holding that different incidents were too related to give rise to separate claims for purposes of Rule 54(b)
How later courts described this case
- holding that different incidents were too related to give rise to separate claims for purposes of Rule 54(b)
- cautioning that there are limits to the district court’s discretion to define a separate claim because jurisdiction is a question of power
- also stating that "district judges may not reflexively enter Rule 54(b) judgments just because the parties want to appeal"
- expert witnesses entitled to absolute immunity for pretrial activities, including evaluating a “bootprint, writing reports, discussing the case with prosecutors, and preparing to testify”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Nationsbank of North Carolina, N. A. v. Variable Annuity Life Insurance, 513 U.S. 251 (1995)
919 F.2d 1230 (7th Cir. 1990), overruled on other grounds by 513 U.S. at 269
The opinion
FAIRCHILD, Senior Circuit Judge,
dissenting in part and concurring in part:
For the most part, I concur. I, however, have a different view concerning the immunity of prosecutor Fitzsimmons for his alleged creation of prejudicial pretrial publicity. With great respect, I think that Part III, B of the opinion fails to examine the nature of the particular function Fitzsim-mons was performing so as to determine whether it presented the public interest needs which justify absolute immunity.
The majority says, “If the injury flows from the initiation or prosecution of the case, then the prosecutor is immune and the defendant must look to the court in which the case pends to protect his interests.” This “demarcation” is applied to Mr. Fitzsimmons’s press conference state *1246 ments which are alleged to militate against a fair trial.
The majority leans on the fact that as defendant, Buckley may have been able to protect himself by procedures afforded in the criminal case itself. With all respect, absolute immunity should be recognized only when the purpose of such immunity is served.
In Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976), the Supreme Court decided to afford the same absolute immunity under section 1983 that the prosecutor enjoys at common law. Id. at 427 , 96 S.Ct. at 993 . The considerations underlying such immunity include “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id. at 423 , 96 S.Ct. at 991 . The Court agreed that the prosecutor’s activities under consideration “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.” The Court did not consider whether “like or similar reasons 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 an advocate.” Id. at 430-31 , 96 S.Ct. at 995 (footnotes omitted).
In the Supreme Court’s most recent absolute immunity case, Forrester v. White, 484 U.S. 219, 227 , 108 S.Ct. 538, 544 , 98 L.Ed.2d 555 (1988), the Court considered the scope of judicial immunity and decided that demoting or discharging a probation officer was not a function which entitles a judge to immunity. The Court explained its functional approach saying, “[W]e examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public poli-cy_” Id. at 224 , 108 S.Ct. at 542 . The Court did note that court procedures provide safeguards, id. at 227 , 108 S.Ct. at 544 , but it did not present the safeguards as a reason for conferring immunity.
Even in Butz v. Economou, 438 U.S. 478, 511-512 , 98 S.Ct. 2894, 2913 , 57 L.Ed.2d 895 (1978), a case in which the Court extensively discussed judicial procedure as a safeguard, the Court examined the adequacy of the protections only after it determined that the administrative judges and prosecutors whose immunity was at stake were performing the functions that entitle judges and prosecutors in the judicial branch to absolute immunity.
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.
Prejudicial pretrial publicity may make it more difficult and more expensive for a defendant to protect the fairness of his trial, and I would recognize that as a constitutional wrong for which damages can be obtained where the prosecutor has acted wrongfully at a stage, such as a press conference, where the purposes to be served by immunity do not apply.
Whether Buckley has sufficiently pled or could prove that Fitzsimmons’s statements at the press conference deprived him of constitutional rights seems to me to pertain to the merits, which have not yet been reached.
I would affirm the district court’s denial of absolute immunity for Fitzsimmons with respect to his press conference statements.