# Earl Charles v. F. W. Wade, Leo B. Ryan and City of Savannah, Georgia

> Court of Appeals for the Fifth Circuit · January 11, 1982 · 665 F.2d 661

URL: https://www.frixlaw.com/law-library/cases/9468665

## Case

- **Full name:** Earl CHARLES, Plaintiff-Appellant, v. F. W. WADE, Leo B. Ryan and City of Savannah, Georgia, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 11, 1982
- **Citations:** 665 F.2d 661; 33 Fed. R. Serv. 2d 276; 1982 U.S. App. LEXIS 22703
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kravitch
- **Judges:** Kravitch, Morgan, Roney, Krav-Itch
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468665

## How later opinions describe it (automated extraction)

- holding that the district court had erred in denying a party leave to depose an unavailable witness — an inmate confined to prison — because the discovery-cutoff date had passed and noting that there was a practical distinction between trial depositions and discovery depositions
- holding that a federal district court abused its discretion by denying, on the basis that discovery was closed, a party’s request to depose an incarcerated witness for the purpose of preserving that witnesses’s testimony for trial
- holding it was an abuse of discretion for the trial court to refuse to permit a deposition for trial testimony because the discovery period had closed

## Opinion text

KRAVITCH, Circuit Judge,
concurring in part, dissenting in part:
I concur in Parts I, II, IV, and V of the majority opinion. I respectfully dissent, however, from Part III, which holds that in a § 1983 action, a police officer is absolutely immune from liability for testimony given as a witness in the course of his official duties. Instead, I would clothe police officers who testify within the scope of their duties with the good-faith, qualified immunity that they possess for their other official acts.
42 U.S.C. § 1983 provides that every person who acts under color of state law to *668 deprive another of a federal right shall be liable to the injured person in an action at law, suit in equity, or other proper proceeding for redress. The language of § 1983 is silent with respect to immunities. It has been held, however, that Congress did not intend to eliminate all common law immunities when it enacted § 1983. E. g., Wood v. Strickland, 420 U.S. 308, 317 , 95 S.Ct. 992, 998 , 43 L.Ed.2d 214 (1975); Imbler v. Pacht-man, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976); Clanton v. Orleans Parish School Bd., 649 F.2d 1084 , 1101 n.20 (5th Cir. 1981). Yet because the extension of absolute immunity from § 1983 liability to state officials negates “pro tanto the very remedy it appears Congress sought to create, . . . the [Supreme] Court has not extended absolute immunity to such officials in the absence of the most convincing showing that the immunity is necessary.” Im-bler v. Pachtman, supra, 424 U.S. at 434, 96 S.Ct. at 996 — 97 (White, J., concurring). The Court has granted absolute immunity to state legislators, Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), judges, Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), and prosecutors, Imbler v. Pachtman, supra, in order “to protect the decision-making process in which [the officials] are engaged.” Id. at 435 , 96 S.Ct. at 997 .
The Supreme Court has refused, however, to clothe other state officials with absolute immunity, even though their duties require the exercise of much discretion and, in some circumstances, they would have been absolutely immune from liability at common law. See Imbler v. Pachtman, supra at 434, 96 S.Ct. at 996-97 . Instead, the Court has extended only a good-faith, qualified immunity to school board members, Wood v. Strickland, supra, state executive officials, Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), prison officials, Procunier v. Navarette, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 (1978), and police officers, Pierson v. Ray, supra. The rationale for according these state officials with immunity when they act in good faith and with a reasonable belief that their actions are lawful is to minimize the prospect that the threat of liability will deter such officials from exercising their discretion and performing their official duties, Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980), without totally undermining the purpose of § 1983, which is to provide a remedy to persons deprived of their federal rights by the abuse of official power.
