Petition — Briggs v. Goodwin

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Office-Supreme Court, U.S.

FILED

$5008

Ocroser Term, 1983

JOHN BRIGGS, et al.,

Petitioners,

GUY GOODWIN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Morton Stavis

Counsel of Record

Rosert BorHmM

c/o Center for Constitutional

Rights

853 Broadway

New York, New York 10003

Puiu J. HirscHoKop

108 North Columbus Street

P.O. Box 1226

Alexandria, Virginia 22313

CaMERON CUNNINGHAM

2369 University Avenue

East Palo Alto, California 94303

Brapy CoLeEMAN

617 Banco Street

Austin, Texas 78703

Jack LEVINE

1425 Walnut Street

Philadelphia, Pennsylvania 19102

Attorneys for Petitioners

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners petition for a writ of

certiorari to review the judgment of the

Court of Appeals for the District of

Columbia Circuit in this case.

QUESTIONS PRESENTED

Whether this Court's decision in

Briscoe v. LaHue, 1 i » 209: 382

1108 (1983), holding that 42 U.S.C. §1983

does not authorize suit against a police

officer for false testimony in a criminal

trial, means that:

a) Where a government attorney has

placed an informer with grand jury wit-

nesses and their counsel, some of the

witnesses being targets, and where the

informer continues in association with

some of such witnesses, sometimes in

meetings with their attorneys, after they

have been indicted, and where the informer

aie

reports defense strategy to the government

and the government attorney takes no

effective action to stop the conduct of

the informer placed by him in the defense

camp, the government attorney somehow

acquires immunity from a claimed violation

of Sixth Amendment rights because at one

point he was called to the witness stand

and falsely advised the court that he had

not placed an informer in the defense

camp?

b) A government attorney, a defen-

dant in a Bivens suit based on a claim

that Sixth Amendment rights had been

violated by his having given false advice

to a court and a group of grand jury

targets that he had not placed informers

among them, may claim "witness immunity"

with respect to such advice?

LIST OF ALL PARTIES

Petitioners:

John Briggs

o2e

Scott Camil

Peter P. Mahoney

Stanley K. Michelson

Jonn Kniffin

William Patterson

Alton Foss

Donald Perdue

Robert Wayne Beverly

Jack Jennings

Bruce Hortcn

John Chambers

Respondent:

Guy Goodwin

TABLE OF CONTENTS

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Constitutional ProviSioOnsS...wcccccees

Statement Of the CaSO. cccdsescovser

Reasons for Granting the Writ.......

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TABLE OF AUTHORITIES

Cases:

Briggs v. Goodwin, 569 F.2d 10,

cert. den. 437 U.S. 904

CLP TUR bebe s.6 Saas ed ow dnd 0 éble eho dopeoeer

Briggs v. Goodwin, 712 F.2d 1444

sth tes, aes ke eeb ob ee es Wa eee 4

Briscoe v. LaHue, U.8. _,

103 S.Ct. 1108 (1983)..1,14 et passim

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

Ceres GON, Bae UsSs B49. cécccssice Be

Imbler v. Pachtman, 424 U.S. 409

[AVIRP ctor ove deocepeceebseeeeseouaneeen

In Re Murchison, 349 U.S. 133

CEPOU) ve vebbeee ee keeee ce eeeee ee ot.a.

Offutt v. United States, 348 U.S.

BA ALSO OD Cawescrertdesccesions eeus on 34

Pierson v. Ray, 386 U.S. 547

(1967) cocecvece Treen rcKe eer eae on ae

Regents of the Univ. of California.

v. Bakke, 438 U.S. 265 (1978)..... 34

Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980)..... 34

Weatherford v. Bursey, 429 U.S.

545 (1977) wcccccsccccees er ere ee a ee

Constitution and statutes

United States Constitution:

Sixth Amendment.....ccece 1,5 et passin

BE UataGes GLASO Uh) co wow ewes ene tes

Bas We ate Bae tees kc ec bheetewscbeeeess ee

OPINIONS BELOW

The opinion of the Court of Appeals

dated July 8, 1983, from which this

petition is filed, is reported at 712 F.2d

1444 (D.C. Cir. 1983) (see Appendix A,

infra, la et seg.). ‘The prior opinion of

the Court of Appeals dated January 11,

1983, is reported at 698 F.2d 486 (Appen-

dix B, infra, 14a et seg.). The opinion

and order of the district court dated

September 19, 1980 (Appendix C, infra,

36a) are not reported.

a ae

JURISDICTION

The judgment of the Court of Appeals

was rendered on July 8, 1983. The juris-

diction of this Court is invoked under 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United

States Constitution provides:

In all criminal prosecutions, the

accused shall ... have the assistance

of counsel for his defence.

STATEMENT OF THE CASE?

On July 7, 1972, a grand jury in

Tallahasee, Florida, subpoenaed petition-

ers to testify concerning their activities

in connection with the Vietnam Veterans

Against the War (VVAW). The subpoenas

were returnable three days later on July

luarge parts of this statement are

drawn verbatim from the opinion of the

Court of Appeals dated January 1l, 1983,

reported at 698 F.2d 486. Appendix B,

infra, 16a et seg.

10, 1972. <A group of lawyers hastily

assembled to represent the subpoenaed

witnesses. Because of the extreme time

pressure involved the lawyers counselled

many of the potential witnesses on a group

basis.

Unknown to either the petitioners or

their lawyers, one of those subpoenaed,

Emerson Poe, was a paid undercover FBI

informant. Defendant Goodwin had

subponaed Poe (and another informer,

Arthur Franz) to appear at the same time

as petitioners in order to keep secret

their status as informers. Despite this

status, Poe attended a group meeting of

the petitioners and their lawyers on July

8, 1972, in preparation for the grand

jury. He also signed a retainer form with

petitioners' attorneys, though the scope

of that retainer is an issue between the

parties. Throughout the grand jury

proceedings, Poe consulted with

petitioners' lawyers and was present in

the cramped hallway where the petitioners

consulted with their lawyers.

Recurring rumors of police and FBI

infiltration of VVAW prompted concern

among the petitioners that informants

might be in their midst. Group counsel

filed a motion with the district court to

discover whether any of the witnesses

represented by them were government

informants. To clarify that motion, the

district court requested that counsel list

the witnesses in question and their

respective attorneys. On July 12, that

list was presented orally on the record

before the court. Emerson Poe was among

the names listed. During discussion of

the motion the next day, the court peremp-

torily directed Goodwin to take the stand

and be sworn. He was asked one question:

THE COURT: Mr. Goodwin, are any of

these witnesses represented by counsel

agents or informants of the United

States of America?

