certification, it seems equally clear that the preparation and
filing of the third document in the package was part of the
advocate's function as well. The critical question, however, is
whether she was acting as a complaining witness rather than a
lawyer when she executed the certification "[u]nder penalty of
perjury." We now turn to that question.
IV
The Fourth Amendment requires that arrest warrants be based
"upon probable cause, supported by Oath or affirmation"-a
requirement that may be satisfied by an indictment returned by a
grand jury, but not by the mere filing of criminal charges in an
unsworn information signed by the prosecutor.
Gerstein v.
Pugh, 420 U.
S. 103, 117 (1975); see also
Coolidge v.
New
Hampshire, 403 U.
S. 443 (1971). Accordingly, since most prosecutions in
Washington are commenced by information, Washington law requires,
in compliance with the constitutional command, that an arrest
warrant be supported by either an affidavit "or sworn testimony
establishing the grounds for issuing the warrant." 15 The
"Certification for Determination of Probable Cause" executed by
petitioner was designed to satisfy those requirements.
Although the law required that document to be sworn or certified
under penalty of perjury, neither federal nor state law made it
necessary for the prosecutor to make that certification. In doing
so, petitioner performed an act that any
15Washington Criminal Rule 2.2(a) (1995) provides: "A warrant of
arrest must be supported by an affidavit,... or sworn testimony
establishing the grounds for issuing the warrant ... The court must
determine there is probable cause ... before issuing the warrant.
"
130
competent witness might have performed. Even if she may have
been following a practice that was routinely employed by her
colleagues and predecessors in King County, Washington, that
practice is surely not prevalent in other parts of the country and
is not even mandated by law in King County. Neither petitioner nor
amici argue that prosecutors routinely follow the King
County practice.16 Indeed, tradition, as well as the ethics of our
profession, generally instruct counsel to avoid the risks
associated with participating as both advocate and witness in the
same proceeding.17
Nevertheless, petitioner argues that the execution of the
certificate was just one incident in a presentation that, viewed as
a whole, was the work of an advocate and was integral to the
initiation of the prosecution. That characterization is appropriate
for her drafting of the certification, her determination that the
evidence was sufficiently strong to justify a probable-cause
finding, her decision to file charges, and her presentation of the
information and the motion to the court. Each of those matters
involved the exercise of professional judgment; indeed, even the
selection of the particular facts to include in the certification
to provide the evidentiary support for the finding of probable
cause required the exercise of the judgment of the advocate. But
that judgment could not affect the truth or falsity of the factual
statements themselves. Testifying about facts is the function of
the witness, not of the lawyer. No matter how
16 Amicus Curiae United States points out that federal
prosecutors typically do not personally attest to the facts in an
affidavit filed in support of an application for an arrest warrant,
but "[i]nstead a law enforcement agent ordinarily attests to those
facts." Brief 7.
Amici Curiae ThirtyNine Counties of the
State of Washington state that local court rules in only two
counties in Washington require the prosecutor to file an additional
document beyond an information. Brief 2.
17 See,
e. g., Washington Rule of Professional
Conduct 3.7 (1995) ("A lawyer shall not act as advocate at a trial
in which the lawyer ... is likely to be a necessary witness,"
unless four narrow exceptions apply); ABA Model Rules of
Professional Conduct 3.7 (1992).
131
brief or succinct it may be, the evidentiary component of an
application for an arrest warrant is a distinct and essential
predicate for a finding of probable cause. Even when the person who
makes the constitutionally required "Oath or affirmation" is a
lawyer, the only function that she performs in giving sworn
testimony is that of a witness.
Finally, petitioner argues that denying her absolute immunity
will have a "chilling effect" on prosecutors in the administration
of justice.18 We are not persuaded.
It may well be true that prosecutors in King County may abandon
the practice of routinely attesting to the facts recited in a
"Certification for Determination of Probable Cause" and pattern
their procedures after those employed in other parts of the Nation.
Petitioner presents no evidence that the administration of justice
is harmed where the King County practice is not followed. In other
respects, however, her argument addresses concerns that are not
affected by our decision because we merely hold that § 1983 may
provide a remedy for respondent insofar as petitioner performed the
function of a complaining witness. We do not depart from our prior
cases that have recognized that the prosecutor is fully protected
by absolute immunity when performing the traditional functions of
an advocate. See
Imbler, 424 U. S., at 431;
Buckley,
509 U. S., at 273.
Accordingly, the judgment of the Court of Appeals for the Ninth
Circuit is
Affirmed.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I agree that Ms. Kalina performed essentially the same
"function" in the criminal process as the police officers in
Malley v.
Briggs, 475 U. S. 335 (1986), and
so I join the opinion of the Court. I write separately because it
would be a
18 Brief for Petitioner 25.
132
shame if our opinions did not reflect the awareness that our
"functional" approach to 42 U. S. C. § 1983 immunity questions has
produced some curious inversions of the common law as it existed in
1871, when § 1983 was enacted. A conscientious prosecutor reading
our cases should now conclude that there is absolute immunity for
the decision to seek an arrest warrant after filing an information,
but only qualified immunity for testimony as a witness in support
of that warrant. The common-law rule was, in a sense, exactly
opposite.
