Petition — Goodwin v. Briggs

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re | Suptome Cour Court, Ug

FILE fi |

| MAR 31 978

L mi

CHAEL RODAK, JR. CLERK

No, — . ¢- 1 40 1

it the Supreme Court of the United States

OcToBeR TERM, 1977

Guy GoopWIN, PETITIONER

JOHN Briaas, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. McCREE, J Pes

Solicitor General,

BARBARA ALLEN BABCOCE,

Assistant Attorney General,

ROBERT E. KOPP,

BARBARA L, HERWIG,

Attorneys,

Department-of J ustice,

Washington, D.C. 20530

INDEX

Page

CR BER c ccc cenqnensencandintinisiisnasdtineines 1

TTI sasistinshcisaiiienctnnspeniniciaimnigndinmminnitlitivabintesateilickens 1

I a crncorerensteitennencinainiocininiceniabiiieiblndiaian 2

> -eguitintnttionsisonnadimcnanmensitiinnndianindiine 2

Reasons for granting the writ._...........-....--.---.- 7

SR eiicitinitigiettiencienmeatetemnmnccintitibdiicsdsesildiineintdiions 20

IIE Bicticcncdanncagsincnsseecnenidinmiinnailiien 1A

SOI Citccemancnenncinquienaenttimbanritanmiitigs 114A

I peresenmnenigncnmenscitititenedestintes 119A

REE Bc cccncnncescnesnnmenesentcuswtanuntbsndiiten 120A

REED Bwececenceynacaagewequeseqguéananneciinvetiins 121A

CITATIONS

Cases:

Abney v. United States, 431 U.S. 651__-.-----_--_- 7, 18,19

Brawer v. Horowitz, 535 F. 2d 830__.......-...--..-. 19

Cawley v. Warren, 216 F. 2d 74_........-...------.- 9

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

I -ain<iceccadiieiicicneraadneinpethinatmeeniniatninilsestinintiaentiaeaiiintimasenees 7,18

Cooper v. O'Connor, 99 F. 2d 135, certiorari denied

Es Se Oe eee 9

Gregoire v. Biddle, 177 F. 2d 579, certiorari denied

RE eee ee ae 18

Imbler v. Pachtman, 424 U.S. 409__--------.-------- 6,

7, 9, 10-14, 15, 16, 17, 18

Laughlin v. Garnett, 138 F. 2d 931, certiorari denied,

EEE, ST: Wee annsiessilimniiiiniatsarchtiasamishidiieninestiduainibebiindaes 9

Laughlin v. Rosenman, 163 F. 2d 838_...----------- 9

Stump v. Sparkman, No. 76-1750, decided March 28,

NE TELE LEIS SLD A 12, 18

Yaselli v. Goff, 275 U.S. 503, sicaing 12 F. 2d

"SESE a ne aie nice EE, 8-9, 11, 15, 18

Constitution, statutes, and rule:

United States Constitution :

ee oer 5 |

Fourth Amendment..............-<.<-i6-<.-<<- 5 °

BiG Asmendinett..~ 22.22 nns i cnsecoees 5 | gn the Supreme Gourt of the Anited States

Sixth Amendment ........--..---------------- 5

Eighth Amendment--_------------------------- 5 OctToB ERM

Ninth Amendment--.-.---.--------------------- 5 er T ? 1977

18 U.S.C. 231--.-.------------------------------ 2

18 U.S.C. 371---------------.------------------ 3

0 Ens I 3 “No.

18 U.S.C. 2101...---------.-—-----+----------- 2

08 TREES, SONI once cew cece wnccnencomieie 6 Guy GoopwIN, PETITIONER

68 CIEE, Bente nenncnwneenenaiseiimiactedt 5 .

98 U.S.C. 1332.----------------------------+-- 5

ies SR as abacinle 5 ; JOHN BricGs, ET AL.

98 U.S.C. 1651.-------------—----------------- 5

OE EL ELE TS 5 } 7

EEE 5 PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

ie A no eniemnnniitndate 10 COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Fed. R. Crim. P. 6(a)------------------------- 15

| ~The Solicitor General, on behalf of Guy Goodwin,

| petitions for a writ of certiorari to review the judg-

| ment of the United States Court of Appeals for the

District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra, pp. 1A-113A) is not yet reported. The opinion

of the district court (App. B, infra, pp. 114A-118A)

j is reported at 384 F. Supp. 1228.

| JURISDICTION

| The judgment of the court of appeals (App. C,

infra, p. 119A) was entered on September 21, 1977.

(1)

A timely petition for rehearing with a suggestion for

rehearing en banc was denied on December 1, 1977

(Apps. D and E, infra, pp. 120A-121A). On Febru-

ary 21, 1978, the Chief Justice extended the time for

filing a petition for a writ of certiorari to and includ-

ing March 31, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the absolute immunity of a prosecutor

from civil damage suits covers actions taken in the

conduct of grand jury proceedings.

2. Whether the court of appeals improperly under-

took to review a ruling of the district court adverse

to petitioner, from which petitioner had not appealed.

3. Whether, if the court properly considered the

issue, it erroneously concluded that petitioner did

not have absolute immunity as a witness for an

allegedly false testimonial statement he gave under

oath in the courtroom.

STATEMENT

This action arises out of a suit for damages against

four federal officials—three federal prosecutors and

a Special Agent of the Federal Bureau of Investiga-

tion—for their alleged violation in a grand jury pro-

ceeding of respondents’ constitutional rights (App.

B, infra, p. 114A).

1. On July 7, 1972, petitioner Guy Goodwin, an

attorney with the Internal Security Division of the

Department of Justice, was appointed as a Special

Attorney to conduct grand jury proceedings eonsider-

ing alleged violations in the Northern District of

Florida of the anti-riot Jaws (18 U.S.C. 2101 and

231), Title XI of the Organized Crime Control Act

of 1970 (18 U.S.C. 844), conspiracy (18 U.S.C. 371),

and other federal criminal statutes, and to assist in

the trial of indictments resulting from those proceed-

ings (App. A, infra, p. 2A).

About the time of petitioner’s appointment, sub-

poenas were issued and served upon more than 20

members of a group known as Vietnam Veterans

Against the War/Winter Soldier Organization

(VVAW/WSO), directing them to appear on July 10,

1972, in Tallahassee, Florida, before a federal grand

jury that had been hearing witnesses during the pre-

ceding week (App. A, infra, p. 3A). According to the

complaint (Complaint, 111), 21 of the persons sub-

poenaed, who were scattered at various locations

throughout the country and many of whom did not

know one another, were represented by nine attorneys

in connection with the grand jury proceedings.

Rumors that VVAW/WSO had been infiltrated by

the police or the FBI led some of the attorneys to

move the court in charge of the grand jury to compel

the government to disclose whether there were any

agents or informants among the witnesses whom those

attorneys represented. On July 12, during a hearing

on that motion, one of the attorneys orally listed eight-

een persons purportedly represented by counsel join-

ing the motion (App. A, infra, pp. 3A-4A). Among

them was Emerson L. Poe, although it is not clear

from the colloquy that followed whether Poe was

alleged to be a client, or, if so, who assertedly was

representing him. See App. A, infra, pp. 53A-55A,

n. 32."

The following morning, instead of ordering peti-

tioner to answer the inquiry by affidavit, as counsel

for the witnesses suggested, the court ordered peti-

tioner to take the stand and be sworn (App. A, tnfra,

p. 4A). The court then asked petitioner one question

(id. at 4A).

Tue Court. Mr. Goodwin, are any of [these]

witnesses represented by counsel agents or in-

formants of the United States of America?

Tre Witness. No, Your Honor.

Tue Court. You can step down.

The court denied counsel’s request to question peti-

tioner further on this matter (tbid.).

Later that same day, July 13, six of the respondents

were indicted by the grand jury.’ On August 7, 1972,

respondent Briggs and others were subpoenaed to ap-

pear before a successor grand jury the following day.

On October 18, 1972, respondents Briggs and Michel-

son were indicted and the six respondents who pre-

viously had been indicted were reindicted (App. A,

infra, pp. 4A-5A).

‘ See also Tr. of July 12, 1972, pp. 2-23, portions of which are

reproduced as Exhibit A to the Complaint.

? Two other respondents wer. incarcerated for contempt of court

for refusing to answer questions before the grand jury on July 13,

1972 (App. A, infra, pp. 4A-5A and n. 1). The contempt convic-

tions were reversed on September 25, 1972 Beverly v. United

States, 468 F. 2d 732 (C.A. 5).

Trial of those respondents commenced on July 31,

1973. On August 17, 1973, Jencks Act material was

given to the respondents which disclosed that Emer-

son L. Poe was an informant for the FBI. On August

31, 1973, respondents were acquitted in the criminal

case (App. A, infra, pp. 5A-G6A).

2. In. May 1974 respondents filed suit against (1)

petitioner, (2) William H. Stafford, then United

States Attorney for the Northern District of Florida,

and Stuart J. Carrouth, an Assistant United States -

Attorney, both of whom had assisted petitioner in

the grand jury proceedings, and (3) Claude Meadow,

a Special Agent of the Federal Bureau of Investi-

gation. Jurisdiction was based upon 28 U.S.C. 1331,

1332, 1343, 1651, 2201 and 2202. The complaint alleged

that petitioner had violated respondents’ First,

Fourth, Fifth, Sixth, Eighth, and Ninth Amendment

rights by knowingly giving false information to the

court when he denied the presence of government in-

formants or agents among the witnesses subpoenaed to

testify before the grand jury (Complaint, 1131, 34).

The complaint also alleged, inter alia, that the grand

jury would not have indicted respondents if it had

known of petitioner’s alleged perjury and that the con-

cealed presence of Poe in the defense camp deprived

the plaintiffs of their Sixth Amendment right to coun-

sel (td. at 1119, 31). The complaint sought $100,000

punitive and $50,000 compensatory damages for each

respondent from the defendants in their individual

capacities; it also sought declaratory relief and an

order appointing a special prosecutor to prosecute

petitioner and his co-defendants criminally.

Petitioner moved to dismiss, claiming absolute im-

munity from suit under the doctrine of quasi-judicial,

or prosecutorial immunity. The district court denied

the motion, holding that the alleged perjury, if

proven, would be outside the scope of the prosecutor’s

authority, and hence not immune (App. B, tmfra, pp.

114A-118A). Petitioner then moved to dismiss the

action on the basis of witness immunity. The district

court denied that motion as well (App. A, infra, pp.

6A-7A).

On petitioner’s motion to certify both questions

for interlocutory appeal pursuant to 28 U.S.C. 1292

(b), the district court certified only the question of

prosecutorial immunity.’ Accordingly, petitioner filed

in the court of appeals a motion for permission to

appeal the district court’s prosecutorial immunity

ruling; he did not file a notice of appeal from the

witness immunity ruling (App. A, infra, p. TA).

The court of appeals allowed the appeal and a di-

vided panel affirmed, holding that petitioner’s alleged

actions were ‘“‘outside the confines of these prosecu-

torial activities’ for which there is absolute immunity

under Imbler v. Pachtman, 424 U.S. 409 (App. A,

infra, p. 10A). The court concluded that a grand

jury’s ‘‘investigative’’ activities may be differentiated

* The district court dismissed the action against the other three

defendants, for lack of in personam jurisdiction, lack of venue,

and insufficiency of service of process. In a separate appeal from

that order (Briggs v. Goodwin (Stafford, et al.], No. 75-1578,

decided September 21, 1977), the court of appeals reversed, and

ordered the complaint reinstated as to those defendants (App. A,

infra, p. 6A, n. 3).

from its “deliberative” activities (t.e., its deciding

whether to return an indictment) ; that a prosecutor

assisting the grand jury’s investigative activities is

not performing an “advocacy’”’ role and is therefore

entitled only to a qualified immunity; and that peti-

tioner’s alleged perjury was committed in the course

of the grand jury’s investigative activities because,

inter. alia, the grand jury issued indictments despite

the fact that none of the subpoenaed witnesses testi-

fied (App. A, infra, pp. 21A-30A). The court also

concluded that qualified immunity was appropriate

because the other safeguards against prosecutorial

misconduct referred to in Imbler (e.g., criminal and

professional sanctions) had not been applied in this

case since, to the court’s knowledge, no inquiry or ac-

tion had been taken with respect to petitioner’s al-

leged misconduct (id. at 28A-29A).

In addition, the court held that petitioner was not

entitled to witness immunity, although the district

court had not certified its ruling on that question for

interlocutory appeal, and petitioner had not appealed

the ruling or briefed the issue.“ The majority held

that petitioner was not acting as a witness giving tes-

timony, but was acting “as a prosecutor managing and

administering an investigation’’, and therefore could

not claim immunity as a witness (id. at 34A-39A).

Judge Wilkey, dissenting, concluded that both pros-

*The court believed that the question was before it pursuant

to the collateral order exception to the final judgment rule. Cohen

v. Beneficial Industrial Loan Corp., 337 U.S. 541; Abney v.

United States, 431 U.S. 651 (App. A, infra, p. 32A).

ecutorial and witness immunity should protect peti-

tioner in this case (App. A, infra, pp. 39A-113A).

REASONS FOR GRANTING THE WRIT

1. This case presents important questions concern-

ing the scope of immunity that federal prosecutors

have from suit for damages for alleged constitutional

violations committed in the course of conducting

grand jury proceedings. The decision of the court of

appeals exposes prosecutors to significant risks in

connection with a major aspect of their duties, and

conflicts with decisions of this Court.

a. The limitations on the absolute immunity of a

prosecutor imposed by the court of appeals’ decision

is contrary to this Court’s decision in Yaselli v. Goff,

275 U.S. 503, affirming 12 F. 2d 396 (C.A. 2), which

presented virtually identical facts but which the court

of appeals did not cite. Yaselli involved a suit against

a Special Assistant to the Attorney General who had

been appointed to assist in the investigation and pros-

ecution of certain violations of federal law. The suit

was brought by a person who had been indicted by a

grand jury and later acquitted by directed verdict.

The complaint alleged that the defendant maliciously

introduced false and misleading evidence before the

grand jury, poisoned the minds of the grand jurors

against plaintiff, and induced the grand jury to indict

him (12 F. 2d at 397). The court of appeals ruled

(td. at 406) : a

In our opinion the law requires us to hold

that a special assistant to the Attorney General

of the United States, in the performance of the

duties imposed upon him by law, is immune

from a civil action for malicious prosecution

based on an indictment and prosecution, al-

though it results in a verdict of not guilty ren-

dered by a jury. The immunity is absolute, and

is grounded on principles of public policy.

This Court affirmed per curiam, 275 U.S. 503.° |

This Court reaffirmed Yaselli in Imbler v. Pacht-

man, supra, citing it several times with approval. 424

U.S. at 422, 424, 428.

Yaselli controls the instant case. Here, as in Yaselli,

the complaint alleges that the prosecutor induced the

grand jury to indict the respondents by failing to

apprise the grand jury of allegedly material facts.

The only possible difference is that the prosecutor in

Yaselli was alleged to have affirmatively presented

false information, whereas the.allegations of the com-

plaint in this case amount to the claim that petitioner

caused injury to the respondents by withholding cer-

tain true information (the government’s use of an

informant) in the course of conducting a grand jury

proceeding. If that difference is material, it provides

an even stronger ground for immunity here; there is

no basis in publie policy for conferring immunity

* Numerous other cases have held that a prosecutor’s actions in

connection with presentation of evidence to a grand jury are en-

titled to absolute immunity. See, ¢.g., Cawley v. Warren, 216 F. 2d

74 (C.A. 7); Laughlin v. Rosenman, 163 F. 24 838 (C.A.D.C.) ;

Laughlin v. Garnett, 138 F. 2d 931 (C.A.D.C.), certiorari denied,

322 U.S. 738; Cooper v. O'Connor, 99 F. 2d 135 (C.A.D.C.),

certiorari denied, 305 U.S. 643.

when the prosecutor presents false evidence to the

grand jury but denying it when he is alleged only

to have failed to present certain true information—

particularly information of dubious materiality to the

grand jury’s decision.

b. The decision below is also contrary to the

principles established in Imbler v. Pachtman, supra.

In Imbler, the Court held that a prosecutor was ab-

solutely immune from a suit for damages under 42

U.S.C. 1983 alleging that the prosecutor had know-

ingly presented false evidence and had withheld ex-

culpatory evidence in a criminal trial. The Court

based its findings of immunity on (424 U.S. at

422-423; footnote omitted) :

the same considerations [of public policy] that

underlie the common-law immunities of judges

and grand jurors acting within the scope of

their duties. These include concern that harass-

ment 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 in-

dependence of judgment required by his public

trust.

Although the Court recognized that a prosecutor

may have duties that ‘‘ecast him in the role of an ad-

ministrator or investigative officer rather than that

of advocate” (424 U.S. at 4380-431), it concluded

that Pachtman’s activities were entitled to absolute

immunuity because they ‘‘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’’ (id. at 430).