THE WITNESS [GUY GOODWIN]: No, Your

Honor.

What followed the above colloquy is

essential to the issue now before this

Court. After the single question was

asked by the court and answered by

Goodwin, counsel for the subpoenaed

witness asked permission to cross-examine

Goodwin. The court summarily refused this

request. What is more, Goodwin specif-

ically stated that, although he would

answer questions posed by the court, he

did "not wish to be subjected to cross-

examination."

Goodwin knew, at the time that he

answered the judge's question, that Poe

was an FBI informant. He also had the

opportunity to see Poe among some of the

petitioners and their attorneys as they

waited in the hall outside of the grand

jury room. On the other hand, Goodwin

=-§-

claims to have issued instructions that

Pre was not to become involved with the

petitioners' defense efforts or their

attorneys.

Later that day, the grand jury

indicted six of the petitioners on federal

criminal charges relating to an alleged

conspiracy to cross state lines to insti-

gate a riot. Two other petitioners were

subsequently indicted on the same charges.

The grand jury granted the remaining four

petitioners immunity; when they refused to

testify, they were convicted of contempt.

Shortly after the grand jury proceed-

ing, Poe, at the behest of the FBI,

retained a local lawyer to inform peti-

tioners' attorneys that he would be

representing Poe in any further proceed-

ings. The petitioners continued to take

Poe into their confidence and discuss

aspects of the upcoming trial with him.

Poe attended a number of meetings among

-9-

petitioners at which they discussed

defense matters. Petitioners' attorneys

were sometimes present. On at least one

occasion, petitioners questioned Poe's

presence at these meetings because he was

not an actual defendant.

Poe reported to the FBI regarding his

attendance at meetings, his other involve-

ment with the petitioners, and the infor-

mation he acquired. The FBI routinely

passed such information on to the Justice

Department. Among the information that

Poe provided the FEI was information

concerning the severe financial impact of

a pending motion on the defense team; the

intention of one of the petitioners to

visit a potential witness for the govern-

ment; friction among members of the

defense team; and a jury-selection

survey being conducted by the defense.

Poe agreed to help petitioners collect

-10-

information for the survey, but he failed

to do so or reported false information.

When he returned to Washington,

Goodwin was informed of Poe's involvement

with petitioners' counsel during the grand

jury, as well as his continued involvement

with petitioners as they prepared their

defense to the grand jury's indictment,

but he took no action effectively to

terminate Poe's contact with petitioners

or their defense committee. Goodwin's

inaction continued for a full year after

his denial to the court, as Poe continued

passing information to the government.

Not until August 17, 1973, pursuant

to the Jencks Act, did petitioners obtain

written materials revealing Poe's

informant status. At a pretrial hearing

in their criminal prosecution, the indict-

ed petitioners succeeded in suppressing

certain evidence discovered by Poe and

shite

turned over to the FBI. The court held

that the means used to gather the evidence

violated the Sixth Amendment.

At trial, the jury acquitted peti-

tioners of all charges.

Petitioners brought this action

alleging that Goodwin violated their Sixth

Amendment rights both Girectly through his

misleading statement on witness informants

and indirectly through his failure to

remedy the situation when it became

apparent that Poe was gathering confiden-

tial defense information and reporting it

to the FBI. Goodwin moved for dismissal

of the complaint, arguing that as a public

prosecutor he was entitled to absolute

immunity from private damage suits for

actions taken in his official capacity.

He also claimed that his statement was

mace while he was a "witness" in court,

and that he should be entitled to absolute

=i 26

“— ——

witness immunity. Both the district court

and a panel of the Court of Appeals for

the District of Columbia Circuit denied a

motion to dismiss on either of these

immunity grounds. Briggs v. Goodwin, 569

F.2d 10, cert. den. 437 U.S. 904 (1978).

Instead, the Court of Appeals determined

that Goodwin was only entitled to a

qualified immunity; he would be protected

from private suit only if his actions were

taken in good faith.

On remand, after much discovery,

Goodwin moved for summary judgment. The

Gistrict court rejected a renewed claim of

absolute immunity, but granted summary

judgment on a finding that Goodwin had

established his good faith because he "in

fact believed in the veracity of his

2the issue of witness immunity was

expressly presented to this Court in the

petition for writ of certiorari.

=] 3e

statement" concerning informants repre-

sented by common counsel. Petitioners

contended that material issues of fact

remained in dispute.

The Court of Appeals decision, dated

January 11, 1983 (amended January 17,

1983, infra, 14a), reversed the decision

of the district court granting summary

judgment, holding that there were in fact

material issues of fact.

In due course, Goodwin filed a

petition for rehearing calling to the

attention of the Court of Appeals the

decision of this Court in Briscoe v. LaHue

decided on March 7, 1983.

On July 8, 1983, the Court of Ap-

peals, responding to the petition for

rehearing, vacated its prior Opinion and

affirmed the judgment of the district

court granting summary judgment for

Goodwin (infra, la).

@1é-

In so ruling, the Court of Appeals

‘held that this Court's ruling in Briscoe

with respect to witness immunity should be

applied to the facts and circumstances of

this case. It should be observed that in

an earlier opinion on an interlocutory

appeal, Briggs v. Goodwin, 569 F.2d 10

(D.C.Cir. 1977), cert. den., 437 U.S. 904

(1978), the Court's opinion, per McGowan,

J., had considered the claims of both

prosecutorial and witness immunity and had

rejected both. The former was denied on

the grounds that within the principles of

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

Goodwin was functi.iing in an investiga-

tive rather than a prosecutive role. With

respect to the claim of witness immunity,

the Court concluded that witness immunity

doctrine did not encompass the circum-

stances of this case. The Court explained

its opinion on this score as follows:

-15-

(W]e doubt that respondent 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 undercover agents,

That claim raised a question going to

the very integrity of the manner in

which the grand jury Proceeding 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

witness immunity worthy of the name.

The difference between the falsity of

such a nontestimonial representation, on

the one hand, and the technical conse-

quence of perjury attached to a state-

ment under oath, on the Other, is not at

the heart of the immunity issue in this

appeal. The question is whether appel-

lant is wholly immune from a Civil suit

based upon his utterance of an allegedly

false statement in the context of

countering a challenge to the manner in

which he was conducting a grand jury

inquiry.