Police officers have been accorded good-faith, qualified immunity from § 1983 liability for actions undertaken within the scope of their duties. See, e. g., Pierson v. Ray, supra (§ 1983 suit arising from false arrest and imprisonment); Barker v. Norman, 651 F.2d 1107 (5th Cir. 1981) (§ 1983 action based on illegal search, seizure, and retention of property); Vasquez v. Snow, 616 F.2d 217 (5th Cir. 1980) (§ 1983 suit premised on illegal search). So long as a police officer performs his duties in good faith and with a reasonable belief that his actions are lawful, Barker v. Norman, supra, he is immune from § 1983 liability whether the alleged deprivation arises during the course of an investigation, Vasquez v. Snow, supra, arrest, Pierson v. Ray, supra, or imprisonment, id. Such an immunity should also extend to a police officer who testifies within the scope of his duties. The discretion a police officer exercises in testifying as a witness is certainly no greater than that which he exercises in making an arrest or conducting a search. In fact, it is much less. “[A] witness, at least in theory, exercises no discretion in the performance of his duty to answer fully and truthfully all questions put to him, unless the requested information would be self-incriminating or would violate some other evidentiary privilege.” Briscoe v. LaHue, 663 F.2d 713, 719 (7th Cir. 1981). Moreover, the adverse impact on the criminal justice system is no greater where the threat of liability inhibits a police officer from fully testifying than where it chills, for example, a police officer’s investigative activities or propensity to arrest a suspect. Thus, in my judgment, police officers should not be afforded a greater immunity from liability when they testify at trial than when they engage in their other duties; they should be immune *669 from § 1983 liability only if they testify in good faith and with a reasonable belief in the truthfulness of their testimony.
At common law, witnesses are afforded absolute immunity in order to free them from the prospect of civil liability, which may dissuade them from coming forward or from fully and freely testifying. The majority concludes that police officers are entitled to absolute immunity from § 1983 liability because the policies underlying absolute witness immunity at common law likewise countenance absolute immunity from § 1983 liability. In so reasoning, the majority has overlooked critical differences between public officials and other witnesses. Public officials, “who in any event face the possibility of liability for most of their official acts, who may be obligated to testify as an aspect of their official duties, and who are normally represented by government counsel in § 1983 actions,” Briscoe v. LaHue, supra, are likely to be less intimidated than private citizens by the threat of a § 1983 action. Thus, the policy considerations that countenance absolute immunity for lay witnesses at common law do not apply with equal force in the context of a § 1983 action against a police official who testifies within the scope of his duties. Briggs v. Goodwin, 569 F.2d 10, 18 (D.C.Cir. 1977), cert. denied, 437 U.S. 904 , 98 S.Ct. 3089 , 57 L.Ed.2d 1133 (1978); Burke v. Miller, 580 F.2d 108, 112 (4th Cir. 1978) (Winter, J., concurring). See Hilliard v. Williams, 516 F.2d 1344, 1349 (6th Cir. 1975), vacated on other grounds, 424 U.S. 961 , 96 S.Ct. 1453 , 47 L.Ed.2d 729 (1976), affirmed after remand, 540 F.2d 220 (6th Cir. 1976) (police officer liable under § 1983 for falsely testifying in a criminal trial).
One may argue that if we deny public officials absolute witness immunity from § 1983 liability, then we likewise must deny private citizens absolute witness immunity. See Briscoe v. LaHue, supra. Such is not the case. Private parties possess absolute witness immunity from § 1983 liability because the policies underlying common law witness immunity equally justify absolute immunity for private parties in the § 1983 context. Moreover, according different degrees of immunity to parties subject to § 1983 liability is nothing new. For example, in the nonwitness context public officials acting within the scope of their duties possess either an absolute or qualified immunity from § 1983 liability, while private parties who have conspired with the same officials to interfere with an individual’s federal rights generally possess no immunity at all. See Dennis v. Sparks, 449 U.S. 24 , 101 S.Ct. 183 , 66 L.Ed.2d 185 (1980).
For the reasons given, I agree with the District of Columbia and Sixth Circuits and would hold that a public official, here a police officer, who testifies at trial within the scope of his duties possesses only a good-faith, qualified immunity from § 1983 liability.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468665. Public record. Not legal advice.