Jane Doe v. Francis D. Phillips, Ii, Gerald D. D'amelia, Jr.

JACOBS, Circuit Judge,

concurring in part, dissenting in part:

I concur in the majority’s discussion of qualified immunity in Part II.B of the opinion, but I respectfully dissent from the majority’s decision in Part II.A to deny absolute immunity.

I agree with the majority that, in determining whether a prosecutor is entitled to absolute immunity, we must take a “functional approach” that examines whether the prosecutor’s actions were “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 , 96 S.Ct. 984, 995 , 47 L.Ed.2d 128 (1976). Commencing a prosecution is one such prose-cutorial function, id. at 424-25 , 96 S.Ct. at 992-93 , and, “as a matter of logic, absolute immunity must also protect the prosecutor from damages suits based on his decision not to prosecute.” Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir.1989). I recognize that absolute immunity does not extend to a prosecutor who, as a condition of dismissing charges, makes a demand on the defendant that “is foreign to the prosecutor’s office.” Id. at 292 . The majority holds that the condition imposed here by D’Amelia — that Doe swear her innocence on a Bible in a church — is unprotected under the governing standards because it was “manifestly or palpably beyond his authority,” Spalding v. Vilas, 161 U.S. 483, 498 , 16 S.Ct. 631, 637 , 40 L.Ed. 780 (1896), or performed in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 357 , 98 S.Ct. 1099, 1105 , 55 L.Ed.2d 331 (1978) (internal quotation marks and citation omitted). I dissent from that holding because D’Amelia’s demand (i) was intertwined -with a prosecutorial decision (to prosecute or not) and (ii) entailed an act (the eliciting of a statement under oath on the subject of the prosecution) that was within D’Amelia’s role and jurisdiction as a prosecutor. This is demonstrably sufficient to insulate D’Amelia from civil liability under the authorities that apply the doctrine of absolute immunity.

Whether a prosecutor’s act is “foreign to the prosecutor’s office” does not depend on the reprehensible, unethical or inappropriate elements of that act — even if that act allegedly violates the plaintiffs constitutional rights. Rather, “absolute immunity extends to those acts, whether in or out of the courtroom, ‘which occur in the course of [the prosecutors’s] role as an advocate for the State.’ ” *1213 Pinaud v. County of Suffolk, 52 F.3d 1139 , 1148 (2d Cir.1995) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 , 113 S.Ct. 2606, 2615 , 125 L.Ed.2d 209 (1993)). A prosecutor’s wrongful act, such as participating in a conspiracy to manufacture evidence, “is certainly not something that is properly within the role of a prosecutor,” but that “is immaterial, because [the] immunity attaches to his function, not to the manner in which he performed it.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994) (internal quotation marks and citation omitted). The absolute character of absolute immunity is that it “protects a prosecutor from § 1983 liability for virtually all acts, regardless of motivation, associated with his function as an advocate.” Dory, 25 F.3d at 83 . In short, absolute immunity insulates prosecutorial misconduct — however outrageous — so long as the misconduct is prosecutorial.

We have taken the functional approach to the issue of immunity in various contexts. In Dory , a prosecutor who allegedly participated in a conspiracy to present false evidence at trial was held to be absolutely immune, 25 F.3d at 83 , because the “professional evaluation of the evidence ... and appropriate preparation for its presentation attrial” are prosecutorial acts. Buckley, 509 U.S. at 271 , 113 S.Ct. at 2615 . See also Brodnicki v. City of Omaha, 75 F.3d 1261, 1267 (8th Cir.1996) (prosecutor who allegedly violated plaintiffs right to due process by examining evidence prior to trial and discussing charges with defense counsel was entitled to absolute immunity). Similarly, in Pinaud we granted absolute immunity to prosecutors who allegedly violated the plaintiffs rights under the Fourth, Fifth, Sixth and Eighth Amendments by: seeking improperly to increase the plaintiffs bail; making false representations to prompt a plea agreement, and then breaching that agreement; manufacturing a bail jumping charge; making misrepresentations to the Bureau of Prisons; and unnecessarily transferring the plaintiff from county to state jail. 52 F.3d at 1149. All of these alleged acts, while unethical, deviant, and violative of the plaintiffs’ constitutional rights, were “components of the initiation and presentation of a prosecution, and therefore ... protected by absolute immunity.” Id.