The statement assailed here was prompted

by, and directly incidental to,

-16-

appellant's status as a prosecutor

managing and administering an investi-

gation. Appellant's unqualified nega-

tive response to the district judge's

plain and abrupt question was essential

to the forwarc progress of the grand

jury investigation, for which appellant

as a federal prosecutor had been charged

by his superiors with the responsibil-

ity. 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.

**** Tt is obvious from the transcript

that the court did not consider appel-

lant 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 appellant--a prosecutor

functioning in an investigative context-

--should be accorded complete invul-

nerability to suit for the consequences

of an act performed in that capacity.

The Court of Appeals additionally

expressed doubt whether witness immunity

principles were in any event applicable to

Bivens-type actions alleging claims of

constitutional violation.

@17@=

In its opinion on rehearing, the

Court of Appeals, per Bazelon, J., ack-

nowledged that its earlier opinion had

found witness immunity to be inapplicable

to the facts in this case, even if witness

immunity were generally applicable to

constitutional torts. Judge Bazelon's

Opinion simply rejected the view of this

case reflected in Judge McGowan's earlier

opinion While basing his opinion on

Briscoe, Judge Bazelon rejected the

earlier opinion even to the extent that

Judge McGowan had assumed the possibility

of immunity of the type held in Briscoe.

REASONS FOR GRANTING THE WRIT

A divided court held in Briscoe that

principles of witness immunity barred a

Suit for damages under 42 U.S.C. §1983

against a police officer testif ing in a

Criminal case. The decision of the Court

of Appeals in this case represents a vast

extension of that ruling probably not

=i @=

intended by this Court and threatens very

seriously constitutional rights which the

Court has sought to protect.

I. Briscoe held that a police

officer who lied at a criminal trial has

witness immunity as against a damage suit

against him under 42 U.S.C. §1983. The

policeman's false testimony was the only

act claimed to have violated the plain-

tiff's constitutional rights.

This is a wholly different case. As

pointed out in the main brief in the Court

of Appeals, the gravamen of the complaint

was that defendant Goodwin violated

petitioners’ rights guaranteed by the

Sixth Amendment, not merely by his sworn

statement in court but by his acts and

omissions both before and after that

statement was made,

As petitioners chronicled in their

brief in the Court of Appeals, Goodwin

expressly decided to require Poe and

-19=

another informer to appear at the grand

jury at the same time as petitioners, to

insure that they would not Suspect the

informer status of the two men. Goodwin

did this well Knowing the crowded condi-

tion of the courthouse, which would make

it virtually impossible to have attor-

ney-client discussions without being

Overheard by the informer-witnesses,

After Goodwin's statement to the

court--in fact, after the grand jury had

issued its first indictment?--ana everyone

had returned home, Goodwin received

additional information concerning Poe's

involvement with petitioners’ attorneys

during the grand jury. He nonetheless did

not direct Poe to remove himself from the

defense camp.

“4 Superceding indictment was issued

on October 18, 1972,

-20-

Again, as argued in the brief before

the Court of Appeals and reflected in that

court's statement of the facts, during the

year that followed, Poe continued his

relations with petitioners and their

defense committee as they prepared for

trial, attending meetings where attorneys

were sometimes present. He continually

passed information to the FBI concerning

defense strategy and problems, including

but not limited to defense plans for the

first arraignment, the nature of defense

committee fund-raising, plans of defen-

dants to meet with their lawyers, and

plans with respect to a jury selection

survey. Poe even obtained information

from defense committee members that formed

the basis for a search warrant for evi-

dence which was used in the Gainesville

Eight trial and was instrumental in the

superceding indictment of two of the

petitioners.

-21-

Of course, information given by Poe

to the FBI was then passed on to the

Justice Department attorneys.“ Goodwin

took no action to terminate these Sixth

Amendment violations.

In this posture, Goodwin's testimony

frosted the cake of: Sixth Amendment

violations but was not the sine qua non

thereof. Had he not testified at all,

there would still have been Sixth Amend-

ment violations.

The most that could possibly be

argued is that Briscoe means that, at the

trial for violation of petitioners’

constitutional rights, evidence of Good-

win's false testimony might not be admis-

sible. But that is a far cry from arguing

that the entire case is to be dismissed

4piainly, this distinguishes this

case from Weatherford v. Bursey, 429 U.S.

545 (1977).

-22-

because Goodwin gave some false testimony

where there is ample evidence of Sixth

Amendment violations not dependent upon

such testimony.

In the paragraphs below we point out

other reasons which render Briscoe wholly

inapplicable to this case, so that even

the limited impact of exclusion of parti-

cular evidence would be inappropriate.

2. Briscoe applied principles of

witness immunity to a witness in the

Ordinary and familiar role. There were

important historical antecedents in the

law of defamation upon which this Court

drew. by

Goodwin, as the Court of Appeals

recognized as early as 1977, was no

Ordinary witness. He was a prosecutor

performing an investigatory role. He was

in absolutely no different position from

any lawyer standing before a lectern and

making a representation.

=23-

The differences between Goodwin and

the police officer in Briscoe strongly

indicate that the historical and policy

considerations mentioned by this Court in

Briscoe do not apply to this case.

According to this Court in Briscoe,

without immunity,

{a] witness's apprehension of subsequent

damages liability might induce the two

forms of self-censorship. First,

witnesses might be reluctant to come

forward to testify. And once a witness

is on the stand, his testimony might be

distorted by the fear of subsequent

liability. 103 S.ct. at 1114.

Therefore, the Court concluded:

The truth-finding process is better

served if the witness's testimony is

submitted to "the crucible of the

judicial process so that the fact

finder may consider it, after

cross-examination, together with the

other evidence in the case to determine

where the truth lies." Id. at 1115.

Upon examining the reasons which

underly traditional witness immunity and

this Court's conclusion concerning the

judicial process, it is clear that Goodwin

was so far from being a witness in the

-24-

sense considered in Briscoe that the

decision in that case does not apply to

the facts of this case.

The "testimony" in question herein

occurred as a result of a motion filed by

counsel for subpoenaed witnesses during

the Tallahassee grand jury in which

counsél asked whether any of their clients

were agents or informants. It was the

court's denial of cross-examination and

Goodwin's indication that he wished not to

be cross-examined which take this com-

pletely out of the facts and reasoning of

the Briscoe case.