The Court in Imbler also recognized that the ab-

solute immunity applies not only to the prosecutor’s

conduct during a trial but also to numerous pre-

indictment activities, including particularly the pres-

entation of evidence to a grand jury. Thus the Court

discussed Yasellt with approval, and also stated (424

U.S. at 431, n. 33):

We recognize that the duties of the prose-

cutor in his role as advocate for the State in-

volve actions preliminary to the initiation of a

prosecution and actions apart from the court-

room. A prosecuting attorney is required con-

stantly, in the course of his duty as such, to

make decisions on a wide variety of sensitive

issues. These include questions of whether to

present a case to a grand jury, whether to file

an information, whether and when to prose-

cute, whether to dismiss an indictment against

particular defendants, which witnesses to eall,

and what other evidence to present.

Indeed, in discussing the historical and policy reasons

supporting absolute immunity, the Court noted that

‘“‘Tt]}he function of a prosecutor that most often in-

vites a common-law tort action is his decision to

initiate a prosecution, as this may lead to a suit for

malicious prosecution if the State’s case misfires.”’

424 U.S. at 421.

The conduct of petitioner here challenged was “in-

timately associated with the judicial phase of the

criminal process” and was part of those functions ex-

pressly recognized by Imbler as entitled to absolute

immunity. It was intimately connected with the tradi-

tional prosecutorial role of deciding whether “to * * *

initiatfe] * * * a prosecution,” and of determining

“which witnesses to call, and what other evidence to

present” to the grand jury in seeking indictments; in-

deed, he was in charge of the prosecution’s case. Those

decisions and functions necessarily included deeiding

what information to present to the grand jury, other

witnesses and the supervising court concerning the evi-

dence and witnesses presented. When counsel for some

of the witnesses sought to discover whether there were

any informants among their purported clients, peti-

tioner was required by the court to answer that in-

quiry in his role as chief prosecutor, and further, to

make an immediate decision on a clearly “sensitive

issu[e].’’* In short, petitioner was not acting as an

° The circumstances of the inquiry indicate that petitioner was

faced not only with the decision of how to respond without ex-

posing a source of information to possible targets of the grand

jury proceeding but also with the problem of interpreting a ques-

tion whose assumptions were by no means clear. As Judge Wilkey

noted in dissent (App. A, infra, pp. 53A-55A, n. 32), the tran-

script of the hearing reveals considerable confusion, even among

counsel, as to which witnesses they claimed to represent and par-

ticular uncertainty as to the status of Poe (Tr. of July 12, 1972,

pp. 2-23). While that uncertainty might well present petitioner

with a factual defense if he is forced to go to trial, it also illus-

trates the kind of discretionary decisions that prosecutors regularly

are required to make quickly in connection with grand jury pro-

ceedings and that call for protection of absolute immunity.

administrator or an investigator, but as an officer in

charge of a proceeding by an arm of the court and

under the control of the court, and his actions were

those that only a prosecutor could perform.’

Moreover, the considerations of public policy rec-

ognized in Imbler for absolute immunity apply equal-

ly in this context. The presentation of evidence to a

grand jury is a major and integral part of a prosecu-

tor’s functions. The “concern that harassment by un-

founded litigation would cause a deflection of the pro-

secutor’s energies from his public duties, and the pos-

sibility that he would shade his decisions instead of

exercising the independence of judgment required by

his public trust” (424 U.S. at 423) is especially acute

for prosecutors conducting grand jury proceedings,

who are in a particularly vulnerable position to incur

the resentment of those who are prosecuted.

_ A prosecutor presenting evidence to a grand jury

is constantly required to make decisions in the public

interest among a wide range of choices. In that con-

text particularly, the threat of suit if he makes a mis-

take can only discourage the kind of courageous deci-

sion-making the public interest requires. And in that

* As this Court recently held in the related context of judicial

immunity, “the factors determining whether an act by a judge is

a ‘judicial’ one relate to the nature of the act itself, i.c., whether

it is a function normally performed by a judge, and * * * whether

[the parties] dealt with the judge in his judicial capacity.” Stump

v. Sparkman, No. 76-1750, decided March 28, 1978, slip op. 12.

Applied here, that principle demonstrates that petitioner’s action

was one performed in his capacity as a prosecutor.

context, the Court’s observations in Imbler are espe-

cially pertinent (424 U.S. at 425-426) :

Frequently acting under serious constraints

of time and even information, a prosecutor in-

evitably makes many decisions that could en-

gender colorable claims of constitutional

deprivation. Defending these decisions, often

years after they are made, could impose unique

and intolerable burdens upon a prosecutor

responsible annually for hundreds of indict-

ments and trials.

In short, here as in Imbler, the public interest re-

quires that the proper safeguards against the miscon-

duct of prosecutors performing their traditional

functions must lie in the sanctions of the criminal law

and of judicial and professional discipline, and not in

civil damage actions brought by those against whom

the prosecutor decided to proceed.*

ce. The court of appeals’ contrary decision is based

on an erroneous distinction between a grand jury’s

“investigative” and “deliberative”’ activities (App. A,

* This Court has pending before it a number of cases presenting

the issue of the immunity of other government officials in various

contexts. Butz v. Economou, No. 76-709, argued November 7,

1977; Powell v. Dellums, No. 77-955 (petition for certiorari filed

January 3, 1978); Eapeditions Unlimited Aquatic Enterprises,

Ine. v. Smithsonian Institution, No. 76-418 (petition for certiorari

filed September 22, 1976). Many of the same public policy con-

siderations presented in those cases apply in this context as well.

But the immunity of prosecutors performing their traditional

functions has independent common-law roots and is supported

by considerations unique to the prosecutor’s status and functions,

including his particular exposure to lawsuits by persons whose

enmity the prosecutor has incurred by the very performance of

his duties.

infra, pp. 27A-28A).° Such a distinction is unfounded

and unworkable. As Judge Wilkey pointed out in dis-

sent (td. at 68A-78A), there is no meaningful delinea-

tion between the grand jury’s functions as a purely

investigative body on the one hand and a purely

deliberative body on the other—at least none that

would justify different degrees of immunity for the

prosecutor conducting the grand jury proceeding. A

grand jury’s principal function is deciding whether

or not to return indictments; its investigative activi-

ties are part of and in furtherance of its deliberative

functions. For unless and until the grand jury has

developed all the relevant facts, it is in no position to

decide whether or whom to indict. Even in situations

(unlike this case) in which the grand jury has not

focused its suspicion on any individuals, its considera-

tion of witnesses and evidence is necessarily related

to, and an integral part of, its deliberative functions.

Under the court of appeals’ distinction, it would —

usually be impossible for prosecutors conducting

grand jury proceedings to know whether any par-

ticular action or decision was part of the grand jury’s

“investigative” or “deliberative’’ function, since it

could almost always be characterized both ways. The

* Thus, the court said (App. A, infra, pp. 27A-28A) :

“The grand jury was to function in the first instance as an in-

vestigative tool, rather than in its more familiar guise as a de-

liberative body deciding whether to return indictments for specific

crimes on the basis of evidence gathered and presented by a public

prosecutor. The grand jury proceeding in this case was designed

as a broad scale investigation into possible — activity by the

VVAW or its members.”

237-916—-78——2

resulting uncertainty would seriously undermine the

very purpose of the immunity established in Imbler

and Yaselli, which was to provide prosecutors with

the security necessary for independent and coura-

geous decision-making in discharging their public

responsibilities.”

Even if there were a valid distinction between a

grand jury’s investigative and deliberative activities,

the court of appeals erroneously concluded that pe-

titioner’s conduct was in connection with the former

and not the latter." The court overlooked the fact that

indictments were returned against six of the re-

spondents later the same day on which petitioner

effect of eliminating absolute immunity for pre-indictment ac-

tivities altogether. If the court intended the grand jury’s “de-

liberative” function to be limited to its actual decision whether to

return an indictment, the prosecutor is excluded from the grand

jury at that stage. See Fed. R. Crim. P. 6(a). Thus a prosecutor

would never have absolute immunity for his actions in grand jury

proceedings, contrary to the teaching of this Court in Yaselli and

I mbler. i

"* As “evidence” for that conclusion, the court observed (App. A,

infra, p. 28A):

“First, many more VVAW members were subpoenaed to appear

before the grand jury than were ever indicted. Second, the indict-.

ments which the Government did obtain were returned despite

the fact that none of the VVAW members subpoenaed actually

testified. Third, appellee Briggs was subpoenaed a month after

the original group of subpoenas was issued, and appellees Briggs

and Michelson were indicted more than three months after ap-

pellant’s investigation began.”

We do not understand how this “evidence” establishes that the

grand jury was performing an investigative rather than a delibera-

tive function. The fact that subpoenaed witnesses do not testify

or are not indicted does not demonstrate that the grand j jury did

not subpoena them for the purpose of assisting its deliberations.

testified." Moreover, the complaint itself links. peti-

tioner’s testimony to the grand jury’s deliberative

function, by alleging that the grand jury would not

have returned indictments if it had known the truth

about Poe (Complaint, 1119, 31).

Finally, the court erred in basing its decision in

part on the conclusion that the other safeguards

against prosecutorial misconduct referred to in Imbler

and other cases—e.g., criminal sanctions and judicial

and professional discipline—are inadequate protec-

tion against petitioner’s alleged misconduct because,

the court assumed, there had been no official inquiry

into petitioner’s conduct (App. A, infra, pp. 28A-

29A). In determining the scope of immunity, the

question is whether procedures are available for deal-

ing with misconduct, not whether they were invoked

in the particular case. In Imbler, for example, there’

was no showing that the prosecutor had in fact been

subjected to discipline or inquiry; rather the Court’s

decision was based on the availability of such sanc-

tions as providing an adequate restraint on prose-,

cutors in general.

Moreover, there is no basis for the court of appeals’

assumption that there was no official inquiry into

~ # That fact alone refutes the court’s s assumption that the grand

jury was not acting “as a deliberative body deciding whether to

return indictments for specific crimes on the basis of evidence

gathered and presented by a public prosecuivr” (App. A, infra,

p. 27A). Moreover, there is no basis for the court’s s assuniptioh that

the proceeding “was designed as a broad scale investigation into’

possible illegal activity of the VVAW or its members” (id. at

28A), and if that assumption is relevant, it is contrary to fact.

petitioner’s conduct. Indeed, as we informed the court

in our petition for rehearing, if the issue were

relevant, the facts are contrary to the court’s

assumption.”

d. Although the court of appeals erred in conclud-

ing that petitioner’s actions were not part of prosecu-

torial functions entitled to absolute immunity, it cor-

rectly rejected the argument pressed by respondents

and accepted by the district court (see App. B, infra,

p. 117A) that petitioner was entitled only to qualified

immunity because perjury is not an act within the

prosecutor’s authority. As the court of appeals noted

(App. A, infra, p. 9A), the district court’s theory

“would completely abrogate the doctrine of immu-

nity,” since a prosecutor is never authorized to engage

in misconduct. See also Gregoire v. Biddle, 177 F, 2d

579, 581 (C.A. 2), certiorari denied, 339 U.S. 949.

Moreover, Yaselli and Imbler rejected any such limi-

tation on immunity, since the allegations against the

prosecutors in those cases—knowing presentation of

false testimony—amounted to allegations of suborn-

ing perjury. Rather, as those cases recognize, the im-

23 Thus, we stated (Pet. for. Reh. 9, n. 4) :

“However, if the Court believes the point relevant, Goodwin is pre-

pared to prove that the district court in Florida directed an ex-

planation from him for his conduct, and Goodwin supplied an

answer which satisfied the court. Consequently the district court

did not refer the matter to either the bar association or the Depart-

ment of Justice for disciplinary or criminal proceedings. More-

over, in 1974, prior to undertaking to represent Goodwin in this

case, the Department of Justice conducted a full investigation and

concluded that Mr. Goodwin had not engaged in any improper

conduct.”

munity of a prosecutor’s acts depends on whether

those acts are part of the traditional functions of

the prosecutor as the government’s advocate. As

noted, the purpose of the immunity is to protect

honest prosecutors from the harassment of easily

made claims that particular acts, which are the kinds

of acts that he regularly performs in the course of

his duties, were undertaken maliciously or with

knowledge of their falsity or illegality. See also

Stump v. Sparkman, No. 76-1750, decided March 28,

1978. ;

2. The court of appeals also erred in undertaking

to review the district court’s denial of petitioner’s

motion to dismiss on witness immunity grounds under

the collateral order doctrine as set forth in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, and

Abney v. United States, 431 U.S. 651. The collateral

order doctrine, particularly as explained in ‘Abney,

supra, 431 U.S. at 658, would authorize interlocutory

appeal of that ruling if in fact it had been appealed.

The court below, however, overlooked the fact that

petitioner never appealed that ruling, and accordingly,

none of the parties briefed the issue. The first require-

ment of appellate jurisdiction is that someone appeal

the ruling below.

3. If the court below properly considered the issue,

or if this Court decides to review the prosecutorial

immunity issue and believes it appropriate also to

consider the witness immunity question, we submit

that the court below erred in concluding that peti-

tioner was not entitled to witness immunity. There is

no basis in law or policy for the court’s conclusion

that petitioner’s sworn testimony was not immune be-

cause it was not testimony in the usual sense of the

word, but was a substitute for a non-testimonial rep-

resentation by the prosecutor as an officer of the court.

The well established common law rule providing

absolute immunity for sworn relevant testimony in a

judicial proceeding is based on the sound public policy

in favor of encouraging witnesses to give complete and

independent testimony without fear of subsequent civil

suit. See, e.g., Brawer v. Horowitz, 535 F. 2d 830 (C.A.

3). That policy applies with the same force to wit-

nesses who are prosecutors as to witnesses who are

private citizens. Moreover, it is incorrect to equate a

prosecutor’s sworn testimony with an unsworn repre-

sentation, since there is a fundamental distinction be-

tween the two acts; a witness who testifies falsely

under oath is subject to special and significant crimi-

nal sanctions that are not imposed for unsworn

misrepresentations,

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wape H. McCrer, Jr.,

Solicitor General.

BarRBARA ALLEN BaBcock,

Assistant Attorney General.

Ropert E. Kopp,

BarsarRa L. HERwIG,

Attorneys.

Marcu 1978.

APPENDIX A

Unitep States Court oF APPEALS FOR THE DISTRICT OF

: CoLuMBIA CIRCUIT

No. 75-1642

_JoHN Bricos, ET AL.

Guy Goopwin, INDIVIDUALLY AND AS ATTORNEY FOR

THE U.S. DEPARTMENT OF JUSTICE, APPELLANT

«st

’

Wiw1aM H. Starrorp, INDIVIDUALLY AND as U.S. Ar-

TORNEY FOR THE NORTHERN District oF FLormDA, ET AL.

Appeal from the United States District Court for the

District of Columbia

(D.C. Civil Action 74-803)

Decided September 21, 1977

Before: McGowan, Rosrnson and WILKEy, Circuit

Judges.

Opinion for the court filed by Circuit Judge

McGowan.

Dissenting opinion filed by Circuit Judge WiLKey.

McGowan, Circuit Judge: This case raises a diffi-

cult question concerning the precise scope of the

absolute prosecutorial immunity afforded by the Su-

preme Court in Imbler v. Pachtman, 424.U.S. 409

(1976). Plaintiffs-appellees brought in the District

(1a)

Court a civil action in tort grounded upon the Con-

stitution, alleging injury by reason of defendant-

appellant’s assertedly false testimony in a hearing

held in connection with a grand jury investigation of

appellees’ activities as members of an antiwar orga-

nization. Appellant moved to dismiss on the ground

that he enjoyed absolute immunity from any damage

action based upon his conduct while acting in his

official capacity as a special federal prosecutor, The

District Court denied this motion, and we affirm.

Both the facts alleged in appellees’ complaint and

the procedural posture of this appeal are important

to our decision of it. We take appellees’ allegations to

be true, as we are bound to do upon review of the

District Court’s pretrial disposition of a motion te

dismiss. ,

On July 7, 1972, appellant Goodwin, an attorney

with the Internal Security Division of the United

States Department of Justice, was appointed to serve

as a Special Attorney for the investigation and prose-

eution of certain federal crimes which had allegedly

occurred in the Northern District of Florida. Good-

win’s letter of appointment was vague in its deline-

ation of Goodwin’s duties thereunder. It stated that

the Department of Justice was ‘‘informed that var-

ious persons [had] violated * * * the [federal] anti-

riot laws, Title XI of the Organized Crime Control

Act of 1970 [dealing with the manufacture, sale,

and transportation of explosives], [and the] con-

spiracy * * * and the other Federal criminal stat-

utes.” Goodwin was instructed ‘‘to assist in the

trial of the case or cases growing out of the trans-

actions * * * mentioned in which the Government

is interested.”

On the day of Goodwin’s appointment, subpoenas

were served upon more than twenty members of a

group known as the Vietnam Veterans Against the

War/Winter Soldier Organization (VVAW/WSO).

Some of the persons subpoenaed were in Miami, pre-

paring for an anti-war march scheduled to coincide

with the 1972 Democratic National Convention, which

met from July 19 to July 13, 1972. Others were located

in Texas, Arkansas, Louisiana, and Washington, D.C.

All individuals subpoenaed were ordered to appear

before a federal grand jury in Tallahassee, Florida,

three days after service of the subpoenas, on the

morning of July 10, 1972. Among those persons so

subpoenaed were nine of the ten appellees in this

case. (Appellee Briggs was not subpoenaed until a

month later.)

