Fabien Eldridge v. William E. Gibson, David Day, Robert Durham, Michael H. Knowlton, and Sam Lee

DAVID A. NELSON, Circuit Judge,

concurring in judgment.

Although I concur in the court’s judgment, my rationale differs in part from that employed in the lead opinion.

Whether the doctrine of absolute immunity should be extended to private contingent-fee lawyers employed by a crime victim to carry a second brief as “special prosecutors” under T.C.A. § 8-7-401 is a question both novel and (for me, at least) difficult. It is true that such lawyers perform a prosecutorial function — and if that were the end of the story, there would be no question about their entitlement to absolute immunity. It is also true, however, that in addition to functioning as prosecutors, they function as counsel in a private action for damages. As the Tennessee Court of Criminal Appeals demonstrated convincingly in State v. Eldridge, 951 S.W.2d 775 (1997), such special prosecutors have “inherent conflicts of interest” that are both “obvious and irreconcilable.” Id. at 783 .

In the very nature of things, the role of a special prosecutor under T.C.A. § 8-7-401 invites the contingent-fee lawyer who assumes that role to employ the coercive force of the state’s criminal justice machinery for an illicit purpose — squeezing the defendant in the criminal case until he coughs up enough money to satisfy the plaintiff in the private lawsuit. A plausible argument can be made, it seems to me, that for the private lawyer to act as a special prosecutor under the circumstances presented here is ipso facto to engage in an unconstitutional abuse of process. And if that argument were to be accepted, it would be hard for me to discern any rational justification for extending absolute immunity to the special prosecutor.

Be that as it may, I find it unnecessary to reach a firm conclusion on the absolute immunity issue. If the doctrine of absolute immunity does apply in a situation such as this, that is the end of the matter as far as the private-attorney defendants are concerned. If the absolute immunity doctrine does not apply, the question shifts to whether the private attorneys are entitled to dismissal on qualified immunity grounds. I believe they are — so at the end of the day, it seems to me, the private attorneys ought to prevail one way or the other.

Under the doctrine of qualified immunity, officials performing discretionary functions of the sort at issue here “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). This entitlement to be shielded from liability, as the Supreme Court made clear in a subsequent case, is not simply a “defense to liability;” it is “an immunity from suit .... ” Mitchell v. Forsyth, 472 *1023 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

In analyzing qualified immunity claims, we are normally constrained to follow a rigid sequence: first we ask whether a constitutional right would have been violated on the facts alleged, and only if that question is answered in the affirmative do we ask whether the constitutional right was clearly established. See Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). An important reason — if not the sole reason — for turning first to the existence or nonexistence of a constitutional right is that “the law’s elaboration from case to case” might suffer “were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful ... Id.

Given the divergent positions taken by my colleagues on the panel in this particular case, I believe I am free to skip ahead to the easy question of whether the special prosecutors acted in violation of a right that was clearly established, thus declining to answer the difficult question of whether Fabien Eldridge had a constitutional right not to be prosecuted criminally by contingent-fee lawyers who were also suing him civilly. Neither of my colleagues having answered the latter question, I would not be speaking for the court if I ventured to pontificate on how the issue should be resolved — and the world would still be without a definitive elaboration of the relevant law.

If the right claimed by Mr. Eldridge existed at all, I obviously do not believe it was clearly established. At the time of Eldridge’s prosecution a Tennessee statute explicitly allowed crime victims to employ private legal counsel to act as special prosecutors, and there was no judicial decision teaching that it would be a constitutionally impermissible abuse of process under federal law for Eldridge’s lawyers in the tort case to accept appointment as special prosecutors and to function as such under the authorization of the statute. On that narrow ground, and being satisfied that the private-attorney defendants would ultimately have to prevail if this case were to be remanded for further proceedings, I am content to concur in the judgment announced by the lead opinion with respect to the dismissal of the private-attorney defendants. Like Judge Cole, I concur in both the judgment and the opinion as far as the remaining issues are concerned.