Because the Tallahassee court refused

to permit counsel to cross-examine

Goodwin, it removed him from the "crucible

of the judicial process" which this Court

indicated would protect criminal defen-

dants and maintain the integrity of court

proceedings, and which is at the heart of

Briscoe.

=25<

We observe that, despite an apparent

effort by the Court of Appeals in its

Opinion on rehearing to analyze the

appropriateness of applying Briscoe to

Goodwin, it makes no mention whatever of

this decisive difference between the two

cases.

Yet this difference distinguishes the

two cases completely. In the one case the

judicial process is vindicated by the use

of cross-examination, and this Court has

held that that process should be protected

by immunity. In the other, the judicial

process has been frustrated by the denial

of the "crucible" of cross-examination and

hardly merits immunity.

In his opinion, Judge Bazelon says:

"Briscoe emphasized the concern that the

absence of immunity would interfere with

the ability of ‘judicial proceedings' to

determine where the truth lies." (Slip

Op. at 9, infra, 9a.) But obviously that

=~26-

proposition holds water only to the extent

that the proceedings included the accepted

method of determining “where the truth

lies," i.e., cross-examination.

3. Briscoe involved a police officer

testifying as a witness in a criminal

trial and setting forth facts in the

Matter sub judice. Goodwin was an officer

of the court, advising it and his adver-

saries of the workings of the grand jury

proceedings then underway.

There is an enormous difference

between the two circumstances, a differ-

ence which should be determinative of the

outcome. When a policeman testifies as to

the facts of a case, he has a legitimate

claim that his status should be no differ-

ent from that of any witness who histori-

cally has had the benefit of a privilege.

But lawyers addressing a court do not

have a privilege to lie and be protected

from the consequences ot so doing if their

= 27 =

lie was relied upon by an adversary and

caused damage.

We suppose it would be conceded that

if Goodwin, performing non-prosecutorial

investigative activities, stood before the

bench and, in response to the court's

inguiry, made a false statement to the

court that he made from the witness stand,

he could not claim immunity if his state-

ment effected a denial of constitutional

rights. How is it possible, then, that by

the mere fact that the judge asked him to

move to the witness chair and take an

oath, but did not permit him to be cross-

examined, by some unexplained alchemy

Goodwin acquired an immunity that he did

not have when he stood before the bench?

Of course, the argument may be made

that Goodwin is entitled to prosecutorial

immunity. But that is a wholly different

issue from that decided by the Court of

Appeals on this occasion. The question of

-28-

prosecutorial immunity is not before the

Court at this time. It was decided in

1978, Briggs v. Goodwin, 569 F.2d 10, and

this Court did not accept a petition for a

writ of certiorari. 437 U.S. 900.

We start, therefore, with the fact

that Goodwin was not entitled to prose-

cutorial immunity but was to be treated

like any lawyer. Can one seriously

believe that a lawyer making a false

statement to the court, to the damage of

his adversary, will acquire absolute

witness immunity if for some reason the

court moves him from the lectern to the

witness stand and puts him under oath?

4. In granting police witnesses

absolute immunity consistent with Pierson

v. Ray, 386 U.S. 547 (1967), and Imbler,

this Court in Briscoe expressed the

concern that, were such immunity denied,

large numbers of lawsuits against police

officers might result:

-29-

Section 1983 lawsuits against police

officer witnesses, like lawsuits

against prosecutors, "could be

expected with some frecuency." Ci.

Imbler v. Pachtman, Supra, at 425,

Police cfticers testify in scores of

cases every year, and defendants

often will transform resentment at

being convicted into allegations of

perjury by the state's official

witnesses,

203 &.Ct. at 1120.

There is obviously no dancer that

prosecuting attorneys will be directed by

courts to make statements to the court

under oath in "scores of cases" each year.

Nor is it likely that the rare prosecutor

who is required by a court to give a sworn

statement in the course of his performance

of a non-prosecutive function, will be

shielded from cross-examination and

removed from the "crucible of the judicial

process," as Goodwin was. Should that

rare event occur and the prosecutor make a

false statement to the court under Oath,

the person whose constitutional rights

have been violated by his false statement

-30-

must not also be deprived of his or her

only remaining protection--a civil rights

damage action. For in truth, no other

safeguard exists for that person.

The Court in Imbler expressed concern

lest prosecutors be exposed to defending

themseives as to the outcome of every

case, just as police witnesses might be

exposed at the end of every case where

they testify. But in Imbler the Court did

not immunize prosecutors when they perform

non-prosecutorial functions, and in

Briscoe the Court did not immunize police

officers who deny constitutional rights in

ways other than by testifying. Thus, the

Court is not generally immunizing all law

enforcement officials; it affords immunity

only to the extent that the law enforce-

ment official is part of the routine of

the overwhelming number of prosecutions,

i.e., the act of prosecution by a prose-

cutor or the police giving testimony.

-3l-

Nothing in Imbler or Briscoe extends

immunity to acts constituting a denial of

constitutional rights by other conduct of

either police officers or prosecuting

attorneys.

5. This Court in Briscoe was very

sensitive to the fact that its ruling

barred a "possible path to recovery for

the defendants." The Court, however,

relying on the oft-quoted statement by

Judge Learned Hand in Gregoire v. Biddle,

177 F.2d 579, cert. den. 339 U.S. 949, to

the effect that "In this instance it has

been thought in the end better to leave

unredressed the wrongs done by dishonest

officers than to subject those who try to

do their duty to the constant dread of

retaliation," sustained immunity.

The question, then, is whether this

case is one which merits that treatment.

The opinion of the Court of Appeals makes

clear that it did not think this was such

@32@

a case. In footnote 36 (infra, lla), the

court says:

While upholding appellee's absolute

immunity claim, we note our deep

concern. The allegations in this case

painfully illustrate the significant

costs of this, holding--not only to the

appellant, but to the integrity of our

Criminal justice system as well. As

the state's lawyer and an officer of

the court, a prosecutor has a special

obligation to discharge his duties

lawfully and fairly. In this case,

appellant claims that a prosecutor

perjured himself from the witness stand

during a criminal investigation. Our

response to appellant's claim is that a

Civil damages action, whatever its

merits, may not be pursued against the

prosecutor. Instead, appellant must

rely on the possibility of a

prosecution of the prosecutor by his

fellow prosecutors. We find it

troubling that our system of justice,

which rests so fundamentally on the

consent of the governed, offers such

inadequate remedies for official

violations of individuals' constitu-

tional rights.