Considerable confusion attended the commence-

ment of the grand jury proceeding. Though all were

members of the same organization, many of those

subpoenaed had not known each other previously. At-

torneys hastily retained to represent appellees had lit-

tle time to consult with their clients before the grand

jury began its inquiries. Recurring rumors of police

and FBI infiltration of the VVAW/WSO prompted

concern that one or more informants might be pres-

ent among those who sought legal advice prior to their

grand jury appearances. This prompted counsel to file

a motion with the District Court in Tallahassee to di-

rect Goodwin and his associates to disclose any agents

or informers among those subpoenaed. The District

Court’s initial response was to ask counsel for a list

of the witnesses in question and their counsel. This

was done in the afternoon of July 12 by an oral sub-

mission on the record in open court of a list of poten-

tial grand jury witnesses (including one Emerson

Poe) and their respective attorneys. The following

morning the motion was taken up in open court. As

movants’ counsel was stating his belief that Goodwin

should file an affidavit supplying the information re-

quested by the motion, he was interrupted by the

court’s peremptory direction to Goodwin to take the

witness stand and be sworn. The transcript shows that

the court then asked Goodwin one question:

The Court: Mr. Goodwin, are any of [these]

witnesses represented by counsel agents or in-

formants of the United States of America?

The Witness: No, Your Honor.

The Court: You can step down.

(Witness excused. )

To counsel’s immediately succeeding question, “Your

Honor, may we be permitted to question Mr. Good-

win on this?,” the court denied such permission.

None of the subpoenaed VVAW members actually

testified during the four-day grand jury proceeding.

Indeed, two appellees (Beverly and Jennings), along

with two other VVAW members not parties to this

litigation, were imprisoned for contempt, when they

persisted in their refusal to testify after grants of use

immunity.’ An indictment was returned on the even-

ing of July 13, 1972 charging six appellees (not in-

cluding Beverly and Jennings) with a variety of

1 The contempt orders were later vacated on grounds unrelated

to this case. See Beverly v. United States, 468 F. 2d 732 (5th Cir.

1972). The court’s opinion in Beverly noted that, of the 23 VVAW

members or associates subpoenaed to appear before the grand jury

in Tallahassee on the morning of July 10, 1972, the first day of the

Democratic National Convention in Miami Beach, four were dis-

missed two days later and all but two of the remainder were

dismissed on July 13, the last day of the Convention. Most of those

crimes centering around an alleged conspiracy to

unlawfully disrupt the 1972 Republican National

Convention.’

The Government’s investigation of VVAW activity

continued, and on August 7, 1972, appellee Briggs was

subpoenaed to appear before the Tallahassee grand

jury. Slightly more than two month§ later, on October

18, 1972, a superseding indictment jwas filed, adding

appellee Briggs as a co-conspirator, and appellee

Michelson as an aider and abettor of the conspiracy.

Trial of the eight appellees covered by this new indict-

ment commenced on July 31, 1973. On August 17, 1973,

appellees received, pursuant to the Jencks Act, 18

U.S.C. § 3500 (1970), a series of written materials

which revealed that Emerson Poe had been function-

ing as a paid FBI informant since January, 1972;

and Poe testified, over objection, as a prosecution wit-

ness at appellees’ criminal trial. Appellees allege. that,

prior to the July, 1972 grand jury proceeding, Poe

had on several occasions relayed to federal investiga-

tors the substance of his conversations with appellee

Camil, and that Poe’s reporting did not cease with

the return of indictments in 1972; rather, it served

subpoenaed were not called upon to give testimony. Since the

subpoenas effectively prevented their utilization of the parade

permits they had obtained from the Miami authorities for anti-

war demonstrations during the Convention, the contention was

made in Beverly, albeit disallowed, that the grand jury process,

either in purpose or effect, was invalid as denying First Amend-

ment rights. The indictments returned on July 13 against six of

those subpoenated were based on the testimony of other witnesses.

* The complaint in this action states only that six appellees were

“indicted for conspiracy to cross state lines and riot at the Republi-

can National Convention,” held in Miami from August 21 to

August 24, 1972. Further detail about the criminal charges is not

available in the record, but may be obtained from the opinion in

Beverly, id. at 737 n. 9.

as an ongoing source of information concerning ap-

pellees’ criminal defense strategy. Despite this disad-

vantage, appellees were acquitted of all criminal

charges on August 31, 1973.

The complaint in the civil action was filed in the

District Court for the District of Columbia on May

28, 1974. It alleged, inter alia, injury arising from

appellant’s representation to the Florida court that

no informants were among those individuals ordered

to appear before the grand jury.’ Relying upon

Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), appellees sought declaratory relief, damages,

and the appointment of a special prosecutor to ex-

plore the alleged official wrongdoing. On July 22,

1974, appellant moved to dismiss on the ground that,

as stated in his brief, “as a Special Attorney of the

United States Department of Justice, he [is], pur-

suant to the doctrine of quasi-judicial immunity, ab-

solutely immune from any damage action based upon

alleged misconduct while acting in such a ecapacity.”’

This motion was denied on November 20, 1974. 384 F.

Supp. 1228.

On December 13, 1974, appellant filed a fresh motion

to dismiss, urging that “as a witness in a Federal court

he is absolutely immune from any damage action or

civil suit based upon his alleged false testimony in

such judicial proceeding.” Alternatively, appellant

asked the District Court to certify “the issue of

*In addition to appellant, the complaint named as defendants

two regular federal prosecutors from the Northern District of

Florida, and a special agent of the FBI. The complaint was dis-

missed as to the latter three defendants for lack of venue and

personal jurisdiction. In Briggs v. Goodwin [Stafford, et al.| No.

75-1578, decided today, the District Court is reversed and the

ecmplaint reinstated as to those defendants.

immunity” for interlocutory appeal in accordance

with the provisions of 28 U.S.C. § 1292(b) (1970). In

an order dated March 4, 1975, the District Court

denied appellant’s motion to dismiss on the ground

of witness immunity, and also expressly refused (what

it interpreted as) appellant’s request to certify the

issue of witness immunity for interlocutory appeal

under § 1292(b). However, the District Court did

agree to certify the issue of quasi-judicial (or prosecu-

torial) immunity for such appeal, and included in its

March 4 order a declaration that the “Order of No-

vember 20, 1974 * * * be and hereby is certified for

interlocutory appeal * * * pursuant to 28 U.S.C.

§ 1292(b).”” On May 27, 1975, a motions panel of

this court granted appellant leave to appeal pursuant

to § 1292(b). The resultant interlocutory challenge to

the District Court’s failure to dismiss the complaint

is the matter now confronting us.*

‘The District Court’s ruling did not reach the question of

whether appellees’ request for equitable relief was barred by the

official immunity doctrine. It is uncertain at best whether con-

sideration of this issue falls within the scope of our jurisdiction on

this interlocutory appeal under 28 U.S.C. § 1292(b) (1970). We

believe it to be fairly clear that official immunity ordinarily bears

only on the availability of a damages remedy, rather than prospec-

tive equitable relief, see, ¢.g., Younger v. Harris, 401 US. 3%

(1971); Dombrowski v. Pfister, 380 U.S. 470 (1965); Douglas

v. City of Jeannette, 319 U.S. 157 (1943), and in any event,

our resolution of the immunity issue in the context of the re-

quest for monetary relief would likely preclude refusal to award

equitable relief on the basis of official immunity. However, we

believe it the better practice to leave this issue to be addressed in

the first instance in the District Court. The District Court will

be able simultaneously to consider a range of other possible objec-

tions to such relief, based upon questions of constitutionality,

justiciability, the scope of the court’s power, the availability of

that relief against the named defendants, and so forth.

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335

(1872), the Supreme Court declared that

it is a general principle of the highest impor-

tance to the proper administration of justice

that a judicial officer, in exercising the author-

ity vested in him, shall be free to act upon his

own conviction, without apprehension of per-

sonal consequences to himself.

At 347 (emphasis added). Subsequent decisions have

consistently adhered, either explicitly or implicitly, to

the proposition that official immunity, whether ab-

solute or qualified, extends only so far as the affected

government official’s authority. See, e.g., Scheuer v.

Rhodes, 416 U.S. 232, 250 (1974); Apton v. Wilson,

506 F. 2d 83, 90-95 (D.C. Cir. 1974). A government

employee is not to be protected merely by virtue of

his official position for conduct undertaken outside

the scope of his authority. Apparently relying upon

these well-settled rules, the District Court in this ease

reasoned that: (1) Goodwin allegedly perjured him-

self; (2) perjury is never within a prosecutor’s au-

thority; (3) Goodwin cannot be immune for activity

wholly outside his authority.°

The difficulty with this approach is that any allega-

tion that an official, acting under color of law, has de-

prived someone of his rights necessarily implies that,

in the particular case, the official exceeded his author-

ity. Such logic would completely abrogate the doctrine

* Briggs v. Goodwin, 384 F. Supp. 1228, 1230 (D.D.C, 1974):

“Where, as in this case, a prosecutor is alleged to have committed

perjury, an activity of law and far removed from the discretionary

areas of the judicial process traditionally protected by the quasi-

judicial immunity doctrine, the Court concludes that this doctrine

is not applicable.

of immunity.’ Rather, in heeding a district judge’s

directive to answer a question relating to his official

duties, appellant performed the kind of act not

“manifestly or palpably beyond his authority,” but

rather “having more or less connection with the

general matters commited by law to his control or

supervision.”? Spalding v. Vilas, 161 U.S. 488, 498

(1896); see, eg., Bivens v. Six Unknown Named

Agents, 456 F. 2d 1339, 1343-45 (2d Cir. 1972) (on

remand) ; Cooper v. O’Connor, 99 F. 2d 135,139 (D.C.

Cir.), cert, denied, 305 U.S. 643 (1988) ; note 6 supra.

The question, then, is whether the immunity to be

accorded appellant is qualified or absolute.’

® See, e.g., Gregoire v. Biddle, 177 F. 2a 579, 581 (2d Cir. 1949)

(L. Hand., C.J.), cert. denied, 339 U.S. 949 (1950) :

“The decisions have, indeed, always imposed as a limitation

upon the immunity that the official’s act must have been within the

scope of his powers; and it can be argued that official powers,

since they exist only for the good, never cover occasions where the

public good is not their aim, and hence that to exercise a power

dishonestly is necessarily to overstep its bounds. A moment’s re-

flection shows, however, that that cannot be the meaning of the

limitation without defeating the whole doctrine. What is meant

by saying that the officer must be acting within his power cannot

be more than that the occas'»n must be such as would have justified

the act, if he had been using his power for any of the purposes on

whose account it was vested in him.

Accord, Note, Quasi-Judicial Immunity: Its Scope and Limita-

tions in Section 1983 Actions, 1976 Duxe L. J. 95, 110-11.

* Traditionally, courts have refused to confer absolute immu-

nity upon behavior which, though clearly within the scope of an

official’s authority, was “ministerial” rather than “discretionary”

in character. See, ¢.g., Johnson v. Alidredge, 488 F. 2d 820, 824-25

& n. 2 (3d Cir. 1973), cert. denied, 419 U.S. 822 (1974) ; WaAirl v.

Kern, 407 F. 2d 781, 790-92 (5th Cir. 1968), cert. denied, 396 U.S.

901 (1969), modified, Bryan v. Jones, 530 F. 2d 1210 (5th Cir.

1976) (en banc; six opinions) ; Cooper v. O’Connor, 99 F. 2d 135,

137 & n. 2 (D.C. Cir.), cert. denied, 305 U.S. 643 (1938). As Prof.

10a

lil

Finding that appellant’s alleged behavior in this case

falls outside the confines of these prosecutorial activities

for which Imbler prescribed an absolute prosecutorial

immunity, we hold that appellant here is entitled only

to a qualified immunity, that is to say, his protection

from liability depends upon a showing that he enter-

Jaffe has perceptively observed, the “ministerial-discretionary”

dochotomy may well be “a way of stating rather than arriving at

the result.” Jaffe, Suits Against Governments and Officers : Dam-

age Actions, 77 Harv. L. Rev. 209-218 (1963). Certainly ac-

knowledgment of the abstract distinction does not by itself resolve

the difficult and varied immunity questions which may be presented

by the infinite permutations of a government’s interaction with

its citizens. Some courts, presumably motivated by a desire for

technical accuracy, have defined “immunity” altogether for so-

called ministerial acts. These courts, respecting the conventions of

pleading terminology, have apparently felt that the term “immu-

nity” suggests immediate success on a motion to dismiss, and

therefore have not used the phrase “qualified immunity” to denote

the availability of a “good faith, reasonable belief” afirmative

defense for government officials charged with constitutional torts.

See, e.g., Fidtler v. Rundle, 497 F. 2d 794, 800-01 (3d Cir. 1974) ;

Bivens v. Sie Unknown Named Agents, 456 F. 2d 1339, 1342-43,

1345-48 (2d Cir. 1972) (on remand). Recent Supreme Court deci-

sions have generally avoided the “ministerial-discretionary” lan-

guage in favor of analysis focusing directly on the need for

differing levels of protection in connection with different official

functions, the performance of which has given rise to damage

claims, See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) ; Wood

v. Strickland, 420 U.S. 308 (1975); and Scheuer v. Rhodes, 416

U.S. 232 (1974). We view this methodological shift as a salutary

development in the case law. However, we note in passing that

under a more traditional approach, appellant’s act of answering

a single inquiry from the court, an inquiry which plainly called

for a simple affirmative or negative response, might well have been

classified as a ministerial, rather than a discretionary, act, and thus

accorded at best a qualified immunity.

lla

tained a good-faith, reasonable belief in the truth of

his response to the federal district judge in Florida.

In reaching this result, we rely on a series of federal

decisions distinguishng between a prosecutor’s role as

advocate, on the one hand, and his function as an

administrative or investigative officer, on the other. We

further rely upon the Supreme Court’s recognition of

this distinction in Imbler, and its express disclaimer

of any intention to extend the sway of that case be-

yond those prosecutorial activities “intimately associ-

ated with the judicial phase of the criminal process.”

424 U.S. at 430.

The alleged prosecutorial misconduct before the Su-

preme Court in Imbler was quite different from that

attributed to appellant in this case, and much more

typical of the abuses which have commonly inspired

civil actions against prosecutors. Petitioner in Imbler

was convicted of first-degree felony murder, and his

conviction was unanimously affirmed by the California

Supreme Court. Thereafter the local district attorney

who had prosecuted Imbler voluntarily wrote to the

Governor, announcing the discovery of new evidence,

some of which tended to corroborate Imbler’s alibi

defense, and some of which tended to cast doubt upon

the credibility of the state’s chief identification wit-

ness. Though all the new evidence taken together did

not conclusively establish Imbler’s innocence, the dis-

trict attorney believed that considerations of fairness

compelled disclosure. On the basis of the new informa-

tion thus revealed, Imbler file’ a state habeas corpus

petition. While Imbler’s brief in support of this peti-

tion praised the prosecutor’s post-trial devotion to

duty, it also charged him with knowing use of false

testimony and suppression of material evidence. The

habeas petition was unanimously rejected by the Cali-

fornia Supreme Court.

257-916—78——_3

12a

Nearly five years later, Imbler raised essentially the

same contentions in a federal habeas petition. Render-

ing its decision upon the record without a hearing, the

federal district court found several instances of prose-

cutorial misconduct at trial and accordingly granted

habeas relief. The Ninth Circuit affirmed, and when

California chose not to retry Imbler, he was released.

Subsequently, over eleven years after commission of

the offense for which he had been imprisoned, Imbler

filed a civil rights suit under 42 U.S.C. § 1983,° claim-

8 Unlike the California prosecutor in /mbler, appellant in the

present case is a federal employee. Therefore, this suit has been

brought under a Bivens theory, rather than as a § 1983 action.

We are convinced that this dissimilarity does not diminish, for

our purposes, the precedential value of Jmbler and other cases

involving § 1983 suits. In explaining this statement we begin by-

observing that where officers have been accused of common law

torts, courts have turned to federal law for the delineation of

appropriate immunities. See Wheeldin v. Wheeler, 373 U.S. 647,

652 (1963) ; and Norton v, McShane, 332 F. 2d 855, 860 n. 6 (5th

Cir. 1964). Moreover, the features of immunities developed under

federal common law need not duplicate the characteristics of

corresponding immunities as they have evolved in the decisional

law of the various states. See, e.g., Fidtler v. Rundle, 497 F. 2d

794, 799 (3d Cir. 1974). Thus, where common law tort allegations

are concerned, state and federal officers may conceivably be ac-

corded different measures of immunity for similar wrongs. How-

ever, § 1983 is a federal statute, creating a federal cause of action

for constitutional violations committed under color of state law.

The immunities enjoyed by state officials sued under § 1983 are

governed by federal law. See, ¢.g., Fidtler, supra, at 799-800;

Comment, Civil Liability of Subordinate State Officials Under the

Civil Rights Act and the Doctrine of Official Immumity, 44 Carr.

L. Rev. 887 (1956); Note, The Doctrine of Official Immunity

Under the Civil Rights Acts, 68 Harv. L. Rev. 1229 (1955). In

ascertaining what this federal immunity standard ought to be in

a particular case, courts are often guided by the general common

law tradition, but they are certainly under no compulsion to ad-

here to the vagaries of peculiar state common law rules, or even to

13a

ing, inter alia, that the local prosecutor had intention-

ally allowed the state’s leading identification witness

to testify falsely, had permitted the suppression of

fingerprint evidence favorable to Imbler, and had used

at trial a police artist’s sketch allegedly altered to re-

semble Imbler more closely. The complaint also main-

tained that the district attorney’s decision to proceed

with the prosecution was improper in light of an

earlier lie detector test which had allegedly cleared

Imbler. The federal District Court granted a motion

to dismiss on the ground of prosecutorial immunity,

and the Ninth Circuit affirmed by a divided panel.

