Petition for Writ of Certiorari — John C. Baer, Petitioner v. Larry Trent Roberts, et al.

No.

In the Supreme Court of the United States

JOHN C. BAER, PETITIONER,

v.

LARRY TRENT ROBERTS; CITY OF HARRISBURG;

DAVID LAU.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

* Admitted only in the

District of Columbia

and Maryland; practicing law in New York

under the supervision

of lawyers in the firm

who are members in

good standing of the

New York bar.

ANDREW T. TUTT

Counsel of Record

MATTHEW L. FARLEY

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

NICOLE L. MASIELLO

WILLIAM T. SHARON

AUSTIN P. REAGAN*

TESS C. SAPERSTEIN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

QUESTIONS PRESENTED

In this case, a divided Third Circuit panel, over a

dissent by Judge Shwartz, deepened a widely-recognized

and entrenched circuit conflict regarding the scope of

absolute immunity for prosecutors. Respondent was

convicted of homicide. His conviction was later vacated,

and on retrial he was acquitted. He sued the original

prosecutor, petitioner here, and alleged that, one month

before the first trial, petitioner deliberately located a new

witness and persuaded the witness to fabricate testimony

for use at respondent’s trial. The majority below,

rejecting the tests used in other circuits, held that, by

seeking out a new witness, petitioner stepped out of his

prosecutorial role and into an “investigative” role,

forfeiting his entitlement to absolute prosecutorial

immunity. Judge Shwartz dissented, concluding, as

numerous other circuits have, that “collecting evidence in

preparation for trial” is “clearly the work of an advocate”

and therefore subject to prosecutorial immunity.

In the 31 years since Buckley v. Fitzsimmons, 509

U.S. 259 (1993), the Circuits have fallen into an

acknowledged, intractable conflict over how to distinguish

when a prosecutor is acting in a “prosecutorial” capacity

entitled to absolute immunity versus in an “investigative”

capacity subject to qualified immunity.

The questions presented are:

1. Whether prosecutors are always absolutely

immune from 42 U.S.C. § 1983 liability for (1) post-charge

acts (2) taken to marshal evidence to present at trial, as

four Circuits have held, or not, as two Circuits have held.

2. Whether the Court should clarify or, if necessary,

recede from its dictum in footnote five of Buckley, that “a

determination of probable cause does not guarantee a

prosecutor absolute immunity from liability for all actions

taken afterwards.”

(i)

RELATED PROCEEDINGS

United States District Court (M.D. Pa.):

Roberts v. Lau, No. 1-21-cv-01140, 2021 WL 4819312

(M.D. Pa. July 11, 2022) (order denying motion to

dismiss)

United States Court of Appeals (3d Cir.):

Roberts v. Lau, No. 22-2340, 90 F.4th 618 (3d Cir.

2024) (affirming denial of motion to dismiss)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory Provisions Involved ............................................ 1

Statement of the Case.......................................................... 1

Reasons for Granting the Petition ................................... 12

I. There Is a Clear and Intractable Conflict Over

the Scope of Absolute Prosecutorial Immunity ...... 12

II. The Court Should Revisit Footnote Five of

Buckley v. Fitzsimmons ............................................ 21

III. The Questions Presented Are Important and

Warrant Review .......................................................... 26

Conclusion ........................................................................... 31

Appendix A: Third Circuit Court of Appeals Opinion

(Jan. 11, 2024) ............................................. 1a

Appendix B: District Court Memorandum Opinion

(July 11, 2022) ........................................... 34a

Appendix C: District Court Order

(July 11, 2022) ........................................... 47a

Appendix D: Third Circuit Court of Appeals Order

(Feb. 5, 2024)............................................. 49a

Appendix E: Amend. XIV .............................................. 51a

Appendix F: 42 U.S.C. § 1983 ........................................ 53a

Appendix G: First Amended Complaint

(Aug. 2, 2022) ............................................ 54a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Creighton,

483 U.S. 635 (1987) .......................................................... 30

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ............................... 10, 15, 16

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ................................ 1, 3, 21, 22, 23, 30

Burns v. Reed,

500 U.S. 478 (1991) .......................................................... 23

Carson v. City of Philadelphia,

No. 23-2661, 2024 WL 2057398

(E.D. Pa. May 8, 2024) .................................................... 29

Commonwealth v. Roberts,

No. 1148 MDA 2017, 2018 WL 4922783

(Pa. Super. Ct. Oct. 10, 2018) ........................................... 7

Cousin v. Small,

325 F.3d 627 (5th Cir. 2003) ................... 10, 13, 14, 17, 18

Díaz-Colón v. Fuentes-Agostini,

786 F.3d 144 (1st Cir. 2015) ............................................ 14

Dory v. Ryan,

25 F.3d 81 (2d Cir. 1994) ........................................... 14, 15

Edwards v. Vannoy,

593 U.S. 255 (2021) ............................................ 3, 4, 25, 26

Espinosa v. City & County of San

Francisco, No. C 11-02282 JSW,

2011 WL 6056545 (N.D. Cal. Dec. 6, 2011) ......... 2, 19, 20

Filarsky v. Delia,

566 U.S. 377 (2012) .......................................................... 30

Fogle v. Sokol,

957 F.3d 148 (2020) .................................................... 10, 16

(iv)

v

Cases—Continued

Page(s)

Imbler v. Pachtman,

424 U.S. 409 (1976) ...................................... 1, 4, 22, 24, 27

Kalina v. Fletcher,

522 U.S. 118 (1997) .......................................................... 25

Kroemer v. Tantillo,

758 F. App’x 84 (2d Cir. 2018) .................................. 11, 15

Mitchell v. Forsyth,

472 U.S. 511 (1985) .......................................................... 30

Moore v. Valder,

65 F.3d 189 (D.C. Cir. 1995) ..................................... 14, 17

Parlton v. United States,

75 F.2d 772 (D.C. Cir. 1935) ........................................... 28

Rehberg v. Paulk,

566 U.S. 356 (2012) ...................................................... 4, 30

Rios v. City of Del Rio,

444 F.3d 417 (5th Cir. 2006) ........................................... 19

Van de Kamp v. Goldstein,

555 U.S. 335 (2009) .................................................... 25, 26

Vargas v. Maranda,

CV-F-08-1707, 2009 WL 1769849

(E.D. Cal. June 23, 2009) ............................................ 2, 20

Wearry v. Foster,

33 F.4th 260 (5th Cir. 2022) .......................... 11, 14, 16, 18

Wearry v. Foster,

52 F.4th 258 (5th Cir. 2022) ...1-4, 12-13, 18-19, 21, 24, 31

Whitlock v. Brueggemann,

682 F.3d 567 (7th Cir. 2012) ........................................... 24

Yarris v. County of Delaware,

465 F.3d 129 (2006) .......................................................... 10

Young v. United States,

315 U.S. 257 (1942) ................................................ 4, 28, 29

vi

Other Authorities

Page(s)

ABA Model Rules of Professional Conduct,

Rule 3.8-Special Responsibilities of a

Prosecutor ........................................................................ 28

Adam M. Gershowitz & Laura R. Killinger,

The State (Never) Rests: How Excessive

Prosecutorial Caseloads Harm Criminal

Defendants, 105 N.W. L. Rev. 261 (2011) ..................... 26

Alan K. Chen, The Ultimate Standard:

Qualified Immunity in the Age of

Constitutional Balancing Tests,

81 Iowa L. Rev. 261 (1995) ............................................. 31

Andrew Hessick, The Impact of

Government Appellate Strategies on the

Development of Criminal Law,

93 Marq. L. Rev. 477 (2009) ........................................... 29

Christine Vendel, After Battling

Murderers in Dauphin County for

Years, Prosecutor Leaves for Federal

Job, PennLive (Dec. 20, 2018) .......................................... 7

Erwin Chemerinsky, Absolute Immunity:

General Principles

and Recent Developments,

24 Touro L. Rev. 473 (2008) ....................................... 2, 20

John C. Jeffries, Jr., The Liability Rule

for Constitutional Torts,

99 Va. L. Rev. 207 (2013) ............................................ 2, 20

Jon B. Gould & Richard A. Leo, The Path

to Exoneration,

79 Alb. L. Rev. 325 (2016) ............................................... 29

Margaret Z. Johns, Reconsidering

Absolute Prosecutorial Immunity,

2005 B.Y.U. L. Rev. 53 (2005) .............................. 2, 17, 20

vii

Other Authorities—Continued

Page(s)

Margaret Z. Johns, Unsupportable and

Unjustified: A Critique of Absolute

Prosecutorial Immunity,

80 Fordham L. Rev. 509 (2011) .................................. 2, 20

Matt Miller, Man Acquitted of Harrisburg

Murder After Spending 13 Years in

Prison Sues Detective, Prosecutor,

PennLive (July 2, 2021) .................................................... 7

Megan M. Rose, Note, Endurance of

Prosecutorial Immunity-How the

Federal Courts Vitiated Buckley v.

Fitzsimmons, 37 B.C. L. Rev. 1019 (1996) ................ 2, 21

Michael Avery, et al., Police Misconduct:

Law and Litigation § 3:4 ........................................... 2, 21

Michael L. Wells, Absolute Official

Immunity in Constitutional Litigation,

57 Ga. L. Rev. 919 (2023) .................................................. 2

S. Gibson, et al., eds., Trial Court Caseload

Overview, Court Statistics Project ................................ 26

The National Registry of Exonerations,

University of Michigan Law School .............................. 29

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-33a)

is reported at 90 F.4th 618 (3d Cir. 2024). The opinion of

the district court (Pet. App. 34a-46a) is unreported but

available at 2022 WL 2677473. The order of the court of

appeals denying rehearing en banc (Pet. App. 49a-50a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 11, 2024. Pet. App. 1a. The court of appeals

denied a timely petition for rehearing en banc on

February 5, 2024. Pet. App. 50a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant constitutional and statutory provisions,

U.S. Const. amend. XIV § 1, and 42 U.S.C. § 1983, are

reproduced in the petition appendix, Pet. App. 51a-53a.

STATEMENT OF THE CASE

This case presents an “irreconcilable conflict” among

the federal courts of appeals over an important question

central to “the scope of absolute prosecutorial immunity.”

Wearry v. Foster, 52 F.4th 258, 260, 263 (5th Cir. 2022)

(Jones, J., joined by Smith and Duncan, JJ., dissenting

from denial of rehearing en banc). The question is

whether the protections of absolute prosecutorial

immunity from civil liability under 42 U.S.C. § 1983

always extend to a prosecutor’s post-charge acts taken to

marshal evidence for trial.

Applying Imbler v. Pachtman, 424 U.S. 409 (1976),

and Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the

First, Second, Fourth, and (sometimes) Fifth Circuits say

yes. The D.C., Third, and (other times) Fifth Circuits say

(1)

2

no. In the decision below, the Third Circuit declined to

apply the test other circuits have articulated, rejected the

reasoning in Judge Shwartz’s dissent, and held that a

prosecutor collecting evidence for trial—against a

defendant who has already been charged—can

nonetheless lose the protections of absolute prosecutorial

immunity if his actions are deemed sufficiently

“investigative” by a judge or jury.

This case warrants the Court’s review. It involves a

recurrent and important question that affects the civil

liability protections of every state and local prosecutor

nationwide. The split is clear, acknowledged, and

entrenched.1 Courts and commentators have recognized

the “mishmash” of divergent answers in the lower courts.

Wearry, 52 F.4th at 260, 263 (Jones, J., dissental) (noting

“conflicts [among] significant sister circuit decisions”); Espinosa v.

City & County of San Francisco, No. C 11-02282 JSW, 2011 WL

6056545, at *2 & n.4 (N.D. Cal. Dec. 6, 2011) (“out-of-circuit

authority on this issue is in conflict”); Vargas v. Maranda, CV-F08-1707, 2009 WL 1769849, at *5 (E.D. Cal. June 23, 2009)

(“conflicting out-of-circuit authority”); Margaret Z. Johns,

Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U. L.

Rev. 53, 56-57 (2005) (circuits “are divided”); Margaret Z. Johns,

Unsupportable and Unjustified: A Critique of Absolute

Prosecutorial Immunity, 80 Fordham L. Rev. 509, 527 (2011)

(“multiple conflicting decisions”); John C. Jeffries, Jr., The

Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 223

(2013) (“confusion”); Michael Avery, et al., Police Misconduct: Law

and Litigation § 3:4 (noting conflict); Erwin Chemerinsky, Absolute

Immunity: General Principles and Recent Developments, 24 Touro

L. Rev. 473, 477 (2008) (“lower courts struggle”); Megan M. Rose,

Note, Endurance of Prosecutorial Immunity—How the Federal

Courts Vitiated Buckley v. Fitzsimmons, 37 B.C. L. Rev. 1019, 104160 (1996) (“the Supreme Court has still provided no precise

guidelines”); Michael L. Wells, Absolute Official Immunity in

Constitutional Litigation, 57 Ga. L. Rev. 919, 933 & n.100 (2023)

(“The lower federal courts regularly face the issue of what activities

fall within absolute prosecutorial immunity.”).

1

3

Wearry, 52 F.4th at 260, 263-64 (Jones, J., dissental).

Without this Court’s intervention, “these issues will recur,

to the detriment of clear law, of honest prosecutors, and

the public interest.” Id. at 264.

The vastly different holdings as to when, postprobable cause, a prosecutor is entitled to absolute

immunity stem from a confusing footnote in Buckley, 509

U.S. at 274 n.5. In footnote five of Buckley, the Court, in

an apparent effort to leave the question open, wrote that

“a determination of probable cause does not guarantee a

prosecutor absolute immunity from liability for all actions

taken afterwards,” and that “[e]ven after that

determination … a prosecutor may engage in ‘police

investigative work’ that is entitled to only qualified

immunity.” 509 U.S. at 274 n.5 (emphasis added). That

dictum, which this Court has never since applied, has

created a conflict among—and even within—the courts of

appeals. The scope and application of that footnote

“remain unknowable decades later.” Edwards v. Vannoy,

593 U.S. 255, 294 (2021) (Gorsuch, J., concurring).

At its most charitable, that dictum was meant to leave

an exceptionally narrow opening for potential post-charge

claims against prosecutors, not open the door to discovery

in any case where the plaintiff alleges that the prosecutor

“investigat[ed]” some issue post-charge. Buckley, 509

U.S. at 274. Yet Buckley’s esoteric footnote has spawned

an enormous body of law in the lower courts seeking to

isolate post-probable-cause “advocacy” from postprobable-cause “investigation”—and led numerous

courts, like the court below, to conclude that core

prosecutorial conduct (trial preparation) is somehow

“investigative.” The Court should take this case to correct

the courts of appeals that have transformed the “wiggle

room” provided for in footnote five into a chasm wide

enough to swallow the rule. Edwards, 593 U.S. at 294

(Gorsuch, J., concurring). While footnote five “le[ft] a door

4

ajar and h[eld] out the possibility that someone, someday

might walk through it,” id. at 282 (Gorsuch, J.,

concurring), the Court should now “wisely close[ the]

door,” id. at 281 (Thomas, J., concurring).

Both of the questions presented are vitally important.

A functioning criminal justice system is the infrastructure

of a “well-ordered society.” Young v. United States, 315

U.S. 257, 259 (1942). Limiting prosecutorial immunity as

the Third Circuit did below upends that order. It

discourages prosecutors from confessing error and

“open[s] the way for unlimited harassment and

embarrassment of the most conscientious officials.”

Imbler, 424 U.S. at 423. Indeed, the rule articulated below

permits plaintiffs to plead artfully around prosecutorial

immunity, embroiling prosecutors in extensive civil

litigation any time a charge does not result in a conviction.

This Court should not “endorse a rule of absolute

immunity that is so easily frustrated.” Rehberg v. Paulk,

566 U.S. 356, 370 (2012); see also id. at 369 (discussing

evasion of immunity through artful pleading). The Court

should grant review and clarify the protections shielding

prosecutors from meritless lawsuits.

1. This case, which the Third Circuit majority twice

described as “a close call,” Pet. App. 13a, 17a, and “a tough

question with no clear answer,” Pet. App. 10a,

demonstrates how a single footnote of dictum in Buckley

turned the prosecutorial immunity doctrine into a

“mishmash,” Wearry, 52 F.4th at 260, 263-64 (Jones, J.,

dissental).

a. The complaint, which the Third Circuit treated as

true for purposes of its decision, alleges that defendantrespondent Detective David Lau harbored a decades-old

“personal animus against [plaintiff-respondent Larry]

Roberts” and orchestrated a scheme to convict Roberts of

murder. Pet. App. 68a (Amend. Compl. ¶ 62(g)).

5

This case begins with a homicide. Duwan Stern was

killed on December 21, 2005, at approximately 10:00pm.

Pet. App. 57a (Amend. Compl. ¶ 13). Lau, the primary

investigator on the case, arrived on the scene an hour

after it happened. Pet. App. 61a (Amend. Compl. ¶ 44).

Lau suspected Roberts was involved in the murder

because Roberts had called Stern’s cell phone three times

after Stern’s body was discovered. Pet. App. 61a (Amend.

Compl. ¶ 45).

According to the complaint, this was not Lau’s first

interaction with Roberts. In 1994, Lau had arrested

Roberts and allegedly assaulted Roberts in the course of

that arrest. Pet. App. 61a (Amend. Compl. ¶¶ 40-41). The

charges in that earlier case were ultimately dropped.

Pet. App. 61a (Amend. Compl. ¶ 42). But Lau allegedly

still had a grudge against Roberts. Pet. App. 68a (Amend.

Compl. ¶ 62).

Recognizing Roberts’s name on Stern’s cellphone,

Lau began looking for a connection between Roberts and

Stern’s murder. Pet. App. 62a (Amend. Compl. ¶¶ 47-48).

The complaint alleges that Roberts did not match the

description Lau had received from two witnesses, but Lau

nonetheless included pictures of Roberts in a photo array

he showed to every witness. Pet. App. 62a-63a (Amend.

Compl. ¶¶ 41, 45, 48). The witnesses did not identify

Roberts from the array. Pet. App. 63-64a (Amend. Compl.

¶¶ 42, 46, 47).

Even so, Lau took Roberts into custody.

Pet. App. 65a (Amend. Compl. ¶ 52). Lau then asked an

eyewitness, who had earlier failed to select Roberts from

a photo array, to come identify him at the station.

Pet. App. 66a (Amend. Compl. ¶ 56). According to the

complaint, Lau did not follow any standard lineup

procedures, but rather had the witness look at just

Roberts, coercing her into identifying Roberts as the man

6

she saw on the night Stern was murdered. Pet. App. 66a67a (Amend. Compl. ¶ 58).

The complaint alleges that Lau, obsessed with

investigating Roberts, submitted an affidavit in support of

probable cause to the court that was “riddled with

fabrications and reckless omissions.” Pet. App. 67a

(Amend. Compl. ¶ 60). Lau allegedly lied to the court,

saying that Roberts matched the descriptions provided by

eyewitnesses. Pet. App. 67a-68a (Amend. Compl. ¶ 61).

Lau also allegedly omitted that other suspects “had

bragged about killing Mr. Stern,” and that three

eyewitnesses had failed to identify Roberts in the photo

array. Pet. App. 68a (Amend. Compl. ¶ 62). According to

the complaint, Lau also failed to disclose to the court that

“he had a history of personal animus against Mr.

Roberts.” Pet. App. 68a (Amend. Compl. ¶ 62).

As trial approached, Lau learned that a witness he

had arranged to testify as to Roberts’s motive no longer

intended to cooperate with law enforcement.

Pet. App. 72a (Amend. Compl. ¶ 89). Lau allegedly began

searching for a replacement. Pet. App. 72a (Amend.

Compl. ¶ 90).

b. At this point, the complaint sets its sights on the

prosecuting attorney, petitioner ADA Baer. See, e.g.,

Pet. App. 72a (Amend. Compl. ¶ 90).

The complaint alleges that over a year and a half after

Lau brought Roberts into custody, and just one month

before trial, petitioner met with a potential trial witness,

jailhouse informant Layton Potter, “who would testify as

to a motive.” Pet. App. 72a (Amend. Compl. ¶ 90).

According to the complaint, petitioner “approached

[Potter] and asked him if he ‘wanted a piece’ of the case

against Mr. Roberts.” Pet. App. 73a (Amend. Compl.

¶ 92). Potter allegedly “did, in fact want a piece of the case

in order to gain favor related to charges that were

pending against him.” Pet. App. 73a (Amend. Compl.

7

¶ 93). “Accordingly, Mr. Potter crafted a false statement

for [petitioner and Lau] which purported to establish

motive for Mr. Roberts to kill Mr. Stern.” Pet. App. 73a

(Amend. Compl. ¶ 93). “Mr. Potter fabricated a story of

conflict between Mr. Roberts and Mr. Stern out of whole

cloth.” Pet. App. 73a (Amend. Compl. ¶ 94).

At trial, petitioner called Potter as a witness.

Pet. App. 73a-74a (Amend. Compl. ¶ 97). Petitioner

explained to the jury that Potter’s testimony would “help

them understand how and why” Stern was murdered.

Pet. App. 73a (Amend. Compl. ¶ 95). Potter told the jury

that Stern and Roberts were “both in the drug business

and had a dispute over unpaid drug debts.” Pet. App. 73a

(Amend. Compl. ¶ 94). On November 14, 2007, the jury

convicted Roberts and he was sentenced to life in prison.

Pet. App. 56a (Amend. Compl. ¶ 9).

Six years after the trial, Potter recanted and claimed

that petitioner and Lau used him “to ensure a conviction.”

Pet. App. 74a (Amend. Compl. ¶ 99). Roberts’s conviction

was later vacated due to ineffective assistance of counsel.

Commonwealth v. Roberts, No. 1148 MDA 2017, 2018 WL

4922783, at *9 (Pa. Super. Ct. Oct. 10, 2018). Petitioner,

who had since left the DA’s office to become a federal

Assistant United States Attorney in the Middle District

of Pennsylvania, took special leave to handle Roberts’s reprosecution.2 A jury acquitted Roberts on September 17,

2019. Pet. App. 56a (Amend. Compl. ¶ 9).

2. After his acquittal on retrial, Roberts sued Lau,

the City of Harrisburg, Pennsylvania, and petitioner for

Christine Vendel, After Battling Murderers in Dauphin County

for Years, Prosecutor Leaves for Federal Job, PennLive (Dec. 20,

2018), https://perma.cc/AK47-4PA4; Matt Miller, Man Acquitted of

Harrisburg Murder After Spending 13 Years in Prison Sues Detective, Prosecutor, PennLive (July 2, 2021), https://perma.cc/XE7LDYX9.

2

8

violating his civil rights. Pet. App. 54a. Roberts brought

five claims against Lau, alleging malicious prosecution,

withholding of evidence, fabrication of evidence, and

conspiring to fabricate evidence. Pet. App. 79a-87a

(Amend. Compl. ¶¶ 113-50). Roberts brought one claim

against the City under 42 U.S.C. § 1983, alleging the City

failed to implement and maintain policies and trainings

related to the creation of affidavits of probable cause.

Pet. App. 84a-85a (Amend. Compl. ¶¶ 136-42).

Roberts also brought two claims against petitioner

under § 1983, alleging that he “fabricated evidence” and

“conspired to fabricate evidence.” Pet. App. 81a-84a

(Amend. Compl. ¶¶ 121-25, 131-35). Petitioner moved to

dismiss the § 1983 claims against him on the basis of

absolute prosecutorial immunity. Pet. App. 7a.

The district court noted that Roberts’s “claims

against [petitioner] stem from a single act,”

Pet. App. 39a—that petitioner “fabricated evidence” by

allegedly instructing Potter to testify falsely at trial.

Pet. App. 35a. The district court denied petitioner

absolute immunity on the ground that petitioner “played

‘the detective’s role’ to ‘search[] for the clues and

corroboration’ necessary to convict [Roberts].”

Pet. App. 40a (citation omitted).

3.a. A divided panel of the Third Circuit affirmed.

Pet. App. 24a-25a. The majority stated that “[t]he sole

issue on appeal” was “whether [petitioner] functioned as

an advocate or an investigator” when he allegedly

fabricated testimony one month before Roberts’s original

criminal trial and nearly two years after Roberts’s

indictment. Pet. App. 8a.

Following Third Circuit precedent, the majority

articulated a two-step process for determining whether a

prosecutor is entitled to absolute immunity: “First we

ascertain just what conduct forms the basis for the

plaintiff’s cause of action. Then, we determine what

9

function (prosecutorial, administrative, investigative, or

something else entirely) that act served.” Pet. App. 11a

(citations and quotation marks omitted).

Despite acknowledging that the issue was a “close

call,” the majority concluded that petitioner’s post-charge

interview with Potter, intended to generate evidence for

trial, was “investigative” not “prosecutorial” and

therefore petitioner could not claim absolute immunity.

Pet. App. 13a.

Purporting to apply the dictum in footnote five of

Buckley, the panel majority first held that petitioner

could not claim prosecutorial immunity solely on the basis

that the interview was post-charge. Pet. App. 13a.

Quoting that footnote, the majority stated the

“determination of probable cause [for an arrest] does not

guarantee a prosecutor absolute immunity from liability

for all actions taken afterwards,” because “[e]ven after

that determination, … a prosecutor may engage in ‘police

investigative work that is entitled to only qualified

immunity.’” Pet. App. 13a (quoting Buckley, 509 U.S. at

274 n.5). Thus, the majority concluded that “the fact that

a prosecutor sought to generate evidence post-charge

cannot be enough to show that their conduct served a

prosecutorial function.” Pet. App. 14a.

Next, taking a step beyond Buckley’s dictum, the

panel majority concluded that even when a post-charge

witness interview is “designed to produce inculpatory

evidence for trial” it still is not necessarily entitled to

prosecutorial immunity. Pet. App. 13a-14a (citing

Buckley, 509 U.S. at 277).

Emphasizing Buckley’s dictum disavowing brightline rules, the majority determined that “[t]he timing of

conduct as pre- or post-indictment and the presence or

absence of a connection to a judicial proceeding” are

merely “relevant considerations” and “not enough to

establish that a prosecutor’s post-charge effort to

10

fabricate evidence for trial served a quasi-judicial

function.” Pet. App. 16a-17a (quotation marks omitted).

The majority thus rejected the premise that a prosecutor

necessarily acts as an advocate when, after the defendant

has been arrested and charged, the prosecutor marshals

evidence for trial. According to the majority, those facts

are not enough for prosecutorial immunity to attach.

Pet. App. 16a-17a.

Instead, to determine whether petitioner’s actions

crossed the line from prosecutorial to investigative, the

majority compared petitioner’s alleged actions to the facts

in two earlier Third Circuit cases addressing

prosecutorial immunity, Yarris v. County of Delaware,

465 F.3d 129 (2006), and Fogle v. Sokol, 957 F.3d 148

(2020). In Yarris, the court held that prosecutors were

entitled to absolute immunity for soliciting false

testimony from a jailhouse informant because the

prosecutors’ “involvement with [the false] statements

occurred after Yarris’s prosecution for those crimes had

begun.” 465 F.3d at 139. In Fogle, by contrast, the court

denied absolute immunity to prosecutors who “not only

solicited false statements from jailhouse informants, but

deliberately encouraged the State Troopers to do the

same.” Fogle, 957 F.3d at 163-64. The majority below

concluded that Fogle was a “closer fit to [petitioner’s]

alleged conduct than Yarris” because, as in Fogle,

petitioner worked with police officers to identify a

jailhouse informant to testify falsely at trial.

Pet. App. 22a.

The majority expressly declined to consider the more

protective bright-line tests for prosecutorial immunity

used in other circuits. Concluding that “Fogle resolves

whether [petitioner] is entitled to absolute immunity on

the face of the complaint,” the majority refused to

“address” the “out-of-circuit cases” in petitioner’s brief,

including Cousin v. Small, 325 F.3d 627 (5th Cir. 2003),

11

Annappareddy v. Pascale, 996 F.3d 120 (4th Cir. 2021),

and Kroemer v. Tantillo, 758 F. App’x 84 (2d Cir. 2018).

Pet. App. 22a n.10.3

b. Judge Shwartz dissented. She reasoned that

because (1) Roberts had already been charged when

petitioner “solicited the witness’s statement,” and (2) “this

testimony was intended to be used for trial rather than for

an investigative purpose,” “[petitioner] was acting as an

advocate rather than an investigator.” Pet. App. 25a, 32a33a.

Judge Shwartz noted that “[t]he alleged solicitation

occurred over a year and a half after Roberts had been

identified as a suspect and charged, and then only after

the Detective identified the witness to [petitioner] one

month before trial.” Pet. App. 29a. Although “timing

alone is [not] dispositive … under Buckley,” Judge

Shwartz explained, the fact that petitioner “was seeking

someone ‘who would testify as to a motive’ for the murder

… demonstrates that [petitioner] was ‘evaluating

evidence and interviewing witnesses as he prepare[d] for

trial,’ rather than just ‘searching for … clues.’”

Pet. App. 30a & 30a n.7 (quoting Amend. Compl. ¶ 84,

Buckley, 509 U.S. at 273). Thus, Judge Shwartz reasoned,

the combination of “the timing of [petitioner’s alleged]

conduct and its purpose show that [petitioner] acted as an

advocate rather than an investigator when he met with

[the witness].” Pet. App. 30a.

Judge Shwartz also disagreed with the majority’s

reliance on Fogle. She observed that Fogle “conflicts with

As explained, infra, in those circuits “a prosecutor accused of

falsifying [evidence] is entitled to absolute immunity if he does so

(1) after indictment or determination of probable cause, and (2) with

the intent of presenting that [evidence] at trial.” Wearry v. Foster,

33 F.4th 260, 274 (5th Cir. 2022) (Ho., J., dubitante) (summarizing

Cousin).

3

12

our earlier cases [(e.g., Yarris)] holding that collecting

evidence in preparation for trial or grand jury

proceedings is an advocacy function.” Pet. App. 31a. In

any event, she reasoned, Yarris was the closer fit.

Pet. App. 32a.

Finally, Judge Shwartz reiterated “that [petitioner]

solicited the witness’s statement for the purpose of

gathering testimony, and the temporal proximity to the

trial shows this testimony was intended to be used for trial

rather than for an investigative purpose.” Pet. App. 32a33a. Judge Shwartz thus concluded that by “preparing for

trial and interview[ing] a witness” petitioner’s actions

were “clearly the work of an advocate.” Pet. App. 31a.

The Third Circuit denied a timely petition for

rehearing en banc. Pet. App. 50a. The district court

stayed all district court proceedings against petitioner

pending the disposition of this petition for certiorari. See

Order Granting Motion to Stay, Roberts v. Lau, No. 21cv-1140, ECF No. 88 (M.D. Pa. May 22, 2024).

REASONS FOR GRANTING THE PETITION

I.

THERE IS A CLEAR AND INTRACTABLE CONFLICT

OVER THE SCOPE OF ABSOLUTE PROSECUTORIAL

IMMUNITY

The decision below deepened an “irreconcilable

conflict” among the federal courts of appeals over

whether prosecutors are always absolutely immune from

civil liability for post-charge acts taken to marshal

evidence for trial. Wearry, 52 F.4th at 263 (Jones, J.,

dissental). That conflict is widely-recognized by courts

and commentators. See supra n.1.

The First, Second, Fourth, and (sometimes) Fifth

Circuits say yes, prosecutors are always absolutely

immune from civil liability for post-charge acts taken to

marshal evidence for trial. The D.C., Third, and (other

times) Fifth Circuits say no. As three Fifth Circuit judges

13

recently lamented: “Pity the district court judges and

counsel” who are “left with [the] mishmash” of divergent

answers to this important question. Wearry, 52 F.4th at

260, 264 (Jones, J., joined by Smith and Duncan, JJ.,

dissental). Without this Court’s intervention, “these

issues will recur, to the detriment of clear law, of honest

prosecutors, and the public interest.” Id. at 264.

A. Petitioner would have prevailed under the test that

governs in the First, Second, Fourth, and (sometimes)

Fifth Circuits. Under that test, a prosecutor is immune

from post-charge acts taken to marshal evidence for trial.

Instead, the Third Circuit held that “the fact that a

prosecutor sought to generate evidence” for trial, “postcharge[,] cannot be enough to show that their conduct

served a prosecutorial function.” Pet. App. 14a. Thus,

according to the Third Circuit majority below, petitioner

was not entitled to the absolute immunity he would have

received in other circuits.

1. The decision below is irreconcilable with the Fifth

Circuit’s decision in Cousin v. Small, 325 F.3d 627 (5th

Cir. 2003) (per curiam), which the majority below

expressly declined to “address” on the ground that

Cousin is “out-of-circuit,” Pet. App. 22a n.10. In Cousin,

the prosecutor attempted to coerce Cousin’s friend to

testify falsely at Cousin’s trial in exchange for favorable

treatment in his own pending case. Id. at 629. Applying

Imbler and Buckley, the Fifth Circuit concluded that the

prosecutor was “acting as [an] advocate[]” because he met

with the prospective witness “to tell him how he should

testify in court and to rehearse his testimony with him.”

Id. at 632-34. The court explained that “[t]he interview

was intended to secure evidence that would be used in the

presentation of the state’s case at the pending trial of an

already identified suspect, not to identify a suspect or

establish probable cause,” so the prosecutor “therefore

[was] entitled to absolute immunity with respect to this

14

claim.” Id. at 635. “In short,” Cousin held, “a prosecutor

accused of falsifying witness testimony is entitled to

absolute immunity if he does so (1) after indictment or

determination of probable cause, and (2) with the intent of

presenting that testimony at trial.” Wearry v. Foster, 33

F.4th 260, 274 (5th Cir. 2022) (Ho., J., dubitante)

(summarizing Cousin).

In granting immunity in Cousin, the Fifth Circuit

expressly rejected the D.C. Circuit’s reasoning in Moore

v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995), “that the

collection of information for use in a prosecution is

necessarily investigative rather than advocatory

conduct.” Cousin, 325 F.3d at 633 n.6 (summarizing

Moore). The Fifth Circuit explained that Moore “is

inconsistent with” Fifth Circuit precedent and

“demonstrates a much narrower conception of the

advocatory role than is justified by Imbler.” Id.

b. The First Circuit applies the same test the Fifth

Circuit applied in Cousin. In Díaz-Colón v. FuentesAgostini, 786 F.3d 144, 148 (1st Cir. 2015), for example,

the First Circuit granted absolute immunity to a

prosecutor alleged to have bribed a prospective witness to

testify falsely at trial. Because the prosecutor’s

“involvement was limited to his actions as a prosecutor in

connection with preparing the Commonwealth’s evidence

at trial,” it was “immunized prosecutorial advocacy.” Id.

at 150-51. The court emphasized that “[p]reparing trial

witnesses is at the core of what a prosecutor qua

prosecutor does, and the trial itself is the quintessential

judicial proceeding.” Id. at 151.

c. The Second Circuit’s rule is the same. In Dory v.

Ryan, 25 F.3d 81, 82 (2d Cir. 1994), for example, the

Second Circuit granted absolute immunity to a prosecutor

alleged to have “entered into an extra-judicial conspiracy

[with a prospective witness] to convict [the defendant]

based on perjured testimony.” Although the court in Dory

15

had previously denied absolute immunity, it reconsidered

its decision after Buckley, and concluded “that absolute

immunity protects a prosecutor from” liability for

“allegedly conspiring to present false evidence at a

criminal trial.” Id. at 83.

A panel of the Second Circuit applied this rule more

recently in Kroemer, 758 F. App’x 84, another decision the

Third Circuit majority below declined to “address,”

Pet. App. 22a n.10. In Kroemer, the court granted

absolute immunity to a prosecutor alleged to have

“coach[ed] a witness.” 758 F. App’x at 87. Judges

Livingston, Sack, and Chin explained that “preparing a

witness for trial during a pending criminal proceeding”—

even coaching that witness to give false testimony—“falls

squarely within the prosecutor’s role as advocate and

therefore remains protected by absolute immunity.” Id.

d. Finally, the Fourth Circuit applied the same test

to the alleged fabrication of evidence in Annappareddy,

996 F.3d 120, another case the majority below declined to

“address,” Pet. App. 22a n.10. After fraud charges against

Annappareddy were dismissed, he sued the prosecutor

for fabricating evidence, alleging that she had “worked

with an internal auditor at the U.S. Attorney’s Office to

produce new [data] that would … falsely … inculpate

Annappareddy in fraud.” Id. at 129. In holding that the

prosecutor was entitled to absolute immunity, the Fourth

Circuit explained that “Annappareddy’s complaint

allege[d] wrongdoing on [the prosecutor’s] part that

occurred only after he had been identified as a suspect,

after probable cause had been established, and after he

had been twice indicted.” Id. at 140. Applying Buckley, the

court “readily conclude[d]” that this was “enough to

establish that [the prosecutor’s] alleged evidence

fabrication was undertaken in her ‘advocative’ capacity, in

preparation for the trial that was about to begin, and not

as an ‘investigator’ seeking probable cause for an arrest

16

or indictment.” Id. As in Cousin, the prosecutor’s alleged

fabrication of evidence occurred “after probable cause

had been established” and “in anticipation of trial.” Id.

In all of the cases above, the prosecutor was entitled

to absolute immunity because the alleged fabrication of

testimony or other evidence occurred “(1) after

indictment or determination of probable cause, and (2)

with the intent of presenting that [evidence] at trial.”

Wearry, 33 F.4th at 274 (Ho., J., dubitante) (summarizing

Cousin). Under that standard, petitioner here would have

been entitled to absolute immunity as well. As Judge

Shwartz explained in her dissent below, petitioner “here

was preparing for trial and interviewed a witness, who the

Detective identified, for presentation to the jury. This is

clearly the work of an advocate.” Pet. App. 31a.

2. The test the Third Circuit majority applied below

directly conflicts with decisions in the First, Second,

Fourth, and Fifth Circuits. And the D.C. Circuit applies

an even more extreme outlier rule than the Third Circuit.

a. The Third Circuit’s standard comes from Fogle,

957 F.3d 148, and as the majority below explained, Fogle

“dictate[d]” the outcome of this case. Pet. App. 13a. In

Fogle, the Third Circuit denied immunity to prosecutors

who, post-arrest, allegedly used “improper tactics to

obtain [a] false and fabricated statement from [the

defendant’s brother],” and encouraged police officers to

obtain additional “fabricate[d] statements from three

jailhouse informants.” Fogle, 957 F.3d at 163 (quotation

marks omitted). Attempting to “parse the[] fine lines

between advocacy and investigation,” “dissecti[ng] … the

prosecutor’s actions,” and rejecting “bright-line rules,”

the Third Circuit in Fogle concluded that the prosecutors

were not entitled to immunity—even though their acts

were post-arrest—because they were “investigating

[their] theory of [the] case.” Id. at 160, 163.

17

In her dissent from the decision below, Judge

Shwartz noted that “Fogle’s reasoning … conflicts with …

earlier [Third Circuit] cases holding that collecting

evidence in preparation for trial or grand jury

proceedings is an advocacy function.” Pet. App. 31a.

Aligning with the majority of circuits, Judge Shwartz

concluded, contra Fogle, that a prosecutor “preparing for

trial” who generates evidence “for presentation to the

jury” “is clearly [doing] the work of an advocate.”

Pet. App. 31a.

b. The D.C. Circuit has taken an even more extreme

position than the Third Circuit. In Moore, the D.C. Circuit

held that, under Imbler and Buckley, coercing a witness

to present false testimony categorically “relates to a

typical police function, the collection of information to be

used in a prosecution.” 65 F.3d at 194. In an opinion the

Fifth Circuit expressly rejected in Cousin, 325 F.3d at 633

n.6, the D.C. Circuit reversed a grant of absolute

immunity to a prosecutor who allegedly “pressur[ed]

witnesses into incriminating Moore,” Moore, 65 F.3d at

192. The D.C. Circuit reasoned that “[i]ntimidating and

coercing witnesses into changing their testimony is not

advocatory” but “is rather a misuse of investigative

techniques legitimately directed at exploring whether

witness testimony is truthful and complete and whether

the government has acquired all incriminating evidence.”

Id. at 194 (emphasis added). Thus, as one commentator

put it, “[t]he D.C. Circuit took a categorical approach in

holding that coercing witnesses to testify falsely is an

investigative function that receives only qualified

immunity.” Margaret Z. Johns, Reconsidering Absolute

Prosecutorial Immunity, 2005 B.Y.U. L. Rev. 53, 101

(2005) (contrasting Moore with Cousin).

3. Adding to the division and confusion, the Fifth

Circuit recently deepened “the conflict between …

circuits” and “created an irreconcilable [intra-circuit]

18

conflict with Cousin.” Wearry, 52 F.4th at 263 (Jones, J.,

dissental). In Wearry, 33 F.4th at 273, a divided panel of

the Fifth Circuit denied absolute immunity to a

prosecutor who allegedly coerced a potential witness into

presenting a fabricated story at Wearry’s trial.

Purporting to apply Imbler and Buckley, the court

rejected the prosecutor’s immunity bid on the ground that

he concocted “a wholly false narrative connecting Wearry

to the scene of the crime” and orchestrated “the

falsification of [the witness’s] statements.” Id. at 269 n.6.

According to the Fifth Circuit panel, those facts

“br[ought] Wearry’s case within the facts of Buckley,

which involved a conspiracy to manufacture witness

testimony,” even though “the prosecutors in Buckley

lacked probable cause to indict Buckley at the time they

fabricated the evidence, while … Wearry had already

been charged.” Id. at 268, 269 n.6.

Judge Ho filed a dubitante opinion, bemoaning the

inability to “reconcile [the majority’s decision] with

Cousin.” Id. at 273-74 (Ho., J., dubitante). He noted that

“Cousin expressly states that, if a prosecutor allegedly

conducts a witness interview with the ‘intent to secure

evidence that would be used in the presentation of the

state’s case at the pending trial of an already identified

suspect,’ the prosecutor is ‘entitled to absolute immunity

with respect to this claim.’” Id. at 274 (quoting Cousin, 325

F.3d at 635). Under Cousin, Judge Ho explained, “a

prosecutor accused of falsifying witness testimony is

entitled to absolute immunity if he does so (1) after

indictment or determination of probable cause, and (2)

with the intent of presenting that testimony at trial.” Id.

Judge Ho also noted that “a number of academic and legal

commentators have construed Cousin the exact same

way.” Id. at 275 (collecting materials).

Dissenting from denial of rehearing en banc, Judges

Jones, Smith, and Duncan observed that the majority

19

“opinion fatally conflicts with [the Fifth Circuit’s] twodecade old opinion in Cousin,” and “also conflicts with

significant sister circuit decisions.” Wearry, 52 F.4th at

263 (Jones, J., dissental). The dissental explained that “a

prosecutor who fabricates evidence by coercing a witness

to testify falsely at trial is acting in an ‘advocacy’ capacity

(not in an ‘investigative’ role) and is entitled to absolute

immunity when those activities occur post-indictment”—

a conclusion that “flows directly from governing Supreme

Court precedent.” Id. at 261 (citing Buckley, 509 U.S. at

269). The dissental also noted that “[t]he Second Circuit’s

precedent generally aligns with Cousin and applies

absolute immunity to the fabrication of testimony by the

prosecutor.” Id. at 262 n.5. Only “the D.C. Circuit’s

holding in Moore,” Wearry, and the Third Circuit’s test

conflict with those courts. Id. at 262.4

4. District courts and commentators likewise have

acknowledged and struggled with the split.

a. In Espinosa v. City & County of San Francisco,

No. C 11-02282 JSW, 2011 WL 6056545, at *2, *5 (N.D.

Cal. Dec. 6, 2011), for example, the district court denied

prosecutorial immunity at the motion to dismiss stage,

even though it “appear[ed] that the [underlying

prosecution] was beyond the investigatory phase and that

[the prosecutor] obtained the material witness warrants

to secure [his] testimony for trial.” The court explained

that it could not “say as a matter of law that [t]his conduct

[fell] entirely within [the prosecutor’s] role as an advocate,

rather than as an investigator or administrator.” Id. at *5.

Because Cousin and Wearry conflict, Cousin remains the binding

precedent in the Fifth Circuit. See Rios v. City of Del Rio, 444 F.3d

417, 425 n. 8 (5th Cir. 2006) (“The rule in this circuit is that where

two previous holdings or lines of precedent conflict the earlier

opinion controls and is the binding precedent in this circuit (absent

an intervening holding to the contrary by the Supreme Court or this

court en banc).”).

4

20

Comparing the Fifth Circuit’s approach in Cousin with

the Third Circuit’s approach, the court observed that

“out-of-circuit authority on this issue is in conflict.” Id. at

*2 & n.4; see Vargas v. Maranda, No. CV-F-08-1707

OWW/GSA, 2009 WL 1769849, at *5 (E.D. Cal. June 23,

2009) (“[T]here is conflicting out-of-circuit authority

affording absolute prosecutorial immunity to a prosecutor

securing a material witness warrant.”).

b. Likewise, as one observer noted shortly after the

Fifth Circuit diverged from the D.C. Circuit, “lower

courts have reached conflicting decisions on postprobable cause immunity.” Johns, Reconsidering

Absolute Prosecutorial Immunity, supra at 101

(contrasting Cousin with Moore). Circuits “are divided on

whether a prosecutor is entitled to absolute immunity

when she fabricates evidence or coerces a witness to

testify falsely and then uses that tainted evidence in a

judicial proceeding.” Id. at 56-57; see id. at 87-88 (“The

Court’s functional approach to prosecutorial immunity

has created conflicts and confusion as the lower courts

attempt to grapple with the difficulty of characterizing

prosecutorial misconduct and determining which

immunity applies.”). That scholar emphasized the split

again in 2011: “Under the current doctrine, drawing the

line between conduct entitled to absolute immunity and

conduct entitled to qualified immunity is a complicated

question that has generated multiple conflicting

decisions.” Margaret Z. Johns, Unsupportable and

Unjustified: A Critique of Absolute Prosecutorial

Immunity, 80 Fordham L. Rev. 509, 527 (2011).

Others have noted the consequences of the split,

observing, for example, that the doctrine “has inevitably

spawned confusion.” John C. Jeffries, Jr., The Liability

Rule for Constitutional Torts, 99 Va. L. Rev. 207, 223

(2013); see, e.g., Erwin Chemerinsky, Absolute

Immunity:

General

Principles

and

Recent

21

Developments, 24 Touro L. Rev. 473, 477 (2008) (noting

that “lower courts struggle” to determine “what

constitutes prosecutorial action versus what makes action

administrative or investigative”); Megan M. Rose, Note,

Endurance of Prosecutorial Immunity—How the

Federal Courts Vitiated Buckley v. Fitzsimmons, 37 B.C.

L. Rev. 1019, 1041 (1996) (“[T]he Supreme Court has still

provided no precise guidelines for determining whether a

prosecutorial act following the establishment of probable

cause to arrest is administrative or investigatory, or

whether it is advocatory.”); cf. Michael Avery, et al.,

Police Misconduct: Law and Litigation § 3:4 (“[W]hile

many decisions refer to the presence or absence of a

probable cause as a dividing line between investigatory

and prosecutorial (hence, immune) conduct, several

courts have specifically rejected such a bright line rule

and have found that prosecutors may engage in nonimmune ‘investigative’ conduct even after a formal

probable cause determination.” (citing Wearry, 33 F.4th

at 267-68 and Fogle, among others).

5. This “irreconcilable conflict” will not resolve itself.

Wearry, 52 F.4th at 263 (Jones, J., dissental). Absent this

Court’s intervention, “these issues will recur, to the

detriment of clear law, of honest prosecutors, and the

public interest.” Id. That outcome is unsustainable. The

conflict is ripe and ready for this Court’s review.

II.

THE COURT SHOULD REVISIT FOOTNOTE FIVE OF

BUCKLEY V. FITZSIMMONS

There is a simple way for the Court to resolve the

circuit split discussed above: revisiting the footnote in

Buckley that spawned the confusion. In footnote five of

Buckley, the Court seemed to be attempting to exempt a

narrow set of claims from absolute prosecutorial

immunity in extraordinary—yet unidentified—cases in

which a prosecutor steps into the role of an investigator

even after a probable cause determination has been made.

22

See Buckley, 509 U.S. at 274 n.5. In all the years since

Buckley, this Court has never applied the footnote,

endorsed it, or denied prosecutorial immunity for postcharge conduct.

Nevertheless, footnote five has generated a profusion

of misguided, inconsistent lower-court caselaw. The result

is that post-charge prosecutorial immunity means one

thing in some jurisdictions and something else in others.

Instead of drawing a clear line between actions entitled to

absolute immunity and those entitled to qualified

immunity, footnote five muddies the waters. And as this

case and the discussion above show, prosecutors are being

denied immunity for core prosecutorial advocacy—cases

in which the alleged misconduct did not remotely

resemble police investigative work. The Court should

either recede from Buckley’s dictum altogether or—at

very least—clarify that the theoretical exception for

“investigative” post-charge decisions by prosecutors is

vanishingly narrow.

A. The prosecutors in Buckley were sued over

conduct that occurred before the suspect was charged.

The case did not present the question of whether absolute

immunity insulates post-charge conduct because it did not

involve post-charge conduct. This Court held only that

prosecutors who fabricated false evidence during a precharge preliminary investigation and made false

statements at a press conference were not absolutely

immune. 509 U.S. at 275, 276-77. In so holding, the Court

embraced a “functional approach” to determining

whether absolute immunity applies to prosecutorial

conduct that happens before probable cause is

established. Id. at 269. Under that approach, absolute

immunity attaches for “activities [that are] intimately

associated with the judicial phase of the criminal process.”

Imbler, 424 U.S. at 430.

23

Buckley’s functional approach makes sense for precharge conduct because, before a defendant is identified

and charged, a prosecutor can act in ways unconnected to

a judicial proceeding. As Buckley noted, “[t]here is a

difference between the advocate’s role in evaluating

evidence and interviewing witnesses as he prepares for

trial, on the one hand, and the detective’s role in searching

for the clues and corroboration that might give him

probable cause to recommend that a suspect be arrested,

on the other hand.” 509 U.S. at 273. A prosecutor’s “role

in evaluating evidence and interviewing witnesses” differs

significantly from, say, “a prosecutor plan[ning] and

execut[ing] a raid on a suspected weapons cache.” Id. at

274. In Burns v. Reed, 500 U.S. 478 (1991), for example,

this Court concluded that a prosecutor was absolutely

immune for participating in a probable cause hearing that

led to the issuance of a warrant because he was acting as

an advocate in initiating criminal proceedings. Id. at 49192. But the same prosecutor was not immune for

providing police officers with legal advice during the

investigatory phase of the case, because that action was

too far divorced from the “judicial phase.” Id. at 493. The

Court noted that “[a]bsolute immunity is designed to free

the judicial process from harassment and intimidation

associated with litigation,” so it attaches only to “actions

that are connected with the prosecutor’s role in judicial

proceedings, not for every litigation-inducing conduct.”

Id. at 494.

Despite Buckley’s limited holding about pre-charge

immunity, however, the Court added, in dictum and in a

footnote, that “a determination of probable cause does not

guarantee a prosecutor absolute immunity for all actions

taken afterwards.” Buckley, 509 U.S. at 274 n.5. The

Court stated that “[e]ven after [the probable cause]

determination, … a prosecutor may engage in ‘police

24

investigative work’ that is entitled to only qualified

immunity.” Id.

That dictum has confused lower courts, leading to the

“irreconcilable conflict” discussed above. Wearry, 52

F.4th at 263 (Jones, J., dissental). With no guidance from

this Court, lower courts have been forced to draw their

own lines in each case instead of following a uniform rule.

Whitlock v. Brueggemann, 682 F.3d 567, 579 (7th Cir.

2012) (describing Buckley’s “murk[iness]”).

There is no need for this confusion. The rationale

underlying Buckley’s functional approach to pre-charge

conduct falls apart when applied to post-charge conduct.

Post-charge, a prosecutor’s only job is to build a case that

will establish a specific defendant’s guilt beyond a

reasonable doubt. To be sure, prosecutors often seek

evidence beyond what was sufficient to establish probable

cause at the charging stage. But they do so in preparation

for trial. In other words, once the charging decision is

made, every action a prosecutor takes in preparation for

trial is “intimately associated with the judicial phase of the

criminal process.” Imbler, 424 U.S. at 430. There is no

such thing as “investigative” post-charge prosecutorial

action. “To hold otherwise [would] mean[] that every time

a prosecutor prepares for trial and determines that an

additional piece of evidence is needed to prove the crime

beyond a reasonable doubt, he is acting in an investigative

role.” Pet. App. 30a (Shwartz, J., dissenting). This would

contravene the longstanding “recogn[ition] that

prosecutors engage in the work of an advocate outside the

courtroom too,” and would “essentially narrow[] the

advocacy work protected by absolute immunity to actions

in the courtroom.” Pet. App. 30a-31a (Shwartz, J.,

dissenting).5

Even the majority recognized this consequence of its rule, stating

that a prosecutor maintains immunity for identifying a “hole in the

5

25

The 31 years of disarray in the lower courts since

Buckley demonstrate that the functional approach is

untenable for post-charge, trial-preparation activities.

And “[c]ontinuing to articulate a theoretical exception

that never actually applies in practice offers false hope to

defendants, distorts the law, misleads judges, and wastes

the resources of defense counsel, prosecutors, and

courts.” Edwards, 593 U.S. at 272. This Court should

revisit footnote five to clarify that all post-charge

prosecutorial actions are entitled to absolute immunity,

or—at very least—that any exception is vanishingly

narrow.

B. “[N]o stare decisis values would be served by

continuing to indulge the fiction” that post-charge

prosecutorial acts can be investigative, because “[n]o one

can reasonably rely on a supposed exception” that this

court has never actually applied or endorsed. Id. at 275.

Indeed, revisiting or clarifying footnote five of Buckley

would not alter this Court’s precedent. It would “simply

acknowledg[e] reality and stat[e] the obvious,” id.: postcharge prosecutorial acts are entitled to absolute

immunity.

While this Court has repeatedly clarified when

absolute immunity applies pre-charge, see, e.g., Kalina v.

Fletcher, 522 U.S. 118, 130-31 (1997) (no absolute

immunity for acting as a witness in support of a warrant

application), and even weighed in on whether there is

absolute immunity for “certain administrative activities,”

including “supervision or training or information-system

management,” Van de Kamp v. Goldstein, 555 U.S. 335,

343-44 (2009) (holding that there is absolute immunity

when the “administrative obligation … is directly

connected with the conduct of a trial”), it has never denied

state’s case ahead of trial,” but loses that immunity for

“attempt[ing] to fill that hole.” Pet. App. 23a n.11.

26

prosecutorial immunity for a post-charge action, see id. at

343 (collecting post-Imbler absolute immunity decisions).

In reconsidering or clarifying footnote five, therefore, the

Court “need not and [will] not overrule any” of its own

“post-[Buckley] cases” that held that a prosecutor is

entitled to absolute immunity, because no such cases

exist. Edwards, 593 U.S. at 274.

On the flip side, Buckley’s dictum continues to vex

lower courts, to the detriment of both plaintiffs and

prosecutors. By leaving the door slightly ajar, this Court

has allowed “[a] large new ‘haystack’ of frivolous” suits

against prosecutors. Id. at 287 (Gorsuch, J., concurring)

(quoting Brown v. Allen, 344 U.S. 443, 537 (1953)

(Jackson, J., concurring)). That “haystack … mak[es] it

that much harder for courts to identify the meritorious

‘needle,’” id. at 287-88 (Gorsuch, J., concurring)—the rare

case in which a plaintiff has a claim against a prosecutor

who did act in an investigative capacity. As the conflict

among the lower courts shows, that “haystack just grew

too large” and the current doctrine is “unsustainable.” Id.

at 288 (Gorsuch, J., concurring). The only way to “sort[]

the hay from the needles,” id. at 289 (Gorsuch, J.,

concurring), is for this Court to intervene and revisit

footnote five.

III. THE QUESTIONS PRESENTED ARE IMPORTANT AND

WARRANT REVIEW

A. The questions presented are vastly important and

are potentially implicated in every criminal prosecution in

every state and territory. Local prosecutors across the

country initiate millions of criminal proceedings each

year. S. Gibson, et al., eds., Trial Court Caseload

Overview,

Court

Statistics

Project,

https://tinyurl.com/2kjm5vy5. In 2022 alone, prosecutors

in just 40 states initiated more than 12 million cases.

Individual prosecutors are often responsible for hundreds

of cases at a time. Adam M. Gershowitz & Laura R.

27

Killinger, The State (Never) Rests: How Excessive

Prosecutorial Caseloads Harm Criminal Defendants,

105 N.W. L. Rev. 261, 268-70 (2011). Many defendants

who are ultimately not convicted surely would relish the

opportunity to seek damages from the prosecutors. Free

to proceed unchecked, such actions would impede

prosecutors from performing their sworn duty. Imbler,

424 U.S. at 423. Absolute immunity is the gate that

prevents acquitted defendants from drowning

prosecutors in vexatious retaliatory litigation. Id. at 425.

Common-law prosecutorial immunity stems from the

“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. “The

office of public prosecutor is one which must be

administered with courage and independence”—a tall

order “if the prosecutor is made subject to suit by those

whom he accuses and fails to convict.” Id. Curtailing

prosecutorial immunity “would open the way for

unlimited harassment and embarrassment of the most

conscientious officials by those would profit thereby.” Id.

(quotation marks omitted). “The apprehension of such

consequences would tend toward great uneasiness and

toward weakening the fearless and impartial policy which

should characterize the administration of [the office of the

public prosecutor.] The work of the prosecutor would thus

be impeded, and we would have moved away from the

desired objective of stricter a[nd] fairer law

enforcement.” Id. at 424.

A functioning criminal justice system requires

prosecutors who can make impartial decisions based on

their experience, reasoned judgment, and assessment of

the evidence. The Third Circuit’s opinion, if allowed to

stand, would chip away at those pillars. Prosecutors would

28

be forced to act with a cloud of potential litigation looming

over each decision they make, from interviewing

witnesses to discussing cases with investigating officers.

In fact, the majority opinion below contemplates that

prosecutors will face that threat on a day-to-day basis.

According to the majority, “prosecutors who identify a

hole in the state’s case ahead of trial” forfeit their

immunity if they “attempt to fill that hole by affirmatively

searching for a new witness.” Pet. App. 23a n.11. The

consequences of that rule are astonishing. If the

laboratory technician is unavailable to testify, opening a

“hole” in the prosecution’s case, the prosecutor may fill it

with an alternate witness only by forfeiting prosecutorial

immunity. If the prosecutor hires a forensics expert to

testify, it is open season on the prosecutor if the defendant

alleges that the prosecutor “sought out” the expert. The

list could go on.

B. Prosecutorial

immunity

benefits

wrongly

convicted criminal defendants by giving prosecutors the

breathing room to confess error, an essential element of a

“well-ordered society.” See Young, 315 U.S. at 259. “The

public trust reposed in the law enforcement officers of the

government requires that they be quick to confess error

when, in their opinion, a miscarriage of justice may result

from their remaining silent.” Id. at 258. When a

prosecutor is aware of evidence “which satisfies him the

defendants are innocent of the crime of which they were

convicted … it [is] manifestly his duty to confess error.”

Parlton v. United States, 75 F.2d 772, 773 (D.C. Cir. 1935).

“The public interests and the principles of justice would

be satisfied with nothing less.” Id.; see also, e.g., ABA

Model Rules of Professional Conduct, Rule 3.8—Special

Responsibilities of a Prosecutor.

If allowed to stand, the decision below would reduce

the likelihood that prosecutors will own up to mistakes or

misconduct. It is, regrettably, an inevitable consequence

29

of our criminal justice system that some innocent people

will be convicted. There have been over 3,000

exonerations of innocent people convicted of crimes since

1989. The National Registry of Exonerations, University

of Michigan Law School, https://tinyurl.com/4nmtx66w.

Confession of error is crucial to many of these

exonerations.6

To

encourage

error-correction,

prosecutors need the assurance that error-confession will

not entail civil liability.

C. The Third Circuit’s rule allows plaintiffs to simply

plead around prosecutorial immunity by alleging that the

prosecutor “investigated” post-probable cause. In fact,

that is exactly what has happened in districts within the

Third Circuit since the decision in this case.

Relying on the decision below, the Eastern District of

Pennsylvania has already denied prosecutorial immunity

for a post-charge, pre-trial witness interview, because it

was “not clear” from the complaint that the prosecutor

was acting as an “advocate” under the majority’s

reasoning. Carson v. City of Philadelphia, No. 23-2661,

2024 WL 2057398, at *5 (E.D. Pa. May 8, 2024). In Carson,

the plaintiff alleged that, before his trial, the prosecutor

had “offered [a potential witness] a reduced sentence on

her probation violation if [she] testified.” Id. at *4. That

witness later recanted. Id. at *4. Relying on the decision

below, the district court denied immunity because “there

[we]re no factual allegations regarding the circumstances

of the interview, e.g., whether [the prosecutor] ‘went

See Jon B. Gould & Richard A. Leo, The Path to Exoneration, 79

Alb. L. Rev. 325, 345 (2016) (prosecutors and their partners in law

enforcement are “a guiding force” in 22% of exonerations); Andrew

Hessick, The Impact of Government Appellate Strategies on the

Development of Criminal Law, 93 Marq. L. Rev. 477, 483–84 (2009)

(courts “almost always” credit confessions of error); Young v.

United States, 315 U.S. 257, 258 (1942) (confession of error “is

entitled to great weight”).

6

30

looking for a new witness to provide false testimony,’ or

was interviewing a witness ‘who ha[d] been located and

identified by investigators.’” Id. (quoting Pet. App. 18a

(alterations in original)). In other words, the prosecutor

was not entitled to immunity—and thus subject to

discovery—because the ambiguous allegations in the

complaint meant that the prosecutor might have

“investigated” under the Third Circuit’s test.

As the fallout from the decision below underscores,

“uncertain immunity is little better than no immunity at

all.” Filarsky v. Delia, 566 U.S. 377, 392 (2012). “One of

the purposes of [immunity] is to protect public officials

from the ‘broad-ranging discovery’ that can be ‘peculiarly

disruptive of effective government.’” Anderson v.

Creighton, 483 U.S. 635, 646 n.6 (1987) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982)). Subjecting

prosecutors to discovery undermines the principle that

absolute immunity is an “entitlement not to stand trial or

face the other burdens of litigation.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985) (emphasis added); see Buckley,

509 U.S. at 283 (Kennedy, J., concurring in part and

dissenting in part). Because the Third Circuit flouted that

principle, this Court must once again “decline to endorse

a rule of absolute immunity that is so easily frustrated.”

Rehberg, 566 U.S. at 370.

D. This case is an excellent vehicle for the Court to

clarify the scope of prosecutorial immunity. There are no

disputed facts. The questions presented are pure legal

issues that petitioner fully preserved below. Indeed,

prosecutorial immunity is the sole issue on appeal. There

is no dispute that this question was outcomedeterminative and that no antecedent factual or legal

issues would prevent the Court from resolving it.

The Third Circuit has muddied the waters on a

question essential to the application of prosecutorial

immunity. Without this Court’s intervention, “these

31

issues will recur, to the detriment of clear law, of honest

prosecutors, and the public interest.” Wearry, 52 F.4th at

264 (Jones, J., dissental). The lack of clarity “could be

cured, or at least minimized, by more clearly defining the

boundaries of prosecutorial and investigative conduct.”

Alan K. Chen, The Ultimate Standard: Qualified

Immunity in the Age of Constitutional Balancing Tests,

81 Iowa L. Rev. 261, 344 (1995). This case presents the

ideal opportunity for the Court to clarify those

boundaries.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

* Admitted only in the

District of Columbia

and Maryland; practicing law in New

York under the supervision of lawyers in

the firm who are

members in good

standing of the New

York bar.

JUNE 2024

ANDREW T. TUTT

Counsel of Record

MATTHEW L. FARLEY

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

NICOLE L. MASIELLO

WILLIAM T. SHARON

AUSTIN P. REAGAN*

TESS C. SAPERSTEIN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019