The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_7849/91_7849.zx

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SUPREME COURT OF THE UNITED STATES
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No. 91-7849
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STEPHEN BUCKLEY, PETITIONER v. MICHAEL
FITZSIMMONS et al.
on writ of certiorari to the united states court
of appeals for the seventh circuit
[June 24, 1993]

  Justice Kennedy, with whom The Chief Justice,
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 prac-
tice and have resulted in a functional approach.  Ante, at
9.  See also Burns v. Reed, 500 U. S. ___, ___ (1991) (slip
op., at 6); Forrester v. White, 484 U. S. 219, 224 (1988);
Malley v. Briggs, 475 U. S. 335, 342-343 (1986); Cleav-
inger v. Saxner, 474 U. S. 193, 201 (1985); Briscoe v.
LaHue, 460 U. S. 325, 342 (1983); Harlow v. Fitzgerald,
457 U. S. 800, 810 (1982); Butz v. Economou, 438 U. S.
478, 511-513 (1978); Imbler v. Pachtman, 424 U. S. 409,
420-425 (1976).  I share the Court's unwillingness to
accept Buckley's argument -that Imbler's protection for a
prosecutor's conduct `in initiating a prosecution and in
presenting the State's case,' 424 U. S., at 431, extends
only to the act of initiation itself and to conduct occurring
in the courtroom.-  Ante, at 13.  In Imbler, we acknow-
ledged that -the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the
initiation of a prosecution and actions apart from the
courtroom,- and we explained that these actions of the
prosecutor, undertaken in his functional role as an
advocate, were entitled to absolute immunity, 424 U. S.,
at 431, n. 33.  See ante, at 13.
  There is a reason even more fundamental than that
stated by the Court for rejecting Buckley's argument that
Imbler applies only to the commencement of a prosecution
and to in-court conduct.  This formulation of absolute
prosecutorial immunity would convert what is now a
substantial degree of protection for prosecutors into little
more than a pleading rule.  Almost all decisions to initiate
prosecution are preceded by substantial and necessary out-
of-court conduct by the prosecutor in evaluating the
evidence and preparing for its introduction, just as almost
every action taken in the courtroom requires some
measure of out-of-court preparation.  Were preparatory
actions unprotected by absolute immunity, a criminal
defendant turned civil plaintiff could simply reframe a
claim to attack the preparation instead of the absolutely
immune actions themselves.  Imbler v. Pachtman, supra,
at 431, n. 34.  Cf. Eastland v. United States Servicemen's
Fund, 421 U. S. 491, 503-507 (1975).  Allowing the
avoidance of absolute immunity through that pleading
mechanism would undermine in large part the protections
that we found necessary in Imbler and would discourage
trial preparation by prosecutors.  In this way, Buckley's
proffered standard would have the perverse effect of
encouraging, rather than penalizing, carelessness, cf.
Forrester v. White, supra, at 223, and it would discourage
early participation by prosecutors in the criminal justice
process.
  Applying these principles to the case before us, I believe
that the conduct relating to the expert witnesses falls on
the absolute immunity side of the divide.  As we recog-
nized in Imbler and Burns, and do recognize again today,
the functional approach does not dictate that all actions
of a prosecutor are accorded absolute immunity.  -When
a prosecutor performs the investigative functions normally
performed by a detective or police officer, it is `neither
appropriate nor justifiable that, for the same act,
immunity should protect the one and not the other.'-
Ante, at 14, quoting Hampton v. Chicago, 484 F. 2d 602,
608 (CA7 1973), cert. denied, 415 U. S. 917 (1974).
Nonetheless, while Buckley labels the prosecutors' actions
relating to the bootprint experts as -investigative,- I
believe it is more accurate to describe the prosecutors'
conduct as preparation for trial.  A prosecutor must
consult with a potential trial witness before he places the
witness on the stand, and if the witness is a critical one,
consultation may be necessary even before the decision
whether to indict.  It was obvious from the outset that the
bootprint was critical to the prosecution's case, and the
prosecutors' consultation with experts is best viewed as a
step to ensure the bootprint's admission in evidence and
to bolster its probative value in the eyes of the jury.