500 F. 2d 1301 (1974). The Supreme Court granted

certiorart, and affirmed. 424 U.S. 409 (1976).

a clear common law consensus position, assuming one exists. See,

e.g., Scheuer, supra.

In the five years since the Supreme Court announced its deci-

sion in Bivens, supra, the lower federal courts have produced some

conflicting interpretations of the holding in that case. Numerous

jurisdictions have apparently concluded that Bivens established

a cause of action for damages arising from the violation of any

constitutional right by a federal official. See, e.g., Paton v. La

Prade, 524 F. 2d 862 (3d Cir. 1975) ; Yiamouyiannis v. Chemical

Abstracts Service, 521 F. 2d 1392 (6th Cir. 1975) ; States Marine

Lines, Inc. vy. Shultz, 498 F. 2d 1146 (4th Cir. 1974); United

States ex. rel. Moore v. Koelzer, 457 F. 2d 892 (8d Cir. 1972) ;

Gardels v. Murphy, 377 F. Supp. 1389 (N.D. Ill. 1974); and

Butler v. United States, 365 F. Supp. 1035 (D. Hawaii 1973).

Other courts have read the leading case more narrowly, restricting

its sway to Fourth Amendment transgressions like that actually

treated by the Supreme Court in Bivens. See, ¢.g., Moore v.

Schlesinger, 384 F. Supp. 163, 165 (D. Colo. 1974), aff'd by unpub.

opinion (10th Cir. Nov. 21, 1975), cert. denied, 96 S. Ct. 1738

(1976) ; and Davidson v. Kane, 337 F. Supp. 922, 924 (E.D. Va.

1972). Several tribunals have noted the issue, but reserved deci-

sion. See, e.g. Holodnak v. Avco Corp., Avco-Lycoming Div.,

Stratford, Conn., 514 F. 2d 285, 292 (2d Cir.), cert denied, 423

U.S. 892 (1975) ; and Wahba v. New York University, 492 F. 2d

144

Justice Powell’s opinion for the Court recognized

that the doctrine of prosecutorial immunity finds both

its common law origins and its primary application in

the malicious prosecution context. “The function of a

prosecutor that most often invites a common law tort

action is his decision to initiate a prosecution, as this

may lead to a suit for malicious prosecution if the

State’s case misfires.” Jd. at 421. Still focusing on com-

mon law precedents, the Court outlined the shared

rationale supporting judicial, prosecutorial, and grand

juror immunity:

The common-law immunity of a prosecutor is

based upon the same considerations that under-

lie the common-law immunities of judges and

grand jurors acting within the scope of their

duties. These include concern that harrassment

by unfounded litigation would cause a deflec-

tion of the prosecutor’s energies from his

public duties, and the possibility that he would

shade his decisions instead of exercising the in-

eras of judgment required by his public

rust.

96, 103-04 (2d Cir.), cert. denied, 419 U.S. 874 (1974).

In this case, the District Court may eventually have to resolve

the question of whether appellees’ complaint states a valid cause

of action within the contemplation of Bivens. We need not now

consider whether Bivens authorizes constitutional tort suits

against federal officers to the same extent that § 1983 allows similar

litigation against state functionaries. We declare only that, asswm-

ing the rule of Bivens comprehends a damage action for a partic-

ular constitutional infringement by a federal officer, the fed-

erally-determined immunity applicable in such a case should be

no different from the federally-determined immunity available in

a § 1983 suit against a state official. Prior decisions in this circuit

and elsewhere provide abundant support for our comments in this

regard. See, e.g., Economou v. United States Dept. of Agriculture,

535 F. 2d 688, 695 n. 7 (2d Cir. 1976), cert. granted, 97 S. Ct. 1097

(1977) ; Mark v. Groff, 521 F. 2d 1376, 1380 (9th Cir. 1975) ; and

A pton, supra, relying on the Supreme Court’s holding in Scheuer,

which was a §1983 suit, even though Apton involved federal

officials sued under the Fourth and Fifth Amendments.

15a

Id. at 422-23 (footnote omitted). With respect to these

potential dangers, the Court could discern no distine-

tion between § 1983 actions and common law malicious

prosecution suits. “If a prosecutor had only a qualified

immunity, the threat of § 1983 suits would undermine

performance of his duties no less than would the

threat of common law suits for malicious prosecution.”

Id. at 424.

Throughout the Court’s opinion, the concentration

on claims likely to arise from ;,osecutorial behavior

at or immediately before trial is manifest. “A pros-

ecutor is duty bound to exercise his best judgment

both in deciding which suits to bring and in conduct-

ing them in court.” Id. (emphasis added). Describing

the perils of a contrary result in Imbler, the Court

observed that

suits that survived the pleadings would pose

substantial danger of liability even to the hon-

est prosecutor. The prosecutor’s possible knowl-

edge of a witness’ falsehoods, the materiality

of evidence not revealed to the defense, the

propriety of a closing argument, and—ulti-

mately in every case—the likelihood that pros-

ecutorial misconduct so infected a trial as to

deny due process, are typical of issues with

which judges struggle in actions for post-trial

relief, sometimes to differing conclusions. The

presentation of such issues in a § 1983 action

often would require a virtual retrial of the

criminal offense in a new forum, and the re-

solution of some technical issues by the lay

jury. It is fair to say, we think, that the honest

prosecutor would face — difficulty in

meeting the standards of qualified immunity

than other executive or administrative officials.

Id. at 425 (footnote omitted). All of the worrisome

issues thus enumerated by the Court involve possible

prosecutorial errors of commission or omission in con-

16a

nection with the trial of a criminal case. This point

was further emphasized a bit later in the Imbler

opinion when the Court defended its decision in terms

of the effective functioning of the criminal justice

system: “Attaining the system’s goal of accurately

determining guilt or innocence requires that both the

prosecution and the defense have wide discretion in

the conduct of the trial and the presentation of evi-

dence.” Id. at 426 (footnote omitted; emphasis

added). In conclusion, the Court explicitly “deline-

ate[d] the boundaries” of its holding.

The purpose of the Court of Appeals’ focus

upon the functional nature of the activities

rather than respondent’s status [as a prosecu-

tor] was to distinguish and leave standing those

cases, in its Circuit and in some others, which

hold that a prosecutor engaged in certain inves-

tigative activities enjoys not the absolute im-

munity associated with the judicial process, but

only a good-faith defense comparable to the

policeman’s. We agree with the Court of Ap-

peals that respondent’s activities were intimate-

ly associated with the judicial phase of the

criminal process, and thus were functions to

which the reasons for absolute immunity apply

with full force. We have no occasion to consid-

er whether like or similar reasons require im-

munity for those aspects of the prosecutor's

responsibility that cast him in the role of an ad-

ministrator or investigative officer rather than

that of advocate. We hold only that in initiat-

ing a prosecution and in presenting the State’s

case, the prosecutor is immune from a civil suit

for damages under § 1983.

Id. at 430-31 (emphasis added) (citation and foot-

notes omitted).

Lest his stress on the advocacy function suggest

that the Court was contemplating a mechanical im-

17A

munity test based solely upon whether alleged pro-

secutorial misconduct occurred in court during the

course of a trial, Justice Powell added a few words

of elaboration in the margin.

We recognize that the duties of the prosecutor

in his role as advocate for the State involve

actions preliminary to the initiation of a prose-

cution and actions apart from the courtroom.

A prosecuting attorney is required, constantly,

in the course of his duty as such, to make de-

cisions on a wide variety of sensitive issues.

These include questions of whether to present

a case to a grand jury, whether to file an infor-

mation, whether and when to prosecute,

whether to dismiss an indictment against par-

ticular defendants, which witnesses to call, and

what other evidence to present. Preparation,

both for the initiation of the criminal process

and for a trial, may require the obtaining, re-

viewing, and evaluating of evidence. At some

point, and with respect to some decisions, the

prosecutor no doubt functions as an adminis-

trator rather than as an officer of the court.

Drawing a proper line between these functions

may present difficult questions, but this case

does not require us to anticipate them.

Id. at 431 n. 33. Thus, the Court, while acknowledging

the potential factual problems of future cases, re-

affirmed its fundamental reliance on the advocate’s

role as the source of the absolute prosecutorial im-

munity applied in IJmbler. Although the passage

quoted above makes clear that a prosecutor’s advocacy

function does extend beyond the confines of the trial

courtroom, the examples of such preliminary advo-

cate activities provided by the Supreme Court are in-

structive for their common focus on a particular

criminal proceeding. By the plain import of the

Court’s remarks, absolute immunity under Imbler ex-

18a

tends only so far as necessary to protect a prose-

cutor’s decision with respect to the initiation and con-

duct of particular cases. Imbler does not, in our read-

ing, immunize prosecutors for any and all measures

they may undertake in the course of wide-ranging

law enforcement investigations or general fact-finding

expeditions.

As the Supreme Court observed, the Ninth Circuit’s

affirmance in Imbler deliberately left undisturbed ear-

lier decisions in that court and others which had held

that prosecutors are entitled to only a qualified im-

munity for conduct performed in an investigative or

administrative capacity. See Apton v. Wilson, 506 F.

2d 83, 91, 93-94 (D.C. Cir. 1974) ; Guerro v. Mulhearn,

498 F’. 2d 1249, 1256 (1st Cir. 1974) ; Hampton v. City

of Chicago, 484 F. 2d 602, 608-09 (7th Cir. 1973)

(Stevens, J.), cert. denied, 415 U.S. 917 (1974);

Littleton v. Berbling, 468 F. 2d 389, 410-11 (7th Cir.

1972), cert. denied, 414 U.S. 1143 (1974); Dodd v.

Spokane County, Washington, 393 F. 2d 330, 335 (9th

Cir. 1968) ; Robichaud v. Ronan, 351 F. 2d 533, 536-37

(9th Cir. 1965); Tomko v. Lees, 416 F. Supp. 1137,

1139 (W.D. Pa. 1976) ; and Burkhart v. Saxbe, 397 F.

Supp. 499, 503 n.4 (E.D. Pa. 1975). Cf. Madison v.

Purdy, 410 F. 2d 99, 101-02 (5th Cir. 1969) ; Lewis v.

Brautigam, 227 F. 2d 124, 128-29 (5th Cir. 1955) ; and

Ames v. Vavreck, 356 F.Supp. 931, 936-37 (D. Minn.

1973) (all refusing to apply absolute immunity to

arguably “investigative” activities, although doing so

on the ground that the prosecutor’s alleged behavior

may have been “outside the scope of his jurisdiction ;”

only Ames refers specifically to prosecutors acting as

investigators). See also Brawer v. Horowitz, 535 F. 2d

830, 834 (3d Cir. 1976) (noting the Imbler distinc-

tion between advocacy and investigation); Tyler v.

19a

Witkowski, 511 F. 2d 449, 451 (7th Cir. 1975) applying

absolute immunity in a § 1983 false imprisonment suit,

but citing Hampton, and explicitly acknowledging that

the conduct assailed was not investigatory); Duba v.

McIntyre, 501 F. 2d 590, 592 (8th Cir. 1974), cert.

denied, 424 U.S. 975 (1976) (apparently accepting the

proposition that absolute immunity will not apply to

prosecutors acting in an investigatory capacity) ;

Barnes v. Dorsey, 480 F. 2d 1057, 1060 (8th Cir. 1973)

(specifically reserving “the question of the liability

of a prosecutor acting within an investigatory capac-

ity”) ; Wilhelm v. Turner, 431 F. 2d 177, 182-183 (8th

Cir. 1970) cert denied, 401 U.S. 947 (1971) (recogniz-

ing that earlier cases had drawn the advocacy-investi-

gation distinction, but finding it unnecessary to rule on

the matter, since, in any event, affidavits established

that the State Attorney General and his assistant were

“acting in good faith and had probable cause for their

actions”) Fanale v. Sheehy, 385 F. 2d 866, 869 (2d Cir.

1967) (Feinberg, J. and Waterman, J., though concur-

ring in a holding of immunity, agree that “there would

be some situations * * * in which even ‘official’ acts of

a prosecuting officer should not be protected by ab-

solute immunity from civil liability”); Bauers v.

Heisel, 361 F. 2d 581, 589-95 (3d Cir. 1966) (en banc),

cert. denied, 386 U.S. 1021 (1967) (finding absolute

immunity in an easy case where plaintiff attacked the

prosecutor’s choice of forum, but nevertheless provok-

ing one concurrence which refused to reach the im-

munity issue, and a second concurrence and two dis-

sents which took issue with the majority’s sweeping

description of a prosecutor’s quasi-judicial immu-

nity) ; and Harmon v. Superior Court, 329 F. 2d 154,

155 (9th Cir. 1964) (commenting that the acts com-

plained of were “quasi-judicial” acts, and therefore

entitled to quasi-judicial immunity). But cf. Cambist

20a

Films, Inc. v. Duggan, 475 F. 2d 887, 888-9 (3d Cir.

1973) (ambiguous per curtam in common law damage

action arising out of illegal seizure allegedly ordered

by local district attorney; seems to suggest that, even

had the action been brought under § 1983, absolute

immunity would apply to all prosecutorial behavior,

regardless of character, unless defendant acted “

the clear absence of all jurisdiction’’).°

® An isolated and clearly incorrect footnote in S & S Logging

Co. v. Baker, 366 F. 2d 617, 620 n. 2 (9th Cir. 1966), constitutes

the only other authority offered by appellant which arguably

rejects the notion that a prosecutor in his investigative role should

be accorded a lesser measure of immunity than he merits when

functioning as an advocate. S & S Logging was a private Clayton

Act suit in which Federal Forest Service officials were held ab-

solutely immune from charges that they had conspired to monop-

olize and control the sale of government-owned timber. In try-

ing to explain the earlier decision of a different Ninth Circuit

panel in Robichaud, supra, Judge Pope’s opinion in S & S Logging

erroneously relied on the fact that the Robichaud complaint rested

upon § 1983. This view that the qualified immunity announced

in Robichaud was traceable to the statutory underpinning of

appellant’s claim rather than to the investigatory nature of appel-

lees’ conduct stemmed in part from an overbroad reading of Barr

v. Matteo, 360 U.S. 564 (1959). Barr had established that executive

Officials enjoyed absolute immunity from common law damage

suits based on discrAionary actions within the scope of their

authority. Barr dealt neither with the quasi-judicial immunity of

prosecutors nor with the level of immunity generally appropriate

in constitutional tort suits under § 1983. Nevertheless, the S & S

Logging court for some reason felt that Barr precluded the

grant of different types of immunity for different types of prosecu-

torial conduct attacked under § 1983. The idea that the qualified

immunity in Robichaud could be defended solely by reference to

the § 1983 context of that case is particularly surprising in light

of the court’s actual holding in S & S Logging, i.e., finding ab-

solute immunity for executive officials in a Clayton Act suit, even

while admitting that most previous applications of such immunity

had occurred in the common law arena. See 366 F. 2d at 622.

21a

We find ourselves in general agreement with the

common theory underlying the first group of decisions

listed above. When a prosecutor is engaged in essen-

tially investigative as opposed to advocatory activities,

the considerations of public policy which necessitated

a grant of absolute immunity in Imbler no longer

control. Regardless of his official status, a prosecutor

functioning primarily as an investigator should be

accorded only the qualified immunity typically con-

ferred on other investigative officers. The crucial in-

quiry concerns the nature of the official behavior

challenged, not the identity or title of the officer re-

sponsible therefor. These sentiments were well-

expressed by the Fourth Circuit in McCray v. Mary-

land, 456 F. 2d 1 (4th Cir. 1972):

The immunity of “quasi-judicial” officers

such as prosecuting attorneys and parole board

members derives, not from their formal asocia-

tion with the judicial process, but from the fact

that they exercise a cities similar to that

exercised by judges. Like judges, they require

the ren 3 A, of absolute immunity to assure

the courageous exercise of their discretionary

duties. Where an official is not called upon to

exercise judicial or quasi-judicial discretion,

courts have properly refused to extend to him

the protection of absolute judicial immunity,

ay of any apparent relationship of his

to the judicial system.

456 F. 2d at 3-4 (footnotes omitted).

Accepting as true the allegations of the complaint

herein, as we must in the present posture of this case,

we believe that appellant’s false statement to the

federal district court in Florida is properly characiex-

ized as an act of investigation rather than advocacy.

To some extent, of course, assignment of a particular

22a

incident to one of several mutually exclusive abstract

categories is likely to involve an element of arbitrari-

ness, especially where the incident in question was

clearly not envisioned by those who originally devised

the classificatory scheme. But appellant’s alleged per-

jury bears no relation whatever to the advocate’s role

as conceived by the Supreme Court in Imbler. The

obligation to disclose, pursuant to judicial direction,

the presence of Government informants among those

subpoenaed to testify before the grand jury is en-

tirely foreign to advocacy issues such as whether to

initiate a prosecution or how to conduct a prosecution

once begun. Such disclosure was, rather, an action re-

quired of appellant by the court in order to enable

the court to deal with a possible defect in the condi-

tions under which subpoena compulsions had been

brought to bear in the grand jury investigation.