Courts allow absolute immunity even where the prosecutor allows the decision to prosecute to depend on conduct by the defendant that is, strictly speaking, not the prosecutor’s business. In Schloss , the decision to forgo prosecution was made to depend upon the putative defendants’ release from liability of the municipalities and police officers who allegedly arrested and detained them in violation of their constitutional rights. 876 F.2d at 289 . We held that the prosecutor was entitled to absolute immunity because the demand on which the decision to prosecute depended was in the nature of a plea bargain, and plea bargains are not foreign to the office of a prosecutor. Id. at 291 . See also Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir.1981) (“a prosecutor’s activities in the plea bargaining context merit the protection of absolute immunity”). Other circuits have granted absolute immunity to prosecutors in similar cases. See Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir.) (prosecutor allegedly violated plaintiffs First, Fourth and Fifth Amendment rights by conditioning dismissal of civil forfeiture action upon plaintiffs agreement not to use real property for an “adult use”), cert. denied, — U.S. -, 116 S.Ct. 568 , 133 L.Ed.2d 492 (1995); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir.1991) (prosecutors allegedly violated plaintiffs constitutional rights by threatening to file criminal charges against plaintiff unless he stopped practicing medicine); Arnold v. McClain, 926 F.2d 963, 967 (10th Cir.1991) (prosecutor allegedly violated plaintiffs Fourth and Fifth Amendment rights by compelling him to resign from job to avoid a perjury charge); McGruder v. Necaise, 733 F.2d 1146, 1147-48 (5th Cir.1984) (prosecutors allegedly violated plaintiffs right to “ ‘free and equal’ access to the courts” by threatening to pursue criminal charges unless plaintiff dismissed civil action). In each of these cases, the alleged bad act was a perversion of the prosecutorial role; but each prosecutor was entitled to absolute immunity from civil liability because the role itself was prosecutorial. D’Amelia (whose conduct was in no way corrupt or immoral) should be protected in the same way for the same reason.

*1214 As in Sehloss, D’Amelia’s decision to forgo prosecution was made to depend upon a condition. That condition required Doe to give a statement under oath. The statement concerned the criminal charges then pending. The willingness of the complainants to cooperate further in the criminal proceedings depended on that statement. Eliciting such statements from a willing suspect in a pending criminal matter is not an activity foreign to the office of a prosecutor. See Buckley, 509 U.S. at 273 , 113 S.Ct. at 2615 (“acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial” are entitled to absolute immunity). That is because “[preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence,” Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 996 n. 33, including statements made by witnesses or alleged perpetrators. Therefore, in my view, we must grant D’Amelia absolute immunity because his conduct, while inappropriate, “occurred] in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273 , 113 S.Ct. at 2615 .

The majority opinion focuses on the impropriety of the prosecutor’s conduct rather than on whether that improper conduct was intertwined with a prosecutorial function. The majority thus poses a question to which there can be one answer: Is compelling a defendant to participate in a “religious ceremony” a prosecutorial function? That inquiry, however, conflates a generic function of a prosecutor (taking a statement under oath) with the aspect of that conduct which is alleged to be unconstitutional (taking that statement in a church, on a Bible, etc.). That is not the approach we have employed in previous cases. In Dory , we did not ask whether suborning perjury was “properly within the role of a prosecutor”; we held that that inquiry was “immaterial.” 25 F.3d at 83 . In Pinaud, we did not ask whether it was a prosecutorial function to dissemble and confect false charges. And in Sehloss, we did not ask whether procuring releases from civil liability was a prosecutorial act. In each of these cases, we asked whether the underlying conduct was related to the prosecutorial function — and granted absolute immunity if it was, whether or not the misconduct was egregious. By focusing on the nature of the misconduct in this case, the majority opinion erroneously qualifies absolute immunity. 1

Although prosecutors may set conditions for ending a prosecution — and enjoy absolute immunity in so doing — I agree wdth the majority that this freedom has its limits. Under Sehloss, we determine those limits by looking to the “nature of the conduct that was allegedly intertwined” with the decision to prosecute or not, “and deny absolute immunity if the demand was plainly beyond the prosecutor’s jurisdiction,” Schloss, 876 F.2d at 291-92 , or was “manifestly and palpably beyond his authority.” Spalding, 161 U.S. at 498 , 16 S.Ct. at 637 . Sehloss gives examples of misconduct that would be unsheltered by absolute immunity: a demand for a bribe or for sexual favors. 876 F.2d at 291 . These acts of misconduct — which serve purely personal interests without an alloy of a public function — differ in kind from the misconduct that is protected by absolute immunity. There is a difference between performing one’s office, however disgracefully, and offering to sell it for a purely personal benefit. 2