  Just as Imbler requires that the decision to use a
witness must be insulated from liability, 424 U. S., at
426, it requires as well that the steps leading to that deci-
sion 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, 484
U. S., at 223.  Moreover, -[e]xposing the prosecutor to
liability for the initial phase of his prosecutorial work
could interfere with his exercise of independent judgment
at every phase of his work, since the prosecutor might
come to see later decisions in terms of their effect on his
potential liability.-  Malley v. Briggs, 475 U. S., at 343.
That distortion would frustrate the objective of accuracy
in the determination of guilt or innocence.  See Imbler v.
Pachtman, supra, at 426.
  Furthermore, the very matter the prosecutors were
considering, the decision to use particular expert testimo-
ny, was -subjected to the `crucible of the judicial process.'-
Burns v. Reed, 500 U. S., at ___ (slip op., at 16), quoting
Imbler v. Pachtman, supra, at 440 (White, J., concurring
in judgment).  Indeed, it appears that the only constitu-
tional violations these actions are alleged to have caused
occurred within the judicial process.  The question Buckley
presented in his petition for certiorari itself makes this
point: -Whether prosecutors are entitled to absolute
prosecutorial immunity for supervision of and participation
in a year long pre-arrest and pre-indictment investigation
because the injury suffered by the criminal defendant
occurred during the later criminal proceedings?-  Pet. for
Cert. i.  Remedies other than prosecutorial liability, for
example, a pretrial ruling of inadmissibility or a rejection
by the trier of fact, are more than adequate -to prevent
abuses of authority by prosecutors.-  Burns v. Reed, supra,
at  ___ (slip op., at 15-16).  See also Butz v. Economou,
438 U. S., at 512; Imbler v. Pachtman, supra, at 429.
  Our holding in Burns v. Reed, supra, is not to the
contrary.  There we cautioned that prosecutors were not
entitled to absolute immunity for -every litigation-inducing
conduct,- id., at ___ (slip op., at 14), or for every action
that -could be said to be in some way related to the
ultimate decision whether to prosecute,- id., at ___ (slip
op., at 15).  The premise of Burns was that, in providing
advice to the police, the prosecutor acted to guide the
police, not to prepare his own case.  See id., at ___ (slip
op., at 1-2) (noting that the police officers sought the
prosecutor's advice first to find out whether hypnosis was
-an unacceptable investigative technique- and later to
determine whether there was a basis to -plac[e] [a sus-
pect] 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 prepa-
ration 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 15.  To allow otherwise, the Court tells us, would
create an anomalous situation whereby prosecutors are
granted only qualified immunity when offering legal advice
to the police regarding an unarrested suspect, see Burns,
supra, at ___ (slip op., at 16), but are endowed with
absolute immunity when conducting their own legal work
regarding an unarrested suspect.  Ante, at 16.
  I suggest that it is the Court's probable-cause demarca-
tion between when conduct can be considered absolutely
immune advocacy and when it cannot that creates the
true anomaly in this case.  We were quite clear in Imbler
that if absolute immunity for prosecutors meant anything,
it meant that prosecutors were not subject to suit for
malicious prosecution.  424 U. S., at 421-422, 424, 428.
See also Burns, supra, at ___ (slip op., at 13) (-[T]he
common-law immunity from malicious prosecution . . .
formed the basis for the decision in Imbler-).  Yet the
central component of a malicious prosecution claim is that
the prosecutor in question acted maliciously and without
probable cause.  See Wyatt v. Cole, 504 U. S. ___, ___
(1992); id., at ___ (Kennedy, J., concurring); id., at ___
(Rehnquist, C. J., dissenting); W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Torts 119
(5th ed. 1984).  If the Court means to withhold absolute
immunity whenever it is alleged that the injurious actions
of a prosecutor occurred before he had probable cause to
believe a specified individual committed a crime, then no
longer is a claim for malicious prosecution subject to ready
dismissal on absolute immunity grounds, at least where
the claimant is clever enough to include some actions
taken by the prosecutor prior to the initiation of prosecu-
tion.  I find it rather strange that the classic case for the
invocation of absolute immunity falls on the unprotected
side of the Court's new dividing line.  I also find it hard
to accept any line that can be so easily manipulated by
criminal defendants turned civil plaintiffs, allowing them
to avoid a dismissal on absolute immunity grounds by
throwing in an allegation that a prosecutor acted without
probable cause.  See supra, at 2.