Application of only a qualified immunity in this

case cannot possibly arouse the fears which animated

the Supreme Court in Imbler, namely, that prosecu-

tors will be adversely affected in the discharge of

their public duties. The federal district court in

Florida sought information about one aspect of the

Government’s investigation of the VVAW. Appellant

allegedly provided the court with willfully false infor-

mation about the matter, with the result that a Gov-

ernment informant remained in appellees’ confidence

for approximately a year longer than he otherwise

would have. We can detect nothing even vaguely re-

sembling advocacy in appellant’s behavior. Indeed,

even the language of appellant’s own motion to dis-

miss in the District Court acknowledges that he was

dispatched to Florida for the purpose of conducting

an investigation. Though he asserts in conclusory

fashion that his challenged action “fall[s] squarely

23a

within the exercise of the judicial function” (see

Brief for Appellant at 23, 35 n. 15), appellant cites

absolutely no authority for the proposition that the

statement of which appellees complain was in the

nature of advocacy.

Appellant has referred us to over twenty cases

which purportedly establish that “prosecutors enjoy

absolute immunity for acts done in the performance

of their official functions.’”’ Brief for Appellant at

18 & n. 9. We have examined all these decisions and

numerous others of a similar nature, but find none of

them determinative of the dispute now before us. The

eases collected by appellant hold unanimously that a

prosecutor is entitled to absolute immunity for his

quasi-judicial activities. After Imbler, this point is

incontestable. However, none of the precedents upon

which appellant relies support his contention that the

behavior at issue here falls within the scope of the

absolute quasi-judicial immunity endorsed by the

Supreme Court in Imbler. The vast majority of cases

cited involve claims arising from prosecutorial acts

which unquestionably qualify for immvnity under

Imbler, e.g., the decision to initiate a criminal prosecu-

tion or the orchestration of an ensuing criminal trial.”

10 Some further comments are appropriate in connection with

two of the precedents flagged by appellant. In a frequently-quoted

opinion by Learned Hand, the Second Circuit in Gregoire v. Bid-

dle, 177 F. 24 579 (2d Cir. 1949), cert. denied, 339 U.S. 949

(1950), expounded the standard justification for absolute prosecu-

torial immunity. The difficulty with Gregoire lies in its facts. Ap-

pellant sued two successive Attorneys General of the United

States, two successive Directors’of the Enemy Alien Control Unit

of the Department of Justice, and the District Director of Immi-

gration at Eliis Island. Appellant alleged that he had been kept in

custody as a German enemy alien for nearly four years after the

Enemy Alien Hearing Board had ruled that he was a Frenchman.

No prosecutorial advocacy or quasi-judicial activity was involved.

24a

The combined efforts of counsel and this court have

failed to unearth a single prior occasion on which

damages have been sought for misconduct like that

alleged here.

Of course, the dispute in Gregorie arose long before Bivens, supra,

and therefore had to be litigated as a common law tort action,

since appellees were federal officials. Without criticizing any of

the reasoning employed by Judge Hand, we suggest that, were

the case to arise today, appellees’ conduct might well be deemed

investigative or administrative, and thus accorded only a qualified

immunity in a Bivens-type suit.

Duba v. McIntyre, 501 F. 2d 590 (8th Cir. 1974), cert. denied,

424 U.S. 975 (1976), presents a different problem. On September

11, 1970, appellant pled guilty to a charge of “unlawfully permit-

ting some of his hogs to run at large upon the streets of the City

of Friend, Nebraska.” He was released on condition that he pay a

$55 fine within one week. When the fine remained unpaid on Sep-

tember 24, the city attorney caused the local Justice of the Peace

to issue a warrant for appellant’s arrest. As recounted by the

Eighth Circuit, appellant was “arrested and detained for about

one hour, and 110 of his hogs were attached, loaded, and removed

to an auction barn in York, Nebraska, where they were sold the

following day without bond, inventory, or advertisement.” 501

F. 2d at 591. The appellate court recognized that prosecutors are

cloaked with absolute immunity only when they act “within the

scope of their proper prosecutorial capacity, rather than in an

investigatory capacity.” /d. at 592. However, the per curiam opin-

ion never focused directly on the behavior of the city attorney.

Rather, resolution of the immunity issue with respect to the Jus-

tice of the Peace was apparently considered dispositive of the

prosecutor’s immunity claim as well. In proceeding on this as-

sumption, the court adhered strictly to its description of prosecu-

torial immunity as a “derivative form of immunity,” springing

from the absolute immunity enjoyed by judges under Pierson v.

Ray, 386 U.S. 547 (1967), and Bradley vy. Fisher, 80 U.S. (13

Wall.) 335 (1872). Because issuance of the arrest warrant was

clearly within his general powers under state law, the Justice of

the Peace in Duba was found absolutely immune from civil suit.

The prosecutor’s immunity for his conduct in connection with the

25a

We are aware that earlier cases in which prosecu-

torial behavior has been termed investigative have

involved factual situations distinct from that cur-

rently before us.” Nevertheless, the dissimilarities be-

tween this case and those which have preceded it do

not render the conduct at issue here any less investiga-

tive or any more advocatory. Appellant contends

rather mechanically that because his alleged perjury

occurred in a courtroom exchange, after a grand jury

had been convened, the description “intimately associ-

ated with the judicial process” automatically fits. Our

answer to this argument is two-fold.

arrest and execution sale then followed automatically. This ap-

proach appears faulty. While the court accurately identified the

origins of prosecutorial immunity, it incorrectly concluded that

the historical background necessitated identical results for judge

and prosecutor in any given case. Without expressing any opinion

on the proper characterization of the citys attorney’s behayior in

Duba, we simply register our conviction that prosecutorial con-

duct must be evaluated independently on the facts of each case to

determine the measure of immunity which that conduct deserves.

11 For example, in Apton, supra, Department of Justice offi-

cials, including the Attorney General, were granted only a quali-

fied immunity in connection with their policy-making and

supervisory participation in the arrest and detention of large

numbers of individuals during the “May Day Demonstrations”

of 1971. In Hampton, supra, the Illinois State’s Attorney and one

of his assistant’s were charged with having planned and executed

a violent raid on a Chicago apartment, during which raid police

gunfire killed two members of the Black Panther Party and

wounded four others. In Robichaud, supra, appellant claimed

that county prosecutors had employed unconstitutional coercive

methods to obtain a confession. Likewise, in Dodd, supra, appel-

lant, a prisoner in county jail, alleged that local prosecutors had

sanctioned the use of threats, assaults, and other punitive meas-

ures in an effort to elicit false testimony against a criminal de-

fendant then on trial.

26a

First, the timing of prosecutorial action, by itself,

is not dispositive of the immunity issue. The fact

that a grand jury is about to hear testimony or has

already begun to hear testimony does not imply that

all subsequent prosecutorial activity is ipso facto ad-

vocacy, and not investigation. Justice Powell’s penul-

timate footnote in Imbler established that the advo-

cate’s role could entail certain ‘‘actions preliminary

to the initiation of a prosecution and actions

apart from the courtroom.” 424 U.S. at 431 n. 33.

This does not foreclose that fact that the investi-

gative function may embrace some acts even when

performed after the commencement of judicial pro-

ceedings, Attention must be focused on the behavior

itself, and not solely on its timing. Appellant’s

statement to the court in Florida does not acquire the

character of advocacy merely because it was made

after the grand jury had met, rather than several

days earlier.

Secondly, and completely independent of the tim-

ing point, we think that, in a real sense, this liti-

gation concerns behavior more plainly investigative

than that encountered in some of the earlier cases

cited above. In Robichaud, for example, the crucial

events took place only after the prosecutors’ field of

vision had already narrowed to one crime and one

prospective defendant. A criminal complaint was

filed, allegedly with malice and without probable

cause, charging the sixteen-year old appellant with

first degree murder. In due course, she was arrested,

and, allegedly under the direction of the County At-

torney and his deputy, police officials attempted to

extract a confession from her through lengthy con-

finement in the “drunk tank’’ with adult female

27a

prisoners, a forced visit to the scene of the crime,

and various species of deceit and intimidation.

These latter features of appellant’s § 1983 complaint

prompted the Ninth Circuit’s reference to investi-

gative conduct by prosecutors.

Here, by contrast, appellant’s primary task in

Florida was to determine whether any violations of

federal law properly attributable to the VVAW or its

members had occurred. If any such federal crimes

had been committed, Goodwin was to ascertain the

precise nature of those crimes, and the identity of

VVAW members to whom criminal liability might

attach. The grand jury was to function in the first

instance as an investigative tool, rather than in its

more familiar guise as a deliberative body deciding

whether to return indictments for specific crimes on

the basis of evidence gathered and presented by a

public prosecutor. The grand jury proceeding in this

case was designed as a broad scale investigation into

possible illegal activity by the VVAW or its members.

The Fifth Circuit in Beverly characterized it as such

by saying (at p. 735 of 468 F. 2d) that “[t]he grand

jury was investigating alleged plans of the VVAW to

disrupt the Republican National Convention in Miami,

Florida, to be held the week of August 21, in violation

of various criminal statutes.”

Several pieces of evidence may be adduced in sup-

port of this proposition. First, many more VVAW

members were subpoenaed to appear before the grand

jury than were ever indicted. Second, the indictments

which the Government did obtain were returned

despite the fact that none of the VVAW members

subpoenaed actually testified. Third, appellee Briggs

was subpoenaed a month after the original group of

257-916—78——-4

28a

subpoenas was issued, and appellees Briggs and Mi-

chelson were indicted more than three months after

appellant’s investigation began. The ongoing character

of the grand jury process in this case helps to con-

vince us that appellant had embarked on what was

fundamentally a fact-finding mission, and that his false

statement to the court, if such it was, was intended to

improy the prospects for that endeavor’s success.

We mention one further reason for our conclusion

that the absolute immunity contemplated by Imbler

does not cover this case. As Judge Leventhal observed

for this court in Apton, supra, absolute prosecutorial

immunity for behavior ‘‘intimately associated with

the judicial process’’ is “both justified and bounded

by the judicial traditions and procedures that limit

and contain the danger of abuse.” 506 F. 2d at 93.

When prosecutorial activity is properly classifiable

under the “quasi-judicial’’ rubric, ‘“‘the circumstances

typically provide alternative instruments of the ju-

dicial branch to check misconduct—the discretion of

the grand jury, the procedures of a trial, and the po-

tential sanction of discipline imposed by the court

itself.’’ Id. at 94. In theory, of course, appellant faces

both criminal and professional penalties for any mis-

representations he may have made to the federal dis-

trict court in Florida. However, the passage of four

and a half years without any apparent official in-

quiry, even by the court to which the seeming mis-

statement was made, into appellants’ conduct in July

1972 underscores the fact that such restraints on

prosecutorial excesses are likely to remain theoretical

only. The demonstrably negligible probality of official

discipline thus detracts from the significance of the

third safeguard enumerated in Apton.

29a

Even were this not so, the first two potential checks

suggested in Apton were totally absent here. As indi-

cated above (see the discussion of Imbler following

note 8 supra), typical civil suits against prosecuting

attorneys involve allegations of malicious prosecution,

deliberate use of false testimony, or deliberate sup-

pression of exculpatory evidence. In all these situa-

tions, jury discretion is brought to bear in evaluating

the persuasiveness of the prosecution’s presentation,

and defense counsel enjoys the opportunity to employ a

variety of procedural devices to challenge the accuracy

of the Government’s position and thereby to preserve

the integrity of the truth-seeking enterprise. Here, no

jury assessed the credibility of appellant’s assertion

that no Government informants were included among

the subpoenaed VVAW members. In addition, appel-

lees and their counsel were required to accept appel-

lant’s representation on faith. The court, which put

the one and only question asked, did not explore the

basis for appellants denial that informants were pres-

ent in appellees’ camp, and appellees’ effort to pursue

the matter further through questioning was not per-

mitted. Given, therefore, not only the character of ap-

pellant’s statement as protective of the investigation

so he proposed to conduct it, but also its peculiar in-

sulation from probing examination and jury appraisal,

we regard absolute immunity as inappropriate in this

case. It may of course be true that appellant’s answer

to the court’s question was made in perfect good faith,

but that is a matter open to demonstration under

qualified immunity.

The dissent, stressing that the gravamen of appel-

lees’ complaint concerns an act committed on the wit-

ness stand, seeks to resolve the dispute before us by

30A

reference to the common law doctrine of witness im-

munity. The dissent asserts that “[i]t thus becomes

necessary in these opinions to treat both prosecutorial

and witness immunity.” Whatever else may be said of

this approach, it inevitably involves consideration of

subjects neither briefed nor argued on this appeal.

Presumably, appellant’s failure to raise the witness

immunity point on appeal is attributable to the Dis-

trict Court’s refusal to certify that matter for immedi-

ate interlocutory appeal under 28 U.S.C. § 1292(b)

(1970).** We address it only because the dissent treats

it as dispositive.

Appellant’s initial motion to dismiss, filed July 22,

1974, alleged lack of subject matter jurisdiction and

absolute immunity from any suit based upon appel-

lant’s conduct “while acting in his official capacity * * *

as a Special Attorney of the United States Depart-

ment of Justice and Federal prosecutor” responsible

for the VVAW investigation and grand jury proceed-

ing. That motion was denied by the District Court’s

order of November 20, 1974. Nearly a month later,

appellant filed a new motion to dismiss grounded on

witness immunity. In an order issued March 4, 1975,

the District Court (1) denied the second motion to

dismiss, (2) certified the November 20 order for inter-

locutory appeal under § 1292(b), and (3) expressly

** That statute, in pertinent part, reads as follows:

“When a district judge, in making in a civil action an order

not othewise appealable under this section, shall be of the opinion

that such order involves a controlling question of law as to which

there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the ul-

timate termination of the litigation, he shall so state in writing

in such order. The Court of Appeals may thereupon, in its discre-

tion, permit an appeal to be taken from such order, if applica-

tion is made to it within ten days after the entry of the order * * *.”

3la

refused to certify for that purpose the March 4 order

involving witness immunity.

In enacting § 1292(b), Congress vested in the dis-

trict judge power to determine which orders in-

volve controlling questions of law appropriate for

interlocutory review. In light of this statutory

scheme, it is not surprising that government counsel

representing appellant apparently believed that the

witness immunity issue was not before this court,

but rather was preserved for ultimate review of a

final judgment in this law suit. Since § 1292(b) pro-

vides in terms of appeals from orders, as distinct

from the controlling questions of law identified by

the district judge, it has been suggested that, when a

particular order is the subject of an interlocutory

appeal under § 1292(b), all other issues relevant to

the result reached by that order should be open for

appellate consideration.” This position is not yet

firmly established in reported decisions. Moreover,

even if we were to accept it without reservation, its

force would be substantially diminished in the present

context where the order certified for appeal is a

separate order from the one denying the witness

immunity motion.

We do not pursue the matter for the reason that

a majority of the panel are of the view that, given

the desirability of avoiding further proceedings in

the trial court if appellant is in fact shielded by an

absolute immunity of any kind, we may, and should,

address the witness immunity point pursuant to what

the Supreme Court has recently termed “the so-called

18 See Note, Interlocutory Appeals in the Federal Courts Un-

der 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607, 628-29 (1975),

and. Johnson v. Alldredge, 488 F. 2d 820, 822-23 (3d Cir. 1973),

cert. denied, 419 U.S. 882 (1974).

32a

‘collateral order’ exception to the final judgment rule

first announced in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949) * * *,” Abney v.

United States, 45 U.S.L.W. 4594, 4595 (U.S. June 9,

1977) (pre-trial order denying motion to dismiss

indictment on double jeopardy grounds appealable

immediately). Since appellant’s claim of absolute

witness immunity can be said to be collateral to, and

separate from, the issue of his liability to be explored

at trial, and since absolute immunity is designed to

protect against amendability to suit itself as well as

to a verdict of liability at trial, the theoretical funda-

tions of the collateral order doctrine, at least as they

are characterized in Abney, may be thought to be

present here.

*%* The writer of this opinion, although prepared to deal with

the merits of the witness immunity question, does not subscribe

to the view that that question is before us. At issue in Cohen was

the applicability in a federal stockholders’ derivative suit of a

state statute requiring the giving of security for costs and attor-

ney’s fees before such a suit could proceed. Referring to the Dis-

trict Court’s resolution of the matter, the Supreme Court stressed

that the disposition “will not be merged in final judgment. When

that time comes, it will be too late effectively to review the present

order and the rights conferred by the statute, if it is applicable,

will have been lost, probably irreparably.” 337 U.S. at 546. By

contrast, in the case before us, it is indisputable that the witness

immunity question is preserved in the record and will be avail-

able for review upon appeal of any final judgment in the action.

Moreover, as Professor Moore points out, the collatera! order

doctrine “emerged at a time when the final judgment rule was

inflexible. Much has happened since. The Interlocutory Appeals

Act of 1958 made potentially appealable very nearly all orders

that at present serious, undecided questions * * *.” 9 Moore’s Fed-

eral Practice $110.10, at 135-36 (2d ed. 1975). Where, as here, that

Act was invoked unsuccessfully, the collateral order doctrine was

not intended to be employed as a vehicle for appellate revision of

the essential determination committed by Congress to the District

Court.

