Joseph v. Patterson

DAVID A. NELSON, Circuit Judge,

concurring in part and dissenting in part.

Although I agree with much of what the court says, I must dissent from some of it.

I agree that the prosecutors are entitled to absolute immunity from liability for obtaining the issuance of criminal complaints and arrest warrants against Lawrence and *561 Frank Joseph, and I therefore concur in Part III B of the court’s opinion. I also agree with sections D, E and F of Part III.

As Part III C of the opinion indicates, the warrant for the search of Lawrence Joseph’s store was obtained in the same court appearance in which the criminal complaints and arrest warrants were signed. The plaintiffs so allege in their complaint, and they also say that the search warrant was sworn to not by any of the Oakland County defendants, but by a police officer named David Schultz. (Officer Schultz was in the employ of the City of Birmingham, and he has been dismissed from this case along with the other City of Birmingham defendants.) If any prosecutor was peripherally involved in obtaining the search warrant, I see no basis for distinguishing his conduct from the obtaining of the arrest warrants, which Part III B of the court’s opinion holds is protected, without further inquiry, by absolute immunity. I note, in this connection, that plaintiffs’ own counsel conceded, before the trial court, that “it is true that perhaps the mere act of seeking of the arrest warrants and the search warrant could fall within the narrow quasi-judicial function [protected by absolute immunity]____” (Emphasis supplied.) I see no need for any further factual inquiry regarding issuance of the search warrant, and to the extent the court holds such inquiry necessary, I respectfully dissent. I agree with the court, however, that if a prosecutor participated with the Birmingham police in conducting a search that went beyond the authorization contained in the warrant, the prosecutor’s immunity, if any, would be qualified and not absolute.

As to Part III A, where the court considers whether the interrogation of Hal Morrow was an insulated activity, it may be useful to review the precise allegations of the plaintiffs’ complaint. The complaint says:

“In the early morning hours of March 14, 1980, George Joseph, younger brother of Plaintiffs herein, was engaged in a confrontation and automobile chase with Defendant Morrow over a dispute in attempt to collect monies owed by Defendant Morrow to a mutual friend. Thereafter, Defendant Morrow lodged a Complaint with Defendant Shultz [sic] of the Defendant City of Birmingham Police Department against George Joseph and certain of his friends and associates, alleging felonious assault and extortion.”

The complaint goes on to say that Plaintiff Lawrence Joseph “and others” then met with Mr. Morrow, paid him $800.00, and obtained a document releasing George Joseph from civil liability. Thereafter, the complaint alleges,

“Defendant David Schultz at the direction of others unknown to Plaintiffs and both City of Birmingham Police Department and Oakland County Prosecutor’s Office caused Defendant Morrow to be arrested, transferred, interrogated, threatened, coerced and intimidated into filing criminal charges and complaints against Plaintiffs, Lawrence Joseph and Frank Joseph, for ‘obstructing justice’ and ‘compounding a felony’, both being felony offenses. Defendants Thompson, A’Hearn and Schultz specifically took part in this process. These actions were taken in bad faith, maliciously, illegally and with knowledge of the wrongfulness thereof.”

The interrogation of the unfortunate Mr. Morrow (who, it is stipulated, was never served and is not a party to this action) took place after the alleged assault and extortion by George Joseph, and after the meeting at which Mr. Morrow accepted the plaintiffs’ $800.00, but before the court appearance in which the obstruction of justice complaints were signed and the warrants were issued against Lawrence and Frank Joseph. All of these events, as plaintiffs’ counsel told the trial court, occurred on the same day — March 14,1980. From a temporal standpoint, at least, there can be absolutely no doubt that what occurred at Morrow’s meeting with Lawrence Joseph and others earlier in the day was intimately associated with the questioning of Morrow about the meeting and with the initiation of the obstruction of justice case against Law *562 rence and Frank Joseph later that same day.