  Perhaps the Court means to draw its line at the point
where an appropriate neutral third party, in this case the
Illinois special grand jury, makes a determination 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 emo-
tional 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 determi-
nation 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 deter-
mination of probable cause, as was alleged here, it is
difficult to fathom why securing such a fraudulent
determination transmogrifies unprotected conduct into
protected conduct.  Finally, the Court does not question
our conclusion in Burns that absolute immunity attached
to a prosecutor's conduct before a grand jury because it
-`perform[s] a judicial function.'-  500 U. S., at ___ (slip
op., at 10), quoting W. Prosser, Law of Torts 94, pp.
826-827 (1941)).  See also Yaselli v. Goff, 12 F. 2d 396
(CA2 1926), aff'd, 275 U. S. 503 (1927).  It is unclear to
me, then, why preparing for grand jury proceedings, which
obviously occur before an indictment is handed down,
cannot be -intimately associated with the judicial phase
of the criminal process- and subject to absolute immunity.
Burns, supra, at ___ (slip op., at 11), quoting Imbler,
supra, at 430.
  As troubling as is the line drawn by the Court, I find
the reasons for its line-drawing to be of equal concern.
The Court advances two reasons for distinguishing
between pre-probable-cause and post-probable-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 16.  Second, absent some clear distinction between
investigation and advocacy, the Court fears, -every pro-
secutor might . . . shield himself from liability for any
constitutional wrong against innocent citizens by ensuring
that they go to trial.-  Ante, at 17.  This step, it is
alleged, would enable any prosecutor to -retrospectively
describ[e]- his investigative work -as `preparation' for a
possible trial- and therefore request the benefits of
absolute immunity.  Ibid.  I find neither of these
justifications persuasive.
  The Court's first concern, I take it, is meant to be a
restatement of one of the unquestioned goals of our 1983
immunity jurisprudence: ensuring parity in treatment
among state actors engaged in identical functions.  Forres-
ter v. White, 484 U. S., at 229; Cleavinger v. Saxner, 474
U. S., at 201.  But it was for the precise reason of
advancing this goal that we adopted the functional
approach to absolute immunity in the first place, and I
do not see a need to augment that approach by developing
bright-line rules in cases where determining whether
different actors are engaged in identical functions involves
careful attention to subtle details.  The Court, moreover,
perceives a danger of disparate treatment because it
assumes that before establishing probable cause, police
and prosecutors perform the same functions.  Ante, at 16.
This assumption seem to me unwarranted.  I do not
understand the art of advocacy to have an inherent
temporal limitation, so I cannot say that prosecutors are
never functioning as advocates before the determination
of probable cause.  More to the point, the Court's
assumption further presumes that when both prosecutors
and police officers engage in the same conduct, they are
of necessity engaged in the same function.  With this I
must disagree.  Two actors can take part in 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, The Prosecutor 32
(summer 1989).
  Advancing to the second reason provided for the Court's
line-drawing, I think the Court overstates the danger of
allowing pre-probable-cause conduct to constitute advocacy
entitled to absolute immunity.  I agree with the Court
that the institution of a prosecution -does not retroactively
transform . . . work from the administrative into the
prosecutorial,- ante, at 16, but declining to institute a
prosecution likewise should not -retroactively transform-
work from the prosecutorial into the administrative.  Cf.
Imbler, 424 U. S., at 431, n. 33 (-We recognize that the
duties of the prosecutor in his role as advocate for the
State involve actions preliminary to the initiation of a
prosecution . . . .  These include questions of whether to
present a case to the grand jury, whether to file an
information, [and] whether and when to prosecute-).  In
either case, the primary question, one which I have confi-
dence 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, prepar-
ing for prosecution before investigators are alleged to have
amassed probable cause and before an indictment was
deemed appropriate.  In my judgment respondents are
entitled to absolute immunity for their involvement with
the expert witnesses in this case.  With respect, I dissent
from that part of the Court's decision reversing the Court
of Appeals judgment of absolute immunity for respondents'
conduct in relation to the bootprint evidence.