The majority rests its decision on the proposition that a government prosecutor “has no authority to require a religious act.” Maj. Op. at 1210. Under the Establishment Clause of the First Amendment, that is undoubtedly true. However, to characterize Doe’s oath as a “religious act” begs the ques *1215 tion of whether the act had a secular, prose-cutorial purpose. The prosecutorial purpose here was to ascertain whether Doe committed the crime and whether the complainants would cooperate in the prosecution. In aid of that purpose, D’Amelia asked Doe to recite, “I, Jane Doe, swear on this Bible that I did not have any form of sexual contact with my son Nicholas on any occasion, so help me God.” Similar statements are taken every day in federal and state courtrooms. As the majority stresses, a witness in federal court now has the option of averring as to the veracity of her testimony by a nonreligious affirmation. See Fed.R.Civ.P. 43(d); Fed.R.Evid. 603. But, conversely, an affiant may choose to swear on a Bible, and may end with the words “so help me God.” The essence and definition of any oath is the invocation of God as witness. While that invocation inspires awe, a witness’s oath is not thereby converted into a “religious act” or ritual that subsumes the secular purpose of the proceedings.

Naturally, religious feeling is heightened when an oath is taken in a church; but that does not keep the oath from serving the secular, prosecutorial function it fulfills in other settings. In Knapp v. Leonardo, 46 F.3d 170, 177 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 2566 , 132 L.Ed.2d 818 (1995), we affirmed the denial of a habeas petition filed by a defendant whose murder trial was conducted in a Catholic church hall while the Otsego County Courthouse was under repair. As the dissent pointed out, the premises contained “ ‘holy pictures’ and other religious artifacts, including but not necessarily limited to a crucifix along the path from the makeshift courtroom to the jury room.” Id. at 181 (Oakes, J., dissenting). Although this Court emphasized that “it was undoubtedly imprudent” to conduct the trial there, we quoted the view of the state appellate court that “[ejven traditional courtrooms are not devoid of religious symbols and artifacts and both jurors and witnesses are traditionally sworn with the phrase ‘so help you God.’ ” Id. at 177 (quoting People v. Knapp, 113 A.D.2d 154, 159 , 495 N.Y.S.2d 985, 989 (3d Dep’t 1985), cert. denied, 479 U.S. 844 , 107 S.Ct. 158 , 93 L.Ed.2d 97 (1986)).

As the majority opinion points out, John and Nicholas Doe stated that they preferred to “put [their] trust in the law of God, rather than the laws of man” when they promised that they would not testify against Doe if she took the oath. Although the Establishment Clause prohibits government officials from compelling citizens to participate in religious exercises, I cannot agree with the majority that D’Amelia, in asking Doe to take the oath in the church, undertook to enforce “the laws not of man but of God” (a locution that may suggest there is no overlap). Maj. Op. at 1211. D’Amelia performed his prosecutorial role in an unusual manner, faced as he was by strange circumstances: a criminal charge that is difficult to corroborate; a domestic dispute, in which deference (often excessive deference) is given to the willingness of family members to cooperate; and complainants who were willing to withdraw a possibly delusional charge if their wife and mother took an oath in the family’s church. D’Amelia had reason to think that that oath would fully serve the interests of the complainants, the defendant, the community and the prosecuto-rial office. As to Doe, D’Amelia’s conduct spared her the kind of ordeal and humiliation that persons unjustly accused of child molestation routinely endure, and from which acquittal is often an ineffective deliverance. Because I believe that D’Amelia’s actions were entwined with his functions as a prosecutor, I would hold that he is entitled to absolute immunity.

. A prosecutor who used his office to proselytize a particular religion could be viewed as obtaining a purely personal benefit. Here, however, the oath was taken in Doe’s own church, at the suggestion of her spouse and son, and there is no-indication that D’Amelia had or expressed the slightest sectarian preference.