33A

We turn to the merits without the customary benefit

of briefing and argument by the parties, but we doubt

that appellant would seriously undertake to maintain

that he was an ordinary witness. Although he was

called upon by the court to make a representation of

fact in a courtroom after being sworn, that act did

not involve giving testimonial evidence in the usual

sense at a trial or even before grand jurors. He was

directed to do so by the court in order promptly to

get a representation from counsel on the record under

oath, and thereby to lay to rest the legitimate claim

of appellees that they were entitled to know, before

submitting to the compulsion of the subpoenas,

whether their number included Government under-

cover agents.

That claim raised a question going to the very

integrity of the manner in which the grand jury pro-

ceeding was being conducted. Had appellant volun-

teered to represent as an officer of the court that no

informers were involved, and had the parties been

content with that, there would be no issue as to wit-

ness immunity worthy of the name. The difference be-

tween the falsity of such a nontestimonial representa-

tion, on the one hand, and the technical consequence

of perjury attached to a statement under oath, on the

other, is not at the heart of the immunity issue in this

appeal. The question is whether appellant is wholly

immune from a civil suit based upon his utterance of

an allegedly false statement in the context of counter-

ing a challenge to the manner in which he was con-

ducting a grand jury inquiry.

The statement assailed here was prompted by, ant

directly incidental to, appellant’s status as a prosecu-

tor managing and administering an investigation. Ap-

pellant’s unqualified negative response to the district

judge’s plain and abrupt question was essential to

34a

the forward progress of the grand jury investigation,

for which appellant as a federal prosecutor had been

charged by his superiors with the responsibility. To

the extent that appellant’s one word answer is viewed

as a testimonial act, it was one occasioned by, and

critical to, appellant’s discharge of that responsibility.

The dissent thus is unrealistic in treating appellant

not as a prosecutor managing and directing an in-

vestigation but rather as an ordinary witness sum-

moned to give his evidence in a legal proceeding. It is

obvious from the transcript that the court did not

consider appellant to be an ordinary witness. It

ordered him to take the stand; it asked him one

question; and it forthwith excused him. Indeed, when

appellees’ counsel sought leave to cross-examine, the

court denied it. The policies underlying the common

law doctrine of witness immunity are tangential, and

essentially irrelevant, to the question of whether ap-

pellant—a prosecutor functioning in an investigative

context—should be accorded complete invulnerability

to suit for the consequences of an act performed in

that capacity.

Our holding on this aspect of the appeal rests on

the foregoing considerations, and it is, accordingly, of

a piece with what we have said earlier in this opinion

with respect to the prosecutorial immunity issue

certified by the District Court. If we have miscon-

ceived the precise scope of Imbler, then our finding of

qualified, as distinct from absolute, immunity on the

facts of this case will fall. But that result, in our sub-

mission, will not be because appellant’s answer to the

question put to him by the court was given from the

witness stand. It will be because that act will be

deemed, even under the special circumstances of this

case, not to come within the prosecutorial administra-

tive and investigative functions reserved by Imbler.

35a

Having thus made clear that in our view this record

in truth raised no issue of witness immunity to be cer-

tified by the District Court as ‘‘a controlling question

of law as to which there is substantial ground for dif-

ference of opinion,” and that the resolution of this

uncertified question is encompassed in our holding on

the certified question, it remains appropriate to ap-

pend our reservations about the indiscriminate claims

made by the dissent for common law witness

immunity.

First, the immunity of witnesses at common law

was not as monolithic as the dissent might suggest.

The comprehensive rule announced by Lord Mansfield

in 1772 and reproduced in the dissent was not bor-

rowed in its entirety by the majority of American

jurisdictions. While most American courts do speak

of an absolute witness immunity, they commonly

temper the reach of their decisions by imposing a sup-

plementary requirement of pertinency or relevancy.

See, e.g., Myers v. Hodges, 53 Fla. 197, 208-09, 44 So.

357, 361 (1907) (“In the United States, according to

the overwhelming weight of authority in order that

defamatory words, published by parties, counsel, or

witnesses in the due course of judicial procedure, may

be absolutely privileged, they must be connected with

or relevant or material to the cause in hand or subject

of inquiry’’) ; McDavitt v. Boyer, 169 Ill. 475, 48 N.E.

317 (1897); Barnes v. McCrate, 32 Me. 442 (1851);

and Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607

(1902).

We cite these authorities not to imply that appel-

lant’s answer in this case was not responsive to the

judge’s question, but only to indicate that the more

extreme English rule espoused by Lord Mansfield was

not wholeheartedly embraced by most American juris-

dictions. Furthermore, despite the broad and dogmatic

36a

language employed by many American courts, one

does encounter occasional common law opinions which

cast some doubt upon the extent to which absolute

witness immunity protects knowingly false testimony.

See, e.g., Liles v. Gaster, 42 Ohio St. 631, 636 (1885)

(“What [a witness’] liability * * * may be, if he was

guilty of intentional falsehood, and actual malice, we

need not here determine, as the case made does not re-

quire it’).

We observe further that the dissent does not refer

us to cases which establish the existence and scope of

witness immunity under federal common law." As

noted earlier (see note 8 supra), even where common

law torts are alleged, the immunity to be conferred

on federal officials is governed by a federal standard,

which need not be identical to the standard applied

in a particular state or even in the majority of states.

Finally, it is far from clear that, as the dissent

asserts, a witness should enjoy the same measure of

immunity, regardless of whether the wrong of which

he is accused rises to constitutional dimension. What-

ever the precise nature of the immunity accorded to

witnesses at common law, that immunity applies with-

out distinction to any individual serving as a witness

** The only case which the dissent is able to cite is Brawer v.

Horowitz, 535 F. 2d 830 (3rd Cir. 1976), which did not even ad-

dress the issue of the appropriate standard of witness immunity

as a matter of federal common law. Rather, the court in Brawer

simply determined that witness immunity should be applied in

an action alleging “constitutional defamation,” id. at 837, as op-

posed to the common law tort of defamation. In its brief discus-

sion of the witness immunity issue in that case, the court failed

even to recognize that, having decided that witness immunity

was applicable to a Bivens-type action, it was free to construct a

rule of immunity under federal common law different from that

which it thought would be applied as a matter of state common

law.

37a

in a judicial proceeding. On the other hand, where a

constitutional infringement is alleged, the defendant-

witness will almost invariably be a Government offi-

cial. (At minimum, the “under color of law” require-

ment will assure some direct government involvement

in the challenged testmony.) This is a crucial differ-

ence. Policy considerations counselling the insulation

of private citizens from civil liability arising from

their performance as witnesses do not apply with

equal force when a complaint charges that constitu-

tional rights have been violated by a public employee

operating from the witness stand.

The unique importance of constitutional rights

hardly needs restatement. Both Congress and the Su-

preme Court have created special causes of action to

provide a remedy for official misconduct which in-

fringes constitutionally protected interests. Given this

notably solictious attitude toward the effectuation of

constitutional guarantees, it can be asserted with both

reason and authority that absolute immunity is not to

be extended to the constitutional tort context absent

the most compelling justification.

Indeed, in Scheuer v. Rhodes, supra, the Supreme

Court, confronted with two of its own decisions which

accorded federal executive officials absolute immunity

from common law damage actions, nevertheless

granted only a qualified immunity to high-level state

executive officials sued for constitutional violations

under § 1983. See 416 U.S. at 247. Extensive discus-

sion of this point may be found in Judge Celebrezze’s

dissent from the Sixth Circuit’s opinion in the same

ease, Krause v. Rhodes, 471 F. 2d. 430, 453-59 (6th

Cir. 1972), rev’d, 416 U.S. 232 (1974). See also States

Marine Lines, Inc. v. Shuttz, 498 F. 2d 1146, 1159 n.

12 (4th Cir. 1974); Norton v. McShane, 332 F. 2d 855,

860-61 (5th Cir. 1964); Burkhart v. Sazrbe, 397 F.

38a

Supp. 499, 502 n. 3 (E.D. Pa. 1975) ; and Note, Dam-

ages for Federal Employment Discrimination: Sec-

tion 1981 and Qualified Executive Immunity, 85 YALE

L. J. 517-518 & n. 54 (1976). But see Brawer v. Horo-

witz, 535 F. 2d 830, 836-37 (3d Cir. 1976) (witness

immunity issue only reached after court asswmed that

private citizen testifying for federal government in

criminal prosecution would be amenable to Bivens-

type suit seeking damages for deprivation of con-

stitutional rights by a federal official); Fidtler v.

Rundle, 497 F. 2d 794, 798 (3d Cir. 1974); Johnson

v. Alldredge, 488 F. 2d 820, 826-27 (3d Cir. 1973),

cert. denied, 419 U.S. 882 (1974); Bauers v. Heisel,

361 F.. 2d 581, 586-91 (3d Cir. 1965) (en banc), cert.

denied, 386 U.S. 1021 (1967); and Hahn v. Sargent,

388 F. Supp. 445, 452 (D. Mass.), aff’d on other

grounds, 523 F. 2d 461, 467 (1st Cir. 1975), cert.

denied, 425 U.S. 404 (1976).

Even where the Supreme Court has followed the

common law example in determining that absolute im-

munity is appropriate in a constitutional tort setting,

the Court has explicitly recognized that it was in no

way bound by precedent to to reach the result it did.

See, e.g., Imbler, supra, 424 U.S. at 424; Pierson,

supra, 386 U.S. at 554-55; and Tenney v. Brandhove,

341 U.S. 367, 376 (1951).

Since, for the reasons outlined above, we do not be-

lieve that appellant is protected by the absolute

prosecutorial immunity described in IJmbler, and since

we are unable to join in the dissent’s interpretation of

the impact of witness immunity on this case, the

November 20, 1974 order of the District court deny-

ing appellant’s motion to dismiss is affirmed. .

It is so ordered.

Wiikey, Circuit Judge, dissenting: * We are con-

fronted at the outset by the inescapable facts that de-

39a

fendant Goodwin 1s a prosecutor and that the indict-

ment made the subject of this civil suit for damages

occurred in the courtroom, the native habitat of

judges, jurors, prosecutors, and witnesses—all of

whom having, and from time immemorial having had,

absolute immunity from civil suit as essential partici-

pants in the judicial process. The normal role of the

Prosecutor in the courtroom is as Advocate; his

actions are those of a spokesman advocating the cause

of his client, the government, state or federal. In

this particular case Goodwin perhaps was, for a mo-

ment at least, also cast in another role, that of Wit-

ness; his action was to answer a specific question of

the court. The plaintiff claims that answer was false,

and now sues Goodwin for perjury. Perjury is the act

of testifying falsely. It is not the act of “administer-

ing” or “investigating” anything.

* OUTLINE

Introduction.

I. Prosecutorial Immunity “As An Officer of the

Court” Whose “Activities Were Intimately Asso-

ciated With the Judicial Phase of the Criminal

Process.” Introduction.

A. Imbler v. Pachtman—Balancing of the

Interests Held to Require Absolute Im-

munity for the Prosecutor.

B. Application of Immunity Doctrine to

Goodwin. )

C. The Majority’s Extraordinary Miscon-

ception of the Prosecutor’s Role With

the Grand Jury.

D. The Prosecutor Divested.

II. Witness Immunity.

A. The Prosecutor-Witness Transformed.

40a

B. Extraordinary (and Apparently Unfor-

seen) Consequences of a Qualified Im-

munity Rule for Witnesses.

C. Absolute Immunity for Witnesses—Su-

preme Court Precedent, Logic, Policy,

and History.

D. Absolute Immunity for Counsel.

IIT. Reviewability of Witness Immunity Issue.

Conclusion.

The majority painstakingly reviews the recent deci-

sions on prosecutorial immunity, particularly Mr.

Justice Powell’s opinion for the Supreme Court in

Imbler v. Pachtman,’ which accord absolute immu-

nity to the prosecutor, not because of his “official

status,” * but because of “the nature of the official be-

havior” * in his role essential to the judicial process.

The cases cited universally hold that the prosecutor

while functioning as an advocate (and thus as part of

the judicial process) is entitled to absolute immunity ;

they also either hold, or leave open the question as to

exactly where the line is to be drawn (as Justice

Powell did in Imbler),‘ that “administrative’’ or “in-

vestigative” duties of the prosecutor are entitled only

to a qualified immunity. The majority opinion agrees."

Thus the majority finds it necessary to take Good-

win completely outside the role of prosecutor con-

nected with the judicial function. In the face of the

undeniable facts of this case—that Goodwin was in

the courtroom, before a sitting judge, appearing as

counsel of record in a judicial proceeding, actively

1424 U.S. 409 (1976).

* Maj. op. at 20.

* [bid.

* Imbler, supra at 430-31 and n, 33.

> Maj. op. at 17, 20.

41a

performing those duties associated with trial advo-

cacy, when he answered a question from the trial

judge—the majority finds that his answer to the ques-

tion was not, in the language of Imbler, an “integral

part of the judicial process.’’* The starting point for

the majority’s analysis is the statement in Imbler that

“We recognize that the duties of the prosecutor in his

role as advocate for the State involves actions prelim-

inary to the initiation of a prosecution and actions

apart from the courtroom.’’’ The Supreme Court goes

on to describe what these actions are, and concludes,

“At some point, and with respect to some decisions,

the prosecutor no doubt functions as an administrator

rather than as an officer of the court.’’*

The Court in Imbler thus differentiated between the

prosecutor functioning “as an administrator’’ and “as

an officer of tae court.” On the former the Court

reserved decision as to the immunity accorded; on the

latter, when the prosecutor is functioning “as an of-

ficer of the court,’’ the Supreme Court unequivocally

held the prosecutor has absolute immunity. On the

facts of Goodwin’s case, can the majority deny that

he was functioning “as an officer of the court”? Good-

win was in the courtroom before the U.S. District

Judge as lead counsel for the United States. Could

* Imbler, supra at 430.

* Jd. at 431 n, 33. (Emphasis added.)

® Ibid. (Emphasis added.)

® The Court’s holding was thus explicitly delineated : “We have

no occasion to 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 advocate. We hold that in initiating a prose-

cution and in presenting the State’s case, the prosecutor is immune

from a civil suit for damages under § 1983.

Imbler, supra at 430-31. (Emphasis added.)

42a

there be a more classic role “as an officer of the

court’’?

This points up the majority’s startling weakness:

There is not one word in Imbler, or in any of the

numerous other cases cited by the majority, which

describes an action similar to that of Goodwin here

as being outside the prosecutor’s (or witnesses’s)

absolute immunity. The only references in Imbler

and all the other cases cited talk of ‘‘investigative”

or “administrative” tasks inherent in the prosecu-

tor’s usual job as being outside absolute immunity.

My colleagues have apparently found no case which

cites, by way of holding or dicta, any action by a

prosecutor inside the courtroom as being outside his

role of prosecutor.”® Goodwin’s actions were not ”ac-

2° T cannot understand the majority’s interjection of the thought :

“Lest his stress on the advocacy function suggest that the Court

was contemplating a mechanical immunity test based solely upon

whether alleged prosecutorial misconduct occurred in court dur-

ing the course of a trial, Justice Powell added a few words of

elaboration in the margin.” Maj. op. at 16. The few words are the

Court’s footnote 33. If the reader here will go back to Maj. op. 16,

and read the Supreme Court’s language again, he will find that

every reference to prosecutorial activity which is deemed within

absolute immunity, is to activity outside the courtroom.

There is no reference to prosecutorial activity inside the court-

room which is deemed outside the advocate’s role and thus outside

absolute immunity. If Justice Powell, writing for the Court, had

wanted to make the point my colleagues try to make, surely he

would have given at least one example of prosecutorial activity

inside the courtroom which the Court considered might be outside

the advocate’s role and thus not entitled to absolute immunity, But

he did not because he had in mind no such theory, because he =

making the point, and this only, that the prosecutor’s advocacy

role properly embraced activity both inside and outside the court-

room; there was absolutely no inference that in his activity inside

the courtroom he could be characterized as “an administrator or

investigative officer.”

Thus, from note 33 alone of the Supreme Court’s opinion we

43a

tions preliminary to the initiation of a prosecu-

tion,” * nor were they “‘actions apart from the court-

might draw a conclusion directly contrary to that of the majority,

a conclusion fatal to its attempt to label Goodwin’s reply or testi-

mony as “an act of investigation” devoid of any character of either

advocacy or witness.

The majority's reading of note 33, that it implies that some ac-

tions of a prosecutor during judicial proceedings are nonetheless

outside absolute immunity, is further undercut by the Jmbler

Court’s disposition of the separate view that Justice White ad-

vanced, According to Justice White, absolute immunity was justi-

fied for charges of use by a prosecutor of perjured testimony but

not for charges of suppression by a prosecutor of exculpatory in-

formation. In specifically disagreeing with Justice White’s view,

the /mbler majority rejected this opportunity to acknowledge that

particular courtroom conduct by a prosecutor might be accorded

only qualified immunity, contending, inter alia, that, “the distinc-

tion is not susceptible of practical application.” Jmbler, supra at

431 n. 34. This rejection is the rejection of the theory relied on by

the majority (p. 28) that absolute immunity should be denied

prosecutor or witness where his conduct is such that its validity

cannot be tested under the adversary process of the courtroom.