There was, of course, no such thing as absolute prosecutorial
immunity when § 1983 was enacted. (Indeed, as the Court points out,
ante, at 124, n. 11, there generally was no such thing as
the modern public prosecutor.) The common law recognized a
"judicial" immunity, which protected judges, jurors and grand
jurors, members of courts-martial, private arbitrators, and various
assessors and commissioners. That immunity was absolute, but it
extended only to individuals who were charged with resolving
disputes between other parties or authoritatively adjudicating
private rights. When public officials made discretionary policy
decisions that did not involve actual adjudication, they were
protected by "quasi-judicial" immunity, which could be defeated by
a showing of malice, and hence was more akin to what we now call
"qualified," rather than absolute, immunity. I continue to believe
that "prosecutorial functions, had they existed in their modern
form in 1871, would have been considered quasi-judicial."
Burns v.
Reed, 500 U. S. 478, 500 (1991)
(SCALIA, J., concurring in judgment in part and dissenting in
part).
That conclusion accords with the common law's treatment of
private prosecutors, who once commonly performed the
"function" now delegated to public officials like petitioner. A
private citizen who initiated or procured a criminal prosecution
could (and can still) be sued for the tort of malicious
prosecution-but only if he acted maliciously and without
133
probable cause, and the prosecution ultimately terminated in the
defendant's favor. Thus, although these private prosecutors
(sometimes called "complaining witnesses"), since they were not
public servants, were not entitled to quasijudicial immunity, there
was a kind of qualified immunity built into the elements of the
tort.
The common law also recognized an absolute immunity for
statements made in the course of a judicial proceeding and relevant
to the matter being tried. That immunity protected both witnesses
and attorneys, and could not be defeated even by an allegation that
the statement was maliciously false. See,
e. g., F.
Hilliard, Law of Torts 319 (1866). It was, however, an immunity
only against slander and libel actions.
At common law, therefore, Kalina would have been protected by
something resembling qualified immunity if she were sued for
malicious prosecution. The tortious act in such a case would have
been her decision to bring criminal charges against Fletcher, and
liability would attach only if Fletcher could prove that the
prosecution was malicious, without probable cause, and ultimately
unsuccessful. Kalina's false statements as a witness in support of
the warrant application would not have been an independent
actionable tort (although they might have been
evidence of
malice or initiation in the malicious prosecution suit), because of
the absolute privilege protecting such testimony from suits for
defamation.
The Court's long road to what is, superficially at least, the
opposite result in today's opinion, began with
Imbler v.
Pachtman, 424
U. S. 409 (1976), which granted prosecutors absolute immunity
for the "function" of initiating a criminal prosecution. Then, in
Briscoe v.
LaHue, 460 U. S. 325 (1983), the
Court extended a similar absolute immunity to the "function" of
serving as a witness. And in
Malley v.
Briggs, supra,
it recognized the additional "functional category" of "complaining
witness." Since this category was
134
entitled to only qualified immunity, the Court overturned a
directed verdict in favor of a police officer who had caused the
plaintiff to be arrested by presenting a judge with a complaint and
an affidavit supporting probable cause. The Court said:
"[C]omplaining witnesses were not absolutely immune at common
law. In 1871, the generally accepted rule was that one who procured
the issuance of an arrest warrant by submitting a complaint could
be held liable if the complaint was made maliciously and without
probable cause. Given malice and the lack of probable cause, the
complainant enjoyed no immunity." Id., at 340-341.
That statement is correct, but it implies a distinction between
"witnesses" (absolutely immune) and "complaining witnesses" (at
best qualifiedly immune) which has little foundation in the common
law of 1871. That law did not recognize two kinds of witness; it
recognized two different torts. "In this sense, then,
Malley's discussion of complaining witnesses is a feint. The
Court was not awaking to a different type of witness ... so much as
recognizing a different cause of action-the action for malicious
prosecution." Comment, Police Witness Immunity Under § 1983, 56 U.
Chi. L. Rev. 1433, 1454 (1989). By the time
Malley was
decided, however, the Court's methodology forced it to express its
conclusion in terms of whether the particular "function" at issue
would have been entitled to immunity at common law. See,
e. g.,
Briscoe, supra, at 342 ("[O]ur cases clearly indicate that
immunity analysis rests on functional categories"). By inventing "a
new functional category: the complaining witness, who (in the
Court's specially-tailored history) was liable at common law and so
is liable under § 1983," Comment,
supra, at 1454,
Malley moved the Court's immunity jurisprudence much closer
to the results the common law would have achieved.
135
But no analytical approach based upon "functional analysis" can
faithfully replicate the common law, as is demonstrated in the
Court's opinion today. By describing the subset of actors in the
criminal process who are subject to suit as "complaining
witnesses," the Court implies that testifying is the
critical event. But a "complaining witness" could be sued for
malicious prosecution whether or not he ever provided factual
testimony, so long as he had a role in initiating or procuring the
prosecution; in that sense, the "witness" in "complaining witness"
is misleading. As applied to the police officers in
Malley,
that confusion was more or less harmless. Here, however,
Imbler and
Malley collide to produce a rule that
stands the common law on its head: Kalina is absolutely immune from
any suit challenging her decision to prosecute or seek an arrest
warrant, but can be sued if she changes "functional categories" by
providing personal testimony to the Court.
Imbler's principle of absolute prosecutorial immunity,
and the "functional categories" approach to immunity questions
imposed by cases like
Briscoe, make faithful adherence to
the common law embodied in § 1983 very difficult. But both
Imbler and the "functional" approach are so deeply embedded
in our § 1983 jurisprudence that, for reasons of
stare
decisis, I would not abandon them now. Given those concessions,
Malley's distortion of the term "complaining witness" may
take us as close to the right answer as we are likely to get.
Because Kalina's conduct clearly places her in that functional
category, I agree with the Court that she is not entitled to
absolute immunity under our precedents.
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