The older Josephs filed the instant lawsuit on August 2, 1982, and Oakland County defendants filed an answer to plaintiffs’ complaint on September 23, 1982. We do not have the benefit of the extensive deposition testimony apparently elicited after the case was at issue, but it is instructive, I think, to see how plaintiffs’ claims are characterized in the joint pretrial statement that the parties themselves filed with the trial court on November 15, 1983. After listing a series of claims that were being abandoned, the pretrial statement says:

“[T]he [remaining] claims of the Plaintiffs might be succinctly stated as follows: * * * [Statement of claims against City of Birmingham Defendants omitted] * * * Further, Plaintiffs claim that the Birmingham Defendants, along with the Defendants associated with the Oakland County Prosecutor’s Office and the Oakland County Organized Crime Strike Force, on or about March 14, 1980, used an incident involving Plaintiff's [sic] younger brother George Joseph in order to falsely accuse the Plaintiffs herein of ‘obstruction of justice’ and ‘compounding a felony’. Having so falsely brought said charges against the Plaintiffs here in, the Defendants, and all of them, used said false charges to obtain a search warrant for ‘Market Square’ which search was conducted with intent to damage said business and to find evidence of other crimes than those that led to the issuance of said warrant. Thereafter, the Defendants, and each of them, pursued and prolonged the proceedings against the Plaintiffs in bad faith and without any hope of success for the purpose of harassing Plaintiffs, causing them expense and generating publicity calculated to put Plaintiffs in a bad light and to damage their economic enterprises and social relationships.”

Far from suggesting that the interrogation of Hal Morrow was not “intimately associated” with the initiation of the obstruction of justice case that was begun on the very day the interrogation took place— “intimate association” being a test arguably suggested by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 430 , 96 S.Ct. 984, 994 , 47 L.Ed.2d 128 (1976) — the pretrial statement never mentions the interrogation of Mr. Morrow at all.

On December 13, 1983, all but one of the Oakland County defendants moved for an order of dismissal on the ground that they were “protected by absolute or quasi-judicial immunity____” 1 If the pretrial statement adequately preserves the claim that defendants Thompson and A’Hearn helped “coerce” Morrow into making the charges that led to the institution of the obstruction of justice case against Lawrence and Frank Joseph, the question presented to the trial court by the motion to dismiss was whether, in this context, the interrogation of Morrow was to be considered part of the process of “initiating a prosecution.” That question, in my judgment, could only be answered in the affirmative.

“Clearly,” as this court says in-Part III C of its opinion, “decisions of when and how to prosecute are not made in a vacuum, so that in some cases the directing of police to secure further evidence may be necessary to and part of a decision to prosecute.” It seems to me that the interrogation of Morrow, which dealt with facts critical to the prosecution of Lawrence and Frank Joseph and which took place on the very day the prosecution was initiated, was so clearly an integral part of the initiation of the prosecution that further factfinding would be pointless.

I see nothing in Forsyth v. Kleindienst, 599 F.2d 1203 (3rd Cir.1979), that suggests *563 otherwise. The defendants in Forsyth were former Attorneys General of the United States who had been sued for authorizing, on national security grounds, warrantless wiretaps. Unlike the interrogation of Mr. Morrow, the wiretaps never resulted in the initiation of a prosecution, as far as the opinion discloses, much less the initiation of a prosecution on the very day of the investigatory conduct complained of. In fact, as we know from the subsequent opinion in Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 2810 , 86 L.Ed.2d 411 (1985), the trial court determined on remand that Attorney General Mitchell’s wiretap authorization “was not intended to facilitate any prosecutorial decision or further a criminal investigation”, and “Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes.” (Emphasis supplied.) The main significance of Forsyth for our purposes, I think, is not that the Court of Appeals found it necessary to remand for further factfinding, but that the court explicitly confirmed that absolute immunity can attach to investigative activity occurring before there is a final decision to prosecute. As the court said:

“To grant a prosecuting attorney immunity over his decision to initiate a prosecution while subjecting him to liability for securing the information necessary to make that decision would only foster uninformed decisionmaking and the potential for needless actions. We believe that the right to make the decision without being subject to suit must include some limited right to gather necessary information.” 599 F.2d at Í215. (Emphasis supplied.)

Expanding on dicta found in footnote 33 in the final paragraph of the Supreme Court opinion in Imbler v. Pachtman, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33, the Forsyth court did go on to say “we are sensitive to the possibility that this narrow exception could be distorted to include all of a prosecutor’s investigative activities.” 599 F.2d at 1215 . Accordingly, said the court, “[w]e hold only that to the extent that the securing of information is necessary to a prosecutor’s decision to initiate a criminal prosecution, it is encompassed within the protected, quasi-judicial immunity afforded to the decision itself.” Id. Applying that holding here, it follows that if the prosecutor’s interrogation of Mr. Morrow was “necessary to [the] prosecutor’s decision to initiate a criminal prosecution” against Lawrence and Frank Joseph, as I see no reason to doubt that it was, absolute immunity attaches.