In this footnote, the Court of

Appeals was expressing a concern often

articulated in the opinions of this Court:

that for the judicial system "to perform

its high function in the best way, justice

must satisfy the appearance of justice."

In Re Murchinson, 349 U.S. isay- 36

(1955); Offutt v. United States, 348 U.S.

ll, 14 (1955); Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 571-72 (1980);

Regents of the Univ. of California v.

Bakke, 438 U.S. 265, 319 n. 53 (1978).

In spite of its reservations, how-

ever, the Court of Appeals felt compelled

by Briscoe to uphold the claim of immuni-

ty. It is respectfully submitted that the

Court of Appeals failed to give effect to

the significant differences between the

instant case and Eriscoe, and in so Going

extended the immunity there provided far

beyond what this Court intended.

CONCLUSION

Briscoe should not be read as a

general license to extend immunity when-

ever the denial of constitutional rights

has a testimonial dimension. If it is so

read--as the Court of Appeals did in this

case--a gratuitous and unnecessary denial

of constitutional rights will have been

fashioned. This Court did not intend that

result.

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

MORTON STAVIS

ROBERT BOEHM

c/o Center for Consti-

tutional Rights

853 Broadway

New York, N.Y. 10003

PHILIP J. HIRSCHKOP

108 North Columbus St.

P.O. Box 1226

Alexandria, Va. 22313

CAMERON CUNNINGHAM

2369 University Ave.

East Palo Alto, Ca. 94303

BRADY COLEMAN

617 Blanco St.

Austin, Texas 78703

JACK LEVINE

1425 Walnut St.

Philadelphia, Pa. 19102

Attorneys for Petitioners

Dated: October 6, 1983.

=~ 35<

APPENDIX A

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-2269

JOHN BRIGGS, ET AL., APPELLANTS

Guy GOODWIN, ET AL.

On Petition for Rehearing

Filed: July 8, 1983

Robert Boehm, Morton Stavis, Cameron Cunningham,

Brady Coleman, Jack Levine, and Philip J. Hirschkop were

on the Supplemental Memorandum for appellants.

Robert F. Muse and Jacob A. Stein were on the Pe-

tition for Rehearing and Supplemental Memorandum for

appellees.

Before: GINSBURG, Circuit Judge, and BAZELON and

MACKINNON, Senior Circuit Judges.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

-la-

Opinion for the Court filed by Senior Circuit Judge

BAZELON.

Opinion concurring in the judgment filed by Senior

Circuit Judge MACKINNON.

BAZELON, Senior Circuit Judge: The allegations in this

case raise troubling issues of law: Appellant Briggs al-

leges that appellee Goodwin, a United States Attorney,

knowingly gave false sworn testimony before a district

court, which resulted in a violation of appellant’s con-

stitutional rights. Appellee asserts entitlement to absolute

immunity from civil liability arising from his testimony.

This court rejected that claim. Thereafter the Supreme

Court decided Briscoe v, LaHue* and we granted rehear-

ing to reconsider the issue in light of that decision. Upon

such reconsideration, we are cumpelled to the conclusion

that Briscoe entitles appellee to absolute immunity as

a witness.

The factual background and procedural history in

this case have been fully detailed in our earlier opinions,

Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983)

(“Briggs II”); Briggs v. Goodwin, 569 F.2d 10 (D.C.

Cir. 1977), cert. denied, 487 .S. 904 (1978) (“Briggs

I’) ; only a brief review is required here.

The case arises out of a grand jury proceeding in

which several grand jury witnesses, including appellant

Briggs, were represented by the same counsel.? In re-

sponse to rumors that some of the grand jury witnesses

were government informants, the witnesses filed a mo-

tion in district court to compel the government to dis-

close whether any government informants were among

the witnesses represented by group counsel. At the hear-

*51 U.S.L.W. 4247 (U.S. March 8, 1983).

? For a more detailed account, see Briggs I, 569 F.2d 10,

13-14 (D.C, Cir. 1977).

-2a-

ing on the motion, appellee Goodwin, who was the prose-

cutor in charge of the grand jury investigation, took the

stand and was asked under oath whether any of the

witnesses represented by group counsel were government

informants. Goodwin answered, “No.” Appellant Briggs

alleges that Goodwin’s response was false, that Goodwin

knew it to be false, and that the allegedly false state-

ment caused Briggs to share defense strategy with an

informant, who passed it back into the hands of the

government.

Briggs sued Goodwin, inter alia, for damages arising

out of violation of Briggs’s sixth amendment rights. Good-

win asserted absolute immunity on two grounds: 1) as

a prosecutor, and 2) as a witness. The district court

refused to dismiss the case on either ground, but agreed

to certify the question of prosecutorial immunity for in-

terlocutory appeal.

In a 2-1 decision, this court rejected Goodwin’s pros-

ecutorial immunity claim. Briggs I, 569 F.2d 10 (D.C.

Cir. 1977), cert. denied, 487 U.S. 904 (1978). Applying

the “functional” test outlined in Imbler v. Pachtman,*

the court found that at the time of the statement Good-

win was operating in his investigatory role In ‘hat

capacity, he was not entitled to the absolute immunity

conferred on prosecutors acting as advocates, but only to

the qualified immunity provided for police and other

government officials acting as investigators."

*424 U.S. 409 (1976).

* Briggs [, 569 F.2d at 16-25.

5 See Gray v. Bell, No. 82-1838, slip op. (D.C. Cir. June 21,

1983). Gray reiterated the distinction between the advocatory

and investigatory roles of the prosecutor. It found that the

prosecutor in that case, in preparing for and presenting evi-

dence to the grand jury, was functioning in his advocatory

role and was therefore entitled to absolute immunity. Our

action in this case, upholding absolute immunity for the

-3a-

For a variety of reasons,’ Briggs I also reached the

question of witness immunity, despite the district court’s

refusal] to certify the issue for interlocutory appeal’ and

the failure of the parties to brief it.* On this issue, the

Briggs I panel held that Goodwin’s statement was not the

testimonial act of a witness in the traditional sense, and

that the protection of absolute witness immunity should

not apply.’ The majority went on at some length to ex-

plain that even if Goodwin had been a witness, common

law witness immunity might not protect government offi-

cials whose perjured testimony infringed constitutional

rights.” The case was remanded for the district court

to determine Uoodwin’s entitlement to a qualified im-

munity based upon good faith.