11 Imbler, supra at 431 n. 33. The majority contends, to the

contrary, that at the time of the alleged perjury Goodwin and

the grand jury were not engaged in “the initiation of a prose-

cution,” ibid. According to the majority, the grand jury here

was not functioning in its “familiar guise as a deliberative body

deciding whether to return indictments for specific crimes on

the basis of evidence gathered and presented by a public prosecu-

tor.” Maj. op. at 26. If that was so, how does the majority begin

to explain the fact that on the same day as Goodwin's alleged

perjury, 13 July 1972, the grand jury returned indictments against

siz of the appellees, charging them “with a variety of crimes cen-

tering around an alleged conspiracy to unlawfully disrupt the

1972 Republican National Convention”? Maj. op. at 5. The more

logical inference to draw from the fact that Goodwin’s alleged

perjury took place on the same day as the return of the indictments

is that Goodwin at that time was engaged in “the initiation of a

prosecution.” |

257-916—78—_5

——

44a

room”; he was right in the middle of the court-

room and right in the middle of a grand jury

proceeding, the time-honored method for ‘‘initiating

a prosecution.” ** The grand jury is an arm of the

court. Goodwin was functioning ‘‘as an officer of the

court.” Goodwin’s ‘‘activities were intimately asso-

ciated with the judicial phase of the criminal process,

and thus were functions to which the reasons for

absolute immunity apply with full force.” ™*

To my mind Goodwin was a prosecutor functioning

‘fas an officer of the court,” and entitled to the

prosecutor’s absolute immunity under IJmbler v.

Pachtman. Yet it is undeniable that Goodwin was

sworn as a witness, for a brief moment took the

witness stand, and answered one question. My col-

leagues hold that after Goodwin took the oath as a

witness he was acting as an investigator—a strange

conclusion—and, after he took the oath as a witness

(in addition to his oaths as attorney and prosecutor)

he ceased to be ‘‘an officer of the court”—to my mind

an equally strange conclusion.

Both of these conclusions are necessary if the ma-

jority is to package Goodwin as an ‘‘investigator” or

‘‘administrator,” for it is only if he can be so labelled

that he can be deprived of the absolute immunity

of the prosecutor under Imbler and countless other

eases. That this is a strained and distorted result

should be apparent, as it is so obvious that if Good-

win was not functioning as a prosecutor in his role

“as an officer of the court,” then he was functioning

as a witness—and each is entitled to absolute

immunity.

12 Imbler, supra at 431 n. 33. :

13 Imbler, supra at 431, quoted in note 9, supra.

14 Imbler, supra at 430.

45a

It thus becomes necessary in these opinions to

treat both prosecutorial and witness immunity.” I

shall first turn to the absolute immunity of the pros-

ecutor as analyzed and affirmed by the Supreme

Court in Imbler v. Pachtman (1976), then to the

absolute immunity of the witness. To some extent the

discussion must interweave, for both are part of the

seamless web of immunity held for centuries to be

essential to the functioning of an effective judiciary.

I. Prosecutor1aL Immunity “As AN OFFICER OF THE

Court’? Wuose “Activities WERE INTIMATELY

ASSOCIATED WITH THE JUDICIAL PHASE OF THE

CRIMINAL PROCESS”

We are all agreed that Goodwin’s action was taken

within the scope of his duty; it is further the case, I

submit, that his action involved the exercise of signif-

icant discretion.” He is thus entitled to some sort of

**The majority opinion (pp. 28-29) explains the procedural

situation, Both prosecutorial and witness immunity were raised

and briefed below. See also Part III, infra.

that the action of responding to the court’s question was not within

the scone of his duty. Maj. op. at 7-9. However, the opinion for

the majority describes an alternative ground for the decision not

to confer absolute immunity in this case, namely, that Goodwin’s

answer to the judge’s question can be considered a nondiscretion-

ary action. See Maj. op. at 9-10, n. 6, Although it is unclear

whether my colleagues are adopting this contention as a basis for

their decision, it does call for some careful consideration, as it can,

under the case law, be taken as an alternative ground for their

holding.

Two of the traditional conditions for any immunity, qualified

or absolute, have been that the officer was acting within the scope

of his authority and that the action undertaken was of a discre-

tionary nature. After reversing the District Court’s conclusion

that Goodwin’s statement was outside the scope of his authority,

46a

immunity protection, qualified or absolute. “The pro-

cedural difference between the absolute and qualified

the majority turns in its note six to the question of whether the

statement was discretionary in nature. With respect to the con-

tinued relevance of this question, the majority states:

“Recent Supreme Court decisions have generally avoided the

“ministerial-discretionary language in favor of analysis focusing

directly on the need for differing levels of protection in connection

with different official functions, the performance of which has

given rise to damage claims. See, e.g., Jmbler v. Pachtman, 424

U.S. 409 (1976) ; Wood v. Strickland, 420 U.S. 308 (1975) ; and

Scheuer v. Rhodes, 416 U.S. 232 (1974).”

With this statement, I understand the majority to mean that

the question of whether an action is discretionary in nature 1s es-

sentially irrelevant to the immunity issue and that it will seek

to determine the applicability of /mb/er in this case regardless of

how the act is characterized. Having suggested that, the majority

nonetheless characterizes the action as nondiscretionary. A

“However, we note in passing that under a more traditional

approach, appellant’s act of answering a single inquiry from the

court, an inquiry which plainly called for a sunple affirmative or

negative response, might well have been classified as a ministerial,

rather than a discretionary, act, and thus accorded at best a quali-

fied immunity.” - wae

If the now errs in considering the “ministerial-discretion-

ary” distinction to be outdated, the statement above becomes of

critical importance because, as the majority notes, according to

this traditional distinction, a nondiscretionary action is entitled

to “at best a qualified immunity.” Heh ae

My disagreement with the majority’s argumentation is two-

fold: first, I believe that under the recent Supreme Court deci-

sions the question of whether an action is discretionary in nature

is still a material determination for purposes of immunity, and

second, I believe that on the basis of this record the statement

of Goodwin did involve the performance of a discretionary act.

1. As to the first point, I submit that the language of recent

decisions does not indicate an abandonment of the traditional

approach. On the contrary, for example, in both /mbler, supra

at 426, and Wood v. Strickland, 420 U.S. 308, 321 (1975), the

Court expressly speaks of the need to protect the exercise of

officials’ discretion in justifying the provision of immunity. And

47A

immunities is important. An absolute immunity

defeats the suit at the outset, so long as the official’s

in a recent case not cited by the majority, Doe v. McMillan, 412

U.S. 306 (1973), the Court evidenced by its holding and its anal-

ysis that the presence of discretion in the action undertaken is

still material to the provision of immunity.

The relevant question in Doe was whether the Public Printer

and the Superintendent of Documents were entitled to absolute

immunity as federal officials under Barr v. Matteo, 360 U.S. 564

(1959), for their part in printing and distributing a Congres-

sional report containing material which was said to invade the

privacy rights of various District of Columbia school children.

The Supreme Court looked first at the statutory duties of these

officials and found that they had acted within the scope of their

authority. See Doe, supra at 321-22. But the Court stated that

the inqury went beyond authorization, and, finding no discretion

on the part of the Printer and the Superintendent in deciding

whether to print or to distribute the report, Doe, supra at 323,

the Court held unavailable the absolute immunity for federal of-

ficialsof Barr v. Matteo.

In short, then, as far as the absolute immunity of Barr was

concerned, it was lost, simply enough, because the action under-

taken was “ministerial,” or involved the exercise of no discretion.

Having no independent immunity under Barr, the Printer and

the Superintendent were left with whatever immunity would

derive under the Speech or Debate Clause from the Congressmen

who directed their action. On remand, after further findings, the

Printer and the Superintendent were given absolute immunity

because the Congressmen, at whose direction they acted, would

have had absolute immunity had they themselves made copies of

the material and distributed them in like manner. Doe y. Me-

Millan, No. 75-2016 (D.C. Cir. 29 July 1977).

At noted, the majority opinion does not cite or discuss Doe

in relation to its proposition. The majority may believe that

it would be a “salutary” development to abandon the “discre-

tionary” distinction as a material element, but the Supreme

Court cases on the personal immunity of officials do‘not, I believe,

establish an abandonment of the traditional approach.

2. Having set out my own view that the “ministerial-discretion-

ary” distinction is still material to the official immunity doctrine,

48a

actions were within the scope of the immunity. The

fate of an official with qualified immunity depends

upon the circumstances and motivations of his actions,

as established by the evidence at trial.’’™

The decision whether qualified or absolute immunity

is appropriate involves a balancing of the interests

which would be benefited and impaired by application

of either of the two doctrines. The decisions of the

Supreme Court which have made this choice have

weighed the ineremental loss in litigant rights and

remedial relief against the enhancement of govern-

mental functioning resulting from the absolute as

opposed to the qualified immunity. As a result of this

balancing the Court has devised rules of absolute or

it remains to determine the nature of Goodwin’s action here. The

majority’s view is that his “act of answering a single inquiry from

the court, an inquiry which plainly called for a simple affirma-

tive or negative response” ought to be considered a “ministerial”

act, involving the exercise of no discretion. I would disagree:

Goodwin’s decision as to precisely how the question should be

answered did entail an element of judgment, thus making his

action discretionary for purposes of official immunity.

As outlined in note 32, infra, there may be a basis in the record

for a belief by Goodwin that the FBI agent was noé represented

by counsel, thus taking him out of the judge’s question as it was

phrased. Fairly taking into account the possibility of that belief,

there is clearly injected an element of judgment in the answer. Of

course, I am expressing no view of the reasonableness of this pos-

sible belief by Goodwin, but I am saying that with the real possi-

bility of this belief—which then allowed for a choice among an-

swers—that Goodwin’s testimony, like the usual testiniony, was

discretionary in nature. As an exercise of discretion, this action

within his authority is thus entitled to absolute immunity, for

this prosecutor was acting in his capacity as officer of the court,

and, indeed, as a witness.

** Imbler, supra at 419 n. 13.

49a

qualified immunity for various classes of officials, as

defined by function.”

Our role in applying these rules, where the Court

has devised them, is to make a proper characteriza-

tion of the function being performed by the official in

question. Our role, however, is not to engage in a par-

ticularistic rebalancing of all the relevant policies to

determine whether absolute or qualified immunity is

appropriate in this case. Our analysis instead is fune-

tional: was this action undertaken in the prosecutor’s

capacity as an officer of the court, or, put another way,

a government advocate in a courtroom setting? If this

prosecutor should be so characterized, then he is en-

titled to absolute immunity under Imbler v. Pacht-

man. In Imbler the Court itself balanced the compet-

ing policies and mandated absolute immunity for the

prosecutor in his role, very broadly conceived, as

courtroom advocate.

A. Imbler vy. Pachtman—Balancing of the Interests

Held to Require Absolute Immunity for the

Prosecutor.

In order to make a more informed application of

the Imbler rule, it may be helpful to set out the poli-

cies which underpin it. While our role, as noted, is not

to make a de novo balancing of these policies in this

case, an understanding and appreciation of the poli-

cies may contribute to a proper characterization of the

prosecutor’s protected role under Imbler. At the out-

set the Imbler Court recognized that § 1983, although

it creates a cause of action for deprivation of con-

stitutional rights, does not constitute a flat bar to

8 See, ¢.g., Wood v. Strickland, supra at 322 (school board

member acting in the “context of school discipline”—qualified

immunity); Jmbler v. Pachtman, supra at 431 (prosecutor as

advocate in the judicial process—absolute immunity).

50a

immunity doctrine,” and proceeded to consider the

other factors, which, under its balancing approach,

related to the choice of qualified or absolute immunity.

Recognizing the prosecutor’s absolute immunity at

common law from actions for malicious prosecution,

the Court found equally applicable to actions under

§ 1983 the several rationales for this common law

immunity.” Most importantly these included the ‘‘con-

cern 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 independ-

ence of judgment required by his public trust.’’”

The Court noted that these twin hazards of diversion

of energies and biasing of decision-making are, for

several reasons, especially acute in the case of a pros-

ecutor. Acting as he does under serious constraints

of time and information, a prosecutor would ‘‘face

greater difficulty in meeting the standards of qualified

immunity than other executive or administrative of-

ficials.” * Further, the sheer number of decisions

which a prosecutor must make that ‘‘could engender

colorable claims of constitutional deprivation’’ means

that a demonstration of good faith in every case

“could impose unique and intolerable burdens.

*& & #99 23

The net harm of allowing only a qualified immunity

in the performance of prosecutorial functions was not

confined, therefore, to the “‘substantial danger of lia-

bility even to honest prosecutors,” or even to the

19 Imbler, supra at 417.

2° Td. at 424.

1 Jd. at 423.

22 Td. at 425.

*3 Td. at 425-26.

** Td. at 425.

5la

expenditure of great time and effort in defending

such suits. Most seriously, the denial of absolute im-

munity would adversely affect “the functioning of the

criminal justice system as a whole’’ ‘‘[T]riers of fact

* * * often would be denied relevant evidence” by

the creation of a systematic bias in the prosecutor

against incriminating evidence of sufficiently uncer-

tain pedigree as to support a colorable cause of

action.” And post-conviction review procedures might

well be biased in quite another way, against the con-

victed person, by “knowledge that a post-trial decision

in favor of the accused might result in the prosecutor

being called upon to respond in damages for his error

or mistaken judgment.” *

As final support for its holding that prosecutors are

absolutely immune ‘‘in initiating a prosecution and in

presenting the State’s case,” the Court noted that

the unavailability of suit under § 1983 for this cate-

gory of cases ‘“‘does not leave the public powerless to

deter misconduct or to punish that which occurs”—

for ‘‘a prosecutor stands perhaps unique, among of-

ficials whose acts could deprive persons of constitu-

tional rights, in his amenability to professional dis-

cipline by an association of his peers.’’* As a deter-

rent of even greater weight, ‘“‘[t]his Court has never

suggested that the policy considerations which compel

civil immunity for certain governmental officials also

place them beyond the reach of the criminal law.” ”

Taking all these policies into account, the Court con-

cluded, on balance, that for § 1983 damage suits, as at

*5 Td. at 426.

** Td. at 427. The Court indicates in footnote that the possibility

of personal liability could also dampen the prosecutor’s exercise

of his duty to expose “all significant evidence suggestive of in-

nocence or mitigation.” Jd. at 427 n. 25.

7 Td, at 431.

8 Td. at 429.

2° Ibid.

52a

common law, a prosecutor’s actions ‘‘intimately as-

sociated with the judicial phase of the criminal

process’’ were entitled to absolute immunity.”

B. Application of Immunity Doctrine to Goodwin.

We thus come to the question of whether defendant

Goodwin’s sworn testimony, to the effect that none

among the witness group represented by counsel was a

Government informant, falls within the absolute

prosecutorial immunity from damage actions estab-

lished by the Supreme Court. As developed in the

introduction, it would surely seem on its face that

Goodwin’s action during grand jury proceedings in

answering a question from the judge in his capacity

as lead prosecutor was action taken as an “officer of

the court.” * This was action within his scope of duty

which called for the exercise of discretion in its per-

formance, precisely the type of “quasi-judicial” funce-

tion within the absolute protection of Imbler.”

% Jd. at 430.

*\T regard it as clear beyond peradventure that the grand jury

character of the proceeding does not itself exclude applicability

of the immunity recognized in /mbler. Those proceedings are a

vital and customary part of the prosecutor’s job, potentially rais-

ing all of the considerations calling for immunity which the

Imbler Court considered. See Cawley v. Warren, 216 F. 2d 74

(7th Cir. 1954).

%2 According to the majority, however, Goodwin’s act of testi-

mony did not involve the exercise of discretion. Maj. op. at 10 n. 6

See n. 16 supra. This characterization is unrealistic. The act of

testifying, while compulsory in the sense that one in Goodwin’s

position cannot freely decline to answer the judge’s inquiries, is

nonetheless discretionary in that substantial judgment deter-

mines the nature of the testimony given. From the perspective of

a questioned party, whose knowledge and certainty on the point

of interest may be great or small, few inquiries can be said to have

but a single honest and correct answer. Discretion and choice de-

termine how best to respond, in view of the precise framing of the

question and the state of the witness’s knowledge.

534

In order to divest Goodwin of his protected prosecu-

torial function, the majority discusses at length num-

erous cases contrasting the prosecutor’s advocacy role

Goodwin’s answer indicates that it was no exception to the usual

discretionary nature of witness testimony. The question from the

trial judge was:

“Mr. Goodwin, are any of these witnesses represented by coun-

sel agents or informants of the United States of America?”

The answer of Goodwin, the witness, was:

No, Your Honor.”

Let us focus, for example, on one phrase in the question—“rep-

resented by counsel.” As the question is framed, it calls for disclo-

sure of the existence of any agent among the witnesses only if that

agent is “represented by counsel.” If Goodwin believed that the

U.S. agent, Emerson Poe, was not represented by counsel, then

he obviously had room for judgment about how to answer the

question. His answer could have been an unelaborated “no,” (as it

was), or a “no” with his assumption or qualification attached. Or

his answer could even have been itself a question for the judge or

counsel about the status of Poe. To see the possibilities of valid

answers which did exist, let us look at the record information

available to Goodwin.

On the day before Goodwin was asked his question, counsel

for the Vietnam Veterans Against the War/Winter Soldier Orga-

nization members orally read in court the names of eighteen poten-

tial witnesses who were the subjects of their concern. See

Transcript at 15, Appellant’s Appendix (App.) at 21. Then the

counsel began to identify which potential witnesses were repre-

sented by which counsel. Counsel did this by stating the name of

the potential witness, followed by the name or names of the counsel

representing him. Thus, in the selection below, for example, Mr.

Mahoney is represented by Mr. Broege. What follows is the court

proceeding as this related to Poe, the U.S. agent. Levine and Peter-

son are counsel for the VVAW/WSO members; Stafford is the

U.S. Attorney at the time. Transcript at 17, App., at 23.

Mr. Levine. Mr. Mahoney, Mr. Broege.

Mr. Camile, Miss Judy Peterson, and I have just been informed

that Mr, Poe, who I believe originally was not represented by

counsel—

Miss Doris Peterson. Just for the Sixth Amendment motion

that Your Honor ruled on the other day.

54a

with his duties related to investigation and admin-

istration. By page 21 the majority is ready to state:

* * * [W]e believe that appellant’s false

statement to the federal district court in

Florida is properly characterized as an act

of investigation rather than advocacy * * *.

[A]ppellant’s alleged perjury bears no relation

Mr. Levine. Now, many of these witnesses—I am sorry. Mr.

Reif and Doris Peterson.

Mr. Srarrorp. Was this Poe?

Mr. Levine. I would ask other counsel if they have any cor-

rected,

Especially read in light of the “[c]onsiderable confusion at-

tend[ant upon] the commencement of the grand jury proceeding,”

Maj. Op. at 3, it can fairly be said that the selection above also

suggests some confusion on this issue as well. Levine and Peterson

recite that Poe was not represented at an earlier point. Then, after

interruption, Levine lists two names of counsel. And to Stafford’s

question, appparently whether these counsel represent Poe, there

was no answer.

The reason for setting out this exchange, I must emphasize, is

not to assert that Goodwin does have a good-faith defense, for

that remains for determination at trial. My purpose rather is to

show that with some evident ambiguity about the representation

of Poe, Goodwin was required to use an element of judgment—

and thus diseretion—in answering the question the next day.

It is, of course, no rebuttal that defendant is alleged to have

given an incorrect answer in denying the presence of an informant.

As noted above, the very point of immunity doctrine is to protect

officials, and their exercise of discretion, against just such accusa-

tions of wrongful conduct which, absent immunity, might state a

good cause of action. Nor does the simplicity of Goodwin’s nega-

tive response to the inquiry (“No”) render his testimony minis-

terial. Any question seeming to call for a yes or no response may

always, in the judicial context, be answered in a qualified man-

ner. Goodwin’s decision as to precisely how the question should be

answered involved a significant exercise of judgement. Whether

the judgment thus displayed was good or poor is precisely the

issue that the immunity doctrine prevents us from reaching.

55a

whatever to the advocate’s role as conceived by

- the Supreme Court in Imbler.”

Indeed ?

This rather extraordinary characterization is not

supported by the “investigatory” cases cited by the

majority. This characterization, moreover, rests upon

a clear misreading of how the Imbler rule should be

applied and upon an overly narrow reading of its con-

ception of advocacy. These points will be developed in

order below. Finally, as I will explain in more detail

in Part I, C, infra, the attempted division of the pros-

ecutor’s function with the grand jury into “investiga-

tive” and “advocacy” roles is legally inaccurate and

practically unworkable.

1. The characterization of Goodwin’s action as “in-

vestigatory” is unprecedented and unjustified.“ As a

matter of case law, including all the cases cited by the

majority, courts have characterized as “investigatory”

those actions outside the courtroom setting where the

prosecutor is acting in a capacity akin to the police

officer in his efforts, for example, to obtain a ‘confes-

sion,” or to make arrests,” or to execute a search war-

rant.” Indeed, the Imbler Court cited to the cases of

policeman’s functions, all involving activities apart

from the courtroom, to show what it meant by ‘‘inves-

33 Maj. op. at 21 (emphasis added).

* My colleagues do admit the logical weakness of their posi-

tion by confessing, “To some extent, of course,.assignment of a

particular incident to one of several mutually exclusive abstract

categories is likely to involve an element of arbitrariness, es-

pecially where the incident in question was clearly ‘not en-

vistoned by those who originally devised Che classicatery eclieme.”

Maj.op.at2l.

*° Robichaud v. Ronan, 351 F. 2d 533 (9th Cir. 1965).

* Aptonv. Wilson, 506 F.2d 83 (D.C. Cir. 1974).

** Hampton v. City of Chicago, 484 F.. 2d 602 (7th Cir. 1973).

56a

tigative”’ activity by prosecutors.* The majority’s view

of this courtroom activity as ‘‘investigatory” under

Imbler is thus absolutely novel under the case law.

The majority’s characterization, moreover, is not

justified by the reasoning of the cases cited by Imbler.

In Hampton v. City of Chicago,” for example, Judge

(now Justice) Stevens recognized that since a police

officer is entitled to only qualified immunity for his

police actions, then a prosecutor performing the func-

tions of a police officer should also be accorded only

qualified immunity because “it seems neither appro-

priate nor justifiable that, for the same act, immunity

should protect the one and not the other.’’ This con-

cern for symmetry of treatment appears as a critical

policy for the majority as well: “Regardless of his

official status, a prosecutor functioning primarily as

an investigator should be accorded only the qualified

immunity typically conferred on other investigative

officers.”

In the instant case, however, a fair application of

symmetry calls for absolute immunity for the prosecu-

tor’s courtroom statement. Goodwin need not be given

qualified immunity because a policeman, if a witness

would only get qualified immunity; on the contrary,

in my view a policeman functioning as a witness in a

manner similar to Goodwin would be entitled to abso-

lute immunity. The majority has not cited—and can-

not cite—any case in which an official, as a witness,

has been denied absolute immunity from a civil dam-

age suit. See Part II, infra. Indeed, if the majority

- % See Imbler, supra at 430 n. 31, citing, among others,

Robichaud, supra and Hampton, supra. |

*° Hampton, supra at 608, quoting Robichaud, supra at 536-37.

«° Maj. op. at 20.

57a

were to.afford a policeman, qua witness, absolute im-

munity but deny it to this prosecutor, giving a similar

answer, then Goodwin would be denied absolute im-

munity solely because of his official status, surely an

impermissible result. If a policeman should have abso-

lute immunity here, functioning as a witness, so too

should Goodwin, functioning as an officer of the court.

Besides the concern for symmetry of treatment in

the performance of similar tasks, the other basic

rationale in the “investigatory”? cases is that the

prosecutor acting like a policeman outside the court

should be afforded only qualified immunity because

there is no other appropriate way for there to be

“judicial surveillance” of this type of executive action.

Apton v. Wilson.“ Put the other way, as Judge

Leventhal did in Apton, the prosecutor acting within

the confines of the court is entitled to absolute im-

munity as a “quasi-judicial officer” because “the cir-

cumstances typically provide alternative instruments

of the judicial branch to check misconduct—the dis-

cretion of the grand jury, the procedures of a trial,

and the potential sanction of discipline imposed by

the court itself.” “

Judged by the reasoning of Apton, it should seem

that. Goodwin is clearly entitled to absolute immunity,

as. his allegedly false statement was, made directly

under the control of the trial judge, a classic instance

of “judicial surveillance.’”’ The majority, however,

seeks to distinguish the reasoning of Apton because, it

says, the circumstances of this case did not in fact pro-

vide for careful scrutiny of Goodwin’s action. See maj.

op. at 27-28. To begin with, the language from Apton

+ Apton, supra at 94.

«2 Ibid.

58a

does not suggest in any way that absolute immunity

for a “quasi-judicial officer” should turn on a particu-

laristic inquiry into whether in fact there was a full

and fair “judicial surveillance.’’ “* Instead, it is the op-

portunity and potential for “judicial surveillance” that

justifies absolute immunity for prosecutorial activity

in a courtroom setting. That the majority is misread-

ing the nature of absolute “quasi-judicial” immunity

will become apparent from a close comparison of its

rationale with Imbler.

2. Two of the reasons that the majority gives for

why absolute immunity is not appropriate in this case

are based upon a clear misreading of Imbler. The

majority asserts, first of all, that there has yet been

no apparent official inquiry into this alleged mis-

behavior, and, secondly, that the alleged perjury here

was insulated from probing examination and jury ap-

praisal. As I will show, these are not material factors

under Imbler, even assuming their accuracy, as to

whether this prosecutor was acting as an “officer of

the court.”’

Consider first the issue of whether there has been

any professional or judicial inquiry into Goodwin’s

action. In striking the balance in favor of absolute im-

munity, the Imbler Court“ regarded as significant

factors “the amenability [of a prosecutor] to profes-

*s Apton mentioned that the circumstances of courtroom activ-

ity by a prosecutor “typically” provided, for example, “the poten-

tial sanction of discipline imposed by the court itself.” bid.

(emphasis added). The choice of the word—“potential”—sug-

gests that it is the opportunity for judicial sanction as an alterna-

tive deterrent to civil suits which is critical and not whether that

possibility and opportunity are, in fact, used.

“ Imbler, supra at 429.

59a

sional discipline by an association of his peers’ and

the possibility as well of “criminal punishment of a

prosecutor.’’ The existence of these checks, the Court

emphasized, thus “does not leave the public powerless

to deter misconduct or to punish that which occurs.” “

In this case the majority holds thu! -ause there has

been no professional or judicial imyui«y after all this

time, it is appropriate to allow an inquiry now in this

suit for damages. This outcome rests on a misunder-

standing by the majority about the nature of the

Supreme Court’s analysis in Imbler. The Court was

weighing the general policies behind absolute as op-

posed to qualified immunity in order to arrive at the

functional rule of absolute immunity for the prosecu-

tor in his role as advocate. By weighing in the balance

the amenability of a prosecutor to alternative sanc-

tions, the Court did not mean that the availability of

absolute immunity from civil damage suits in each

ease should turn on a particularistic determination

of whether the prosecutor’s act in question had other-

wise been the subject of a disciplinary inquiry. In-

deed, the Imbler Court did, in fact, grant absolute

immunity to the individual prosecutor, Mr. Richard

Pachtman, without anywhere indicating whether he

had been subject to disciplinary inquiry in the many

years between the trial in 1961 and the Court’s award

of absolute immunity in 1976. Similarly, it is immate-

rial whether Goodwin’s action has in fact been subject

to disciplinary review. Rather, what the Imbler Court

emphasized is that there had existed the possibility of

alternative checks, citing to the relevant sections of

the ABA Code of Professional Responsibility and the

California Penal Code. So too here, there is no ques-

* Tbid.

257-916—78-—6

60a

tion that there has existed the potential for profes-

sional, criminal or judicial inquiry into his action, thus

bringing him within the analysis of Imbler.“

As a matter of immunity doctrine, moreover, there

is real wisdom in not having the choice between im-

munities turn on a determination of whether this ac-

tion in particular was subject to disciplinary review.

A fair assessment of this factor may have to involve

further proceedings and findings, a possibility which

undereuts the purpose of absolute immunity, to pro-

vide protection at the outset from trial and liability.

In this case, for example, it is not altogether clear

that there was no apparent official inquiry into the

seeming misstatement, as the majority asserts.’ At

the criminal trial of appellees, the trial court held an

evidentiary hearing before admitting the informant,

Poe, as a witness. Based on evidence received at the

hearing, and over the objections of appellees that

their Fifth Amendment right to Due Process and

their Sixth Amendment right to counsel had been

violated, the trial court permitted Poe to testify. Was

the court’s ruling at all based upon its view that

Goodwin’s answer was not perjury or did not violate

‘6 See Disciplinary Rule 1-102 Misconduct :

“(A) A lawyer shall not:

* * * ” ' «

“(3) Engage in illegal conduct involving moral turpitude.

“(4) Engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.

“(5) Engage in conduct that is prejudicial to the administra-

tion of justice. nfs

“(6) Engage in any other conduct that adversely reflects on his

fitness to practice law.”

American Bar Association, Code of Professional Responsibility

3 (1959). Sy

** Maj. op. at 27.

61a

the Constitution? The record in the criminal case is

not before us and so the question must go unanswered.

Yet if the trial court did face there the issue of the

alleged perjury—which is very plausible since the ap-

— ay gt the defendants there—then the ma-

jority may be unfairly and inaccurately assuning that

there has been no official inquiry. For a more precise

assessment of its assumption, the majority would

have to have a remand on this issue, to allow for

further proceedings, all this taking place, I repeat,

even before the choice of immunities is made. And

yet, without a remand—on whether there had been an

official inquiry at the criminal trial into the alleged

perjury—the majority may be denying Goodwin ab-

solute immunity on the basis of an unfair and inac-

curate assumption, as well as one that is immaterial.

Furthermore, the majority overlooks the important

possibility that the lack of any official inquiry may

itself reflect some oversight by other parties. My

thought is that the Department of Justice and the

District Judge are well aware of the facts on the

merits of this case,“ and that in their opinion the

claim of plaintiff Briggs has no merit, hence no ac-

tion has been taken. It is worth noting also that since

** Without in any way diminishing my reliance on the doctrine

of absolute immunity, in fairness to defendant Goodwin (and as

Mr. Justice Holmes did in Aloua v. Johnson, 231 U.S. 106 (1913) ),

I might say that the record hints that defendant could have a de-

fense on the merits if he were put to trial. It is claimed that in the

Florida trial the defense lawyers’ proffer of whom they represented

at the time of the grand jury proceeding was far from clear, that

the FBI informant was not represented for an earlier motion, and

that the present defendant (then prosecutor) Goodwin’s brief,

unelaborated upon reply to the court’s question was justified. See

also nn. 16 and 32, supra. ="

On the merits of this we of course can express no opinion.

62a

the courtroom incident we have had two Presidents

and several Attorneys General of different political

persuasions. How does the majority take into account

the possible scrutiny by all these people, short of a

formal “official inquiry,” and their possible judgment

that action against Goodwin was not warranted? If

Goodwin is to be denied absolute immunity because

nobody has reviewed his alleged misbehavoir, then the

majority must not totally overlook, as it does, the

important possibility that the relevant parties have

- exercised some oversight and have decided against

further inquiry.

The short of it is that it is unwise to make absolute

immunity turn on whether there was in fact alterna-

tive review of the incident in question. Such an in-

quiry, as demonstrated by this case, may raise evi-

dentiary and other issues that must be resolved even

before the choice of immunities can be made. The

greater the number of issues that are injected into

this choice, beyond the necessary issues of scope of

duty and discretionary act, the more the protection

of absolute immunity—the dismissal of a suit at the

outset—is eroded. It was thus very appropriate for

the Imbler Court not to consider whether that prose-

cutor had been called to answer for his alleged court-

room misdeeds. We should, and must, follow their

example: it is immaterial whether there was ever an

“official inquiry” into Goodwin’s alleged perjury.

The other argument of the majority is that because

Goodwin’s statement was “insulat[ed]” from ap-

praisal by the jury and further inquiry by the ap-

pellees, it is inappropriate to accord absolute immu-

nity in this case.“ Once again, this outcome rests upon

* Op. at 28.

63a

a misreading of Imbler. As mentioned earlier,” Jus-

tice White in a separate opinion argued that there

should be only qualified immunity for the uncon-

stitutional withholding of information from the

court. When a prosecutor suppresses evidence, Jus-

tice White contended, it is, by definition, not subject

to the scrutiny of the judicial process; thus, there is

“no way to prevent or correct the constitutional vio-

lation.” Note the similarity to the majority’s view

that absolute immunity is inappropriate here. For

example, the majority points out that ‘“‘appellecs and

their counsel were required to accept appellant’s rep-

resentation on faith.”” which meant, in Justice

White’s terms, that there was ‘‘no way to prevent or

correct the constitutional violation.” “

The short answer to the majority’s view that Good-

win’s “‘insulat[ed]” answer loses absolute immunity

is that the Imbler Court expressly rejected Justice

White’s separate view that the total suppression of

evidence warranted only qualified immunity.“ Thus,

under Imbler it is immaterial to the choice of immu-

nities whether Goodwin’s allegedly false statement

during judicial proceedings was not adequately tested

by cross-examination or by jury appraisal.

Moreover, viewing this case in terms of the sup-

pression of evidence, the Imbler Court’s rejection of

Justice White’s separate approach may be said to set-

tle and control this case. One of the policies justifying

% See n. 10 supra.

* Imbler, supra at 441-45 (White, J., concurring in the

judgment).

52 Op. at 28.

58 Imbler, supra ai. 443 (White, J.).

* Imbler, supra at 431-32 n. 34 (Powell, J., opinion of the

court).

64a

absolute prosecutorial immunity is that otherwise “the

triers of fact in criminal cases often would be de-

nied relevant evidence.” By rejecting Justice

Wuite’s view that an unconstitutional withholding

should not warrant absolute immunity, the Imbler

Court was essentially saying that in all the deei-

sions about presenting evidence to the court the

prosecutor would have absolute immunity. This would

include decisions to present evidence of dubious re-

liability as well as decisions not to present particular

evidence at all. In these terms, what Goodwin al-

legedly did, in essence, was decide not to present the

court with the evidentiary fact that there w

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