Footnote 33 in Imbler suggests that “difficult questions” may be presented in determining the point at which a prosecutor’s obtaining of evidence in preparation for the initiation of criminal proceedings crosses the line beyond which the prosecutor functions as an “administrator,” thereby losing the protection of absolute (as opposed to qualified) immunity. That is obviously true, but I think we are nowhere near that point in the case at bar.

Some lower courts, as I read the cases, may have strayed away from binding Supreme Court precedent in concluding that a prosecutor engaged in functions “essentially investigative” has no absolute immunity. See, e.g., cases cited in McSurely v. McClellan, 697 F.2d 309, 318, 320 (D.C.Cir.1982). Although the Supreme Court did say, in Imbler , that it had no occasion there to consider whether reasons similar to those requiring absolute immunity for prosecutorial activities “intimately associated with the judicial phase of the criminal process” require immunity “for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate,” 424 U.S. at 430-31 , 96 S.Ct. at 994-95 , just such a question was answered affirmatively in Yaselli v. Goff, 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 (1927), a case that Imbler cites with evident approval. 424 U.S. at 422 , 96 S.Ct. at 991 .

In Yaselli v. Goff, as we learn from the opinion of the Court of Appeals reported at 12 F.2d 396 (2d Cir.1926), Mr. Yaselli had *564 filed pleadings alleging that defendant Goff, acting out of wrongful motives and pursuant to a conspiracy to prosecute Ya-selli maliciously and without cause, had prevailed upon Attorney General A. Mitchell Palmer to appoint him a special assistant to the Attorney General “to assist in the investigation and prosecution” of Mr. Yaselli for defrauding the United States in connection with the purchase of a steamship from the U.S. Shipping Board. 12 F.2d at 399 . (Emphasis supplied.) Yasel-li’s pleadings further alleged that defendant Goff conspired to obtain the appointment of a receiver for a shipping company of which Yaselli was president “and thereby obtain inspection of papers and documents upon which to base such prosecution.” 12 F.2d at 398 . The pleading alleged that defendant Goff caused the receiver wrongfully to seize personal records, knowing that they belonged to Yaselli and not the shipping company, and let defendant Goff inspect them in furtherance of the malicious prosecution. It was stipulated that after Goff accepted appointment as a special assistant he appeared before a grand jury, presented evidence, and procured an indictment on which Yaselli was tried. Yaselli’s acquittal at that trial was followed by a malicious prosecution action against Goff.

In seeking a dismissal of the complaint, Defendant Goff moved to strike the pleading in which he had been accused of conducting an improper investigation. 12 F.2d at 399 . The trial court granted the motion to strike and dismissed the complaint. Id. Yaselli appealed, and a panel consisting of Circuit Judges Rogers, Hough and Mantón concluded that the pleading had been properly stricken and the trial court’s judgment should be affirmed. 2

The Supreme Court, in a per curiam decision, affirmed the judgment of the Court of Appeals on the authority of Bradley v. Fisher, 13 Wall. 335, 347 , 20 L.Ed. 646 (1872), and Alzua v. Johnson, 231 U.S. 106, 111 , 34 S.Ct. 27, 29 , 58 L.Ed. 142 (1913).

The former opinion, delivered for the Supreme Court by Mr. Justice Field in the year following enactment of the statute now codified at 42 U.S.C. § 1983 , contains a detailed discussion of the history of the doctrine of absolute immunity and the policy reasons for concluding that judges ought not be required to defend themselves against suits charging that acts performed in their official capacity were done maliciously or corruptly. In the latter case the Supreme Court, speaking through Mr. Justice Holmes, said it was “fundamental” that the absolute immunity for judges would extend to a Justice of the Supreme Court of the Philippine Islands after those Islands were acquired by the United States. In applying the Bradley and Alzua cases to the situation in Yaselli, the Supreme Court necessarily held that Prosecutor Goff was entitled to the same kind of absolute immunity that applies to the official acts of judges — and that such immunity covered the conduct complained of in the stricken pleadings, including the securing of the appointment to prosecute Mr. Yaselli and the obtaining of Mr. Yaselli’s personal papers and documents through improper means.

In Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), Chief Judge Learned Hand— whose tenure on the Court of Appeals outlasted that of Judge Mantón, his sometime colleague — dealt with a situation where the trial court, like the trial court here, had dismissed the plaintiff’s complaint under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. The defendants in that case included two Attorneys General of the United States who *565 were accused of having maliciously kept the plaintiff in custody for some years on the pretense that he was an enemy alien, when in fact he was not. The trial judge “held that the defendants had an absolute immunity from liability, even though their unlawful acts had been induced only by personal ill-will____” 177 F.2d at 579 . Acknowledging that it seemed “at first blush a startling proposition” that the complaint should not be permitted to stand even if read as specifically alleging that the defendants “had acted altogether from personal spite and had been fully aware that they had no legal warrant for arresting .or deporting the plaintiff,” Judge Hand, writing for himself and Judges Swan and Clark, said not only that this conclusion “necessarily follows from the decision of the Supreme Court in Yaselli v. Goff,” 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 , “but that as a new question, the result is desirable.” 177 F.2d at 580 .

In a passage evincing the strength of mind and felicity of expression that contributed to Judge Hand’s reputation as one of our better jurists, the opinion went on to say:

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent a well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.” 177 F.2d at 581 .

Judged as res nova, I might not consider it unfair to hold that the immunity of a prosecutor in respect of his official acts should be conditional only, and not absolute. Judged as res nova, I might see no unfairness in remanding the case at bar for a factual determination of how “intimately associated” the interrogation of Mr. Morrow was with the decision to prosecute Lawrence and Frank Joseph. Because I do not believe that this is the path laid down by the Supreme Court, however, and because I think it is a foregone conclusion what the result of such a factual inquiry will be, I must respectfully dissent from Part III A of the court’s opinion in the case at bar.

With respect to Part IV of the court’s opinion, which deals with the two non-lawyer employees of a division of the Oakland County Prosecutor’s Office called the “Criminal Investigation Division and Organized Crime Strike Force,” I note that Mr. Leon, the assistant investigator, is not alleged to have participated in the interrogation of Mr. Morrow. Because it is claimed that he participated in the allegedly improper search of the Lawrence Joseph’s store, however, and because Mr. Leon did not join in the motion to dismiss filed by the other Oakland County defendants, I agree that the district court acted prematurely in dismissing the case as to Mr. Leon.

Mr. A’Hearn, the Chief of the Criminal Investigation Division and Organized Crime Strike Force, is claimed to have taken part, with Police Officer David Schultz *566 and Chief Assistant Prosecutor Richard Thompson, in the interrogation and alleged coercion of Mr. Morrow. I agree with the court that Mr. A’Hearn would be entitled only to qualified immunity, in respect of these activities, unless he was acting pursuant to the express direction and control of a prosecutor. The presence of Chief Assistant Prosecutor Thompson suggests to me that Mr. A’Hearn almost certainly was acting pursuant to such express direction and control, but I have no difficulty with letting this assumption be confirmed on remand as long as there must be further proceedings as to Mr. A’Hearn in any event — and I agree with the court that such proceedings are required in order to clarify the role played by Mr. A’Hearn in the conduct of the search of Mr. Lawrence Joseph’s store. I also agree that the judgment of dismissal must be reversed as to the three prosecutors because they had only qualified immunity in dealing with or sitting on the Concealed Weapons Licensing Board and in opposing expunction of the plaintiffs’ police records.

To the extent that the court’s judgment authorizes further proceedings beyond the scope I have suggested is proper, I respectfully dissent. In all other respects, I concur in the judgment.

. The motion purports to have been brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, but an answer to the complaint had been filed more than a year earlier. Technically, a Rule 12(b)(6) motion is untimely after the case is at issue and no further pleading is permitted. Wright & Miller, Federal Practice and Procedure: Civil § 1357. The plaintiffs have made no issue of this, and it seems appropriate to treat the defendants' motion as a motion for judgment on the pleadings.

. While Judge Mantón did not write the opinion of the Court of Appeals, his presence on the panel reminds us that judges are no more immune from the temptation to abuse their powers than prosecutors are. The subsequent fate of Judge Mantón, however, reminds us that judicial immunity from civil liability "does not leave the public powerless to deter [judicial] misconduct or to punish that which occurs.” Imbler, 424 U.S. at 429 , 96 S.Ct. at 994 . Noting that "[e]ven judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivatiohs of constitutional rights,” the Imbler court noted that “[t]he prosecutor would fare no better for his willful acts.” Id.