On remand, the district court granted summary judg-

ment for Goodwin.'' In the instant appeal, we reversed

on the ground that factual issues remain in dispute.

Briggs II, 698 F.2d 486 (D.C. Cir. 1983). Thereafter,

the Supreme Court decided Briscoe: we thereupon or-

dered supplemental briefing and granted rehearing to

reconsider the issue of witness immunity.

prosecutor’s conduct as a witness, does not affect the standards

set out in Gray.

* Two members of the Briggs I panel (Judges Robinson and

Wilkey) concluded that the witness immunity issue was prop-

erly before them under the “collateral order’ exception to

the final judgment rule of 28 U.S.C. § 1291 (1976). 569 F.2d

at 5&8. The third member of the panel, Judge McGowan, dis-

sented on this point. 7d, at 26 n.14.

* See 569 F.2d at 15, 58. —

8 Jd. at 26.

* 7d. at 26-27.

" Briggs v. Goodwin, No. 71-803. slip op. at 4 (D.D.C.

Sept. 19, 1980).

-4a-

Briscoe v. LaHue. _—

Briscoe involved a civil suit for damages under 42

U.S.C. § 1983 against a police officer who allegedly gave

perjured testimony that led to the plaintiff’s criminal

conviction. Al] parties to the suit agreed that the com-

mon law affords lay witnesses absolute immunity from

civil suits based on their testimony.’? The case pre

sented the issue of whether the same immunity applies

to police and other government witnesses testifying in

their official capacity." .

Absolute witness immunity is traditionally justified as

a response to two concerns: 1) intimidation, and 2) self-

censorship. Without the protection of immunity, wit-

nesses with important information may be dissuaded

from coming forward to testify because of the potential

for civil liability arising out of their participation in a

judicial proceeding.“* Even after taking the stand, wit-

nesses may be inhibited by the risk of liability from

speaking freely for fear of making honest errors that

might subject them to suit.’ Absolute im uunity has

#2251 U.S.L.W. at 4249.

3 Because Briscoe was a suit brought under 42 U.S.C.

§ 1983, much of the Supreme Court’s opinion and of Justice

Marshall’s dissent concerns whether section 1983 created an

exception to the general witness immunity provided by com-

mon law. Id. at 4248-51; id. at 4252-57 (Marshall. J.. dis-

senting). That analysis is not directly applicable here, as

this case involves a suit brought directly under the Consti-

tution as recognized in Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 888 (1970).

The Court did, however, separatety consider and reject peti-

tioner’s argument that an exception to the general rule of

witness immunity be carved out in cases of alleged perjury

by police officer witnesses. 51 U.S.L.W. at 4251-52. That

portion of the opinion is applicable in this case.

4 Briscoe, 51 U.S.L.W. at 4249.

3 Id.; see Veeder, Absolute Immunity in Defamation: Ju-

dicial Proceedings, 9 COLUM. L. REV. 463, 470 (1909).

-5a-

therefore been justified in order that “those involved in

judicial proceedings be ‘given every encouragement to

make a full disclosure of al] pertinent information within

their knowledge.’ ”’ **

The plaintiffs in Briscoe, and the dissenting opinions,"’

offered several reasons why these concerns apply with

less force to government witnesses such as police officers

than to lay witnesses. First, police officers have a profes-

sional interest in obtaining prosecutions that is likely to

counterbalance their hesitation to testify. Second, the

financial burden of defending a civil suit is less of a

concern for police officers, whose defense in suits alleg-

ing constitutional violations in the performance of their

jobs is ordinarily undertaken by the government. In

such suits generally, police officers are entitled to quali-

fied, not absolute, immunity. Third, “perjured testimony

by police officers is likely to be more damaging to con-

stitutional rights than such testimony by ordinary citi-

zens, because the policeman in uniform carries special

credibility in the eyes of the jurors.” ** For this reason,

cross-examination may be less effective in discrediting the

perjured testimony of police officers than that of lay wit-

nesses, Finally, the need for close cooperation between

prosecutors and police officers reduces the likelihood of

prosecutions for perjury, thereby undermining the sanc-

tion on which the law relies to compel immunized wit-

nesses to speak the truth.*

*Imbler v. Pachtman, 424 U.S. 409, 439 (quoting 1 F.

HARPER & F. JAMES, THE LAW OF TorTs, § 5.22 at 424

(1956) ).

751 U.S.L.W. at 4252, 4257 (Marshall, J., dissenting) ; id.

at 4252 (Brennan, J., dissenting); id. at 4258 (Blackmun, J.,

dissenting).

18 Briscoe, 51 U.S.L.W. at 4257 (opinion of the Court).

19 See Newman, Suing the Law Breakers, 87 YALE L. J. 447,

449-50 (1978).

-6§a-

Briscoe explicitly considered these concerns and found

that they did not justify excluding official witnesses from

the protection of absolute witness immunity.” The Court

said that the police officer functions like “any other wit-

ness.’’** Moreover, the Court added, without absolute

immunity, the potential for litigation against official

witnesses “might undermine not only their contribution

to the judicial process but also the effective performance

of their other public duties.” ** Thus, the Court held that

the public interest in “protecting the judicial process,” **

which had justified affording judges, prosecutors and lay

Witnesses the protection of absolute immunity, also justi-

fied granting that protection to police officers when they

take the witness stand.

In Briggs I, this court denied Goodwin witness im-

munity because his testimonial act differed from that of

a witness in the usual sense. The court found that Good-

win’s brief statement on the stand “was prompted by,

and directly incidental to” his involvement in managing

and administering an investigaton.** “To the extent that

[Goodwin’s] one word answer is viewed as a testimonial

act, it was one occasioned by, and critical to, appellant’s

discharge of that responsibility.” **

We find it difficult to distinguish Goodwin's testimonial

act from those of police officers in situations falling

within the rationale of Briscoe. Testimony by a police

* 51 U.S.L.W. at 4251.

2 Id.

8 id.

*8 Td. at 4249 (quoting Imbler V. Pachtman. 424 U.S. 409,

439 (1976) (White, J.. concurring in the judgment) ).

24569 F.2d at 26.

% Id. at 27.

-Ja-

officer will very often involve challenges to his conduct

while performing investigatory tasks. A police officer

who has been integrally involved in an investigation that

culminates in a criminal prosecution has a clear interest

in the outcome of the trial. In such a situation, the police

officer has professional and personal interests in his testi-

mony that are closely analogous to Goodwin's interest in

the testimony out of which this suit arises. Briggs I ex-

plicitly found Goodwin to be operating not as a prosecu-

tor but as an investigator.** We decided that in that

role his immunity should resemble that of a police officer

involved in an investigation. Briscoe informs us that that

immunity is absolute for statements made on a witness

stand. Briscoe therefore compels the conclusion that when

Goodwin made his sworn statement from the witness

stand,*” he enjoyed absolute immunity.

267d. at 16-25 (“‘[WJe rely on a series of federal decisions

distinguishing between a prosecutor’s role as advocate, on

the one hand, and his function as an administrative or investi-

gative officer, on the other.” Jd. at 16.).

27 In Briggs I, the court did not consider of great significance

the fact that Goodwin made his statement under oath from

the witness stand:

Had [Goodwin] volunteered to represent as an officer of

the court that no informers were involved, and had the

parties beeen content with that, there would be no issue

as to witness immunity worthy of the name. The dif-

ference between the falsity of such a nontestimonial

representation, on the one hand, and the technical con-

sequence of perjury attached to a statement under oath,

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

this appeal.

569 F.2d at 26. Fuller briefing on this issue indicates that

the fact of Goodwin’s oath was indeed significant to the credi-

bility given his statement by those who relied on it. The full

transcript makes clear that Goodwin offered to make an un-

sworn representation in response to the court’s inquiry, but

witnesses’ counsel insisted that such a representation was “‘not

competent proof in any court of law and that under these

circumstances Mr. Goodwin ought to submit an affidavit under

-8a-

The fact that Briscoe involved statements at a trial

whereas this case involves statements at a hearing on a

motion during the grand jury phase of an investigation

is not a distinction that allows a different result. Briscoe

emphasized the concern that the absence of immunity

would interfere with the ability of “judicial proceed-

ings” ** “to determine where the truth lies.” ** That

concern applies not only to trials, but to any judicial

proceeding where the testimony of witnesses might be

affected by the lack of immunity.” Thus, the rationale

of Briscoe applies with equal force whenever a witness

testifies in a judicial proceeding the function of which

is to ascertain factual information.

In addition to causing reconsideration of Goodwin’s

Witness status, Briscoe rejected the reasons offered in

Briggs I for why absolute witness immunity might not

apply to government officers in suits alleging constitu-

oath ....” (July 13, Tr. pp. 64-65, Joint Appendix (J.A.)

629-30). It was in response to this objection that the court

ordered Goodwin to take the stand, be sworn and testify.

Moreover, testimony at appellant’s criminal trial, and deposi-

tions and interrogatories suggest the importance of the fact

that Goodwin’s statement was under oath. See, e.g., Answer

of Jack Jennings to Goodwin’s Interrogatory No. 11, J.A. 530;

Answer of Scott Camil to Goodwin’s Interrogatory No. 11,

J.A. 519; Answer of John Briggs to Goodwin’s Interrogatory

No. 11, J.A, 517; Deposition of Peter P. Mahoney, September

4, 1979, p. 128, J.A. 497; Answer of William Patterson to

Goodwin's Interrogatory No, 10, J.A. 511b.

2851 U.S.L.W. at 4249 (quoting Imbler v. Pachtman, 424

U.S. 409, 439 (1976) (White, J., concurring in the judg-

ment) ).

2951 U.S.L.W. at 4249 (quoting Imbler v. Pachtman, 424

U.S. 409, 440 (1976) (White, J., concurring in the judg-

ment) ).

* See supra pp. 5-6.

-9a-

tional violations." Briggs I explicitly noted that “[plJol-

icy considerations counselling the insulation of private

citizens from civil liability arising from their perform-

ance as witnesses do not apply with equal force when a

complaint charges that constitutional rights have been

violated by a public employee operating from the witne-.

stand . . . . The unique importance of constitutional

rights hardly needs restatement .... [I]t can be as-

serted with both reason and authority that absolute im-

munity is not to be extended to the constitutional tort

context absent the most compelling justification.” ** The

Supreme Court apparently found that neither the public

employee status of the witness, nor the constitutional

character of the alleged violation constituted such a

compelling justification.

III

In granting absolute immunity to public officials act-

ing as witnesses, the Supreme Court recognized that “the

alternative of limiting the official’s immunity would dis-

serve the broader public interest.” ™ “In this instance it

31 The Court cited Briggs I as evidence of a split in the cir-

cuits on the immunity question, which supplied a reason for

granting certiorari. 51 U.S.L.W. at 4248 n.4.

82 569 F.2d at 28.

33 Briscoe involved a suit under 42 U.S.C. § 1983, whereas

the instant case arises directly under the Constitution. See

Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). The Supreme Court has

noted, however, that “it would be untenable to draw a dis-

tinction for purposes of immunity law between suits brought

against state officials under § 1983 and suits brought directly

under the Constitution against federal officials.” Butz v.

Economou, 438 U.S. 478, 504 (1978); see also Harlow v. Fitz-

gerald, 102 S.Ct. 2727, 2738 n.30 (1982).

% Briscoe, 51 U.S.L.W. at 4252.

-10a-

has been thought in the end better to leave unredressed

the wrongs done by dishonest officers than to subject

those who try to do their duty to the constant dread of

retaliation.” ** As a lower court, we are bound by the

balance struck.*® We therefore vacate our prior opinion

and affirm the judgment of the district court granting

summary judgment for Goodwin.

So ordered.

857d, at 4252 (quoting Gregoire v. Biddle, 177 F.2d 579,

581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)).

86 While upholding appellee’s absolute immunity claim,

we note our deep concern. The allegations in this case

painfully illustrate the significant costs of this holding—

not only to the appellant, but to the integrity of our criminal

justice system as well. As the state’s lawyer and an officer

of the court, a prosecutor has a special obligation to dis-

charge his duties lawfully and fairly. In this case, appellant

claims that a prosecutor perjured himself from the witness

stand during a criminal investigation. Our response to appel-

lant’s claim is that a civil damages action, whatever its merits,

may not be pursued against the prosecutor. Instead, appellant

must rely on the possibility of a prosecution of the prosecutor

by his fellow prosecutors. We find it troubling that our

system of justice, which rests so fundamentally on the con-

sent of the governed, offers such inadequate remedies for

Official violations of individuals’ constitutional rights.

-lla-

MACKINNON, Senior Circuit Judge (concurring in the

judgment): I am not in disagreement with much of the

analysis and statements in J udge Bazelon’s present opin-

ion, but I believe some of the facts are more favorable

to Goodwin than the opinion recognizes, and I prefer to

make several comments and rest my concurrence in the

result on the following grounds. First, I continue to ad-

here to the views expressed in my dissent from the

panel’s original decision in Briggs v. Goodwin II, 698

F.2d 486, 497-98 (D.C. Cir. 1983). Second, it is my view

that Goodwin has a valid factual defense in that he had

given orders that government informants be excluded

from the class of potential defendants represented by

defense counse] and was justified in assuming that his

orders had been carried out. Third. in addition to my

opinion that Goodwin enjoys immunity as a witness, I am

also of the opinion that he possesses complete immunity

as a prosecutor, since I generally agree with the opin-

ions expressed in Judge Wilkey’s dissent in Briggs v.

Goodwin I, 569 F.2d 10, 29-61 (D.C. Cir. 1977), cert.

denied, 437 U.S. 904 (1978).

I must also voice my disagreement with the view ex-

pressed in footnote 36 of the majority opinion. That

view fails to acknowledge a basic principle of law that

has been recognized as fundamental to American juris-

prudence for over a hundred years: that those who par-

ticipate in public litigation and who perform certain gov-

ernmental functions are not to be subjected thereby to

harassing civil litigation. This principle has been con-

sistently applied to judges, prosecutors, legislators and

presidents, as well as to witnesses. The law of immunity

and its compelling justifications have been expounded

by some of the greatest jurists in our nation’s history.

See, e.g., Bradley v. Fisher, 13 Wall. 337, 351 (1872)

(Field, J.) (“{J]udges ... are not liable to civil actions

for their judicial acts, even when such acts are in excess

of their jurisdiction, and are alleged to have been done

maliciously or corruptly.”); Pierson v, Ray, 386 U.S.

-12a-

547, 554 (1967) (Warren, C.J.) (“This immunity ‘is

not for the protection or benefit of a malicious or corrupt

judge, but for the benefit of the public, whose interest it

is that judges should be at liberty to exercise their func-

tions with independence and without fear of conse-

quences.’”) (quoting Scott v. Stansfield, L.R. 3 Ex. 220,

223 (1868)); Barr v. Matteo, 360 U.S. 564, 572-73

(1959) (Harlan, J.) (“The privilege is not a badge or

emolument of exalted office, but an expression of a

policy designed to aid in the effective functioning of gov-

ernment.”) ; Gregoire v. Biddle, 177 F.2d 579, 581 (2d

Cir. 1949), cert. denied, 339 U.S. 949 (1950) (L. Hand,

J.) (“The justification for ... [denying recovery] is

that it is impossible to know whether the claim is well

founded until the case has been tried, and to submit all

officials, the innocent as well as the guilty, to the burden

of trial and the danger of its outcome would dampen the

ardor of all but the most resolute... .”) (quoted in

Nixon v. Fitzgerald, —— U.S. ——, ——, 102 S. Ct.

2690, —— n.32 (1982)). My final objection to the per-

sonal comments in footnote 36 is that they are extraju-

dicial and serve no worthwhile purpose, as the Supreme

Court has spoken.

-13a-

APPENDIX B

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Apprals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No, 80-2269

JOHN BRIGGS, ET AL., APPELLANTS

Vv.

Guy GOODWIN, ET AL.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 74-00803)

Argued October 26, 1981

Decided January 11, 1983

Nancy Stearns with whom Morton Stavis, Doris Peter-

son, Philip J. Hirschkop and Jack Levine were on the

brief, for appellants.

Robert F. Muse with whom Jacob A. Stein was on the

brief, for appellee.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

-l4a-

Before: MACKINNON and GINSBURG, Circuit Judges

and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

BAZELON.

Dissenting opinion filed by Circuit Judge MACKINNON.

BAZELON, Senior Circuit Judge: This civil suit arises

out of criminal proceedings brought against appellants in

1972. Appellants: allege that Charles Goodwin, an at-

torney with the Department of Justice, misrepresented to

them in open court that one of their comrades was not a

government informant. They claim that this misrepre-

sentation, which Goodwin left uncorrected, violated their

Sixth Amendment right to the effective assistance of coun-

sel because it led them to share various aspects of their

defense with the informant. They seek both compensatory

and punitive damages in a “Bivens-type” cause of action

arising directly under the Constitution.

The district court granted summary judgment in favor

of appellee, holding that he made his representation in good

faith. We do not agree with the district court’s conclusion

that the good faith of the appellee presents no genuine

issue as to any material fact. Nor can we accept the

other grounds offered by appellee in support of affirm-

ance; namely, that appellants’ acquittal in their criminal

trial negates any claim of a Sixth Amendment violation,

and that appellants have not stated a valid cause of action

within the contemplation of Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1970).

1 There are twelve appellants in this action. Some of their

claims are factually distinct. Neither side, however, relies on

these distinctions at this stage in the proceedings. We, there-

fore, do not consider the importance of such differences. As

a result, any reference hereafter to “appellants” or “plain-

tiffs” may or may not encompass all of the appellants. Fur-

ther, we leave to the district court the application of this de

cision to individual appellants. —

-15a-

“I, BACKGROUND

These are the facts read favorably for the appellants.?

On July 7, 1972, a grand jury in Tallahassee, Florida,

subpoenaed appellants to testify concerning their activi-

ties in connection with the Vietnam Veterans Against the

War (VVAW). The subpoenas were returnable 3 days

later on July 10, 1972." A group of lawyers hastily as-

sembled to represent the subpoenaed witnesses. Because

of the extreme time pressure involved the lawyers coun-

selled many of the potential witnesses on a group basis.

2 While courts should be vigilant to dispose of non-meritori-

ous claims at the pretria! stage, see Harlow v. Fitzgerald, 50

U.S.L.W. 4815, 4817 (U.S. June 24, 1982) ; Butz v. Economou,

438 U.S. 478, 507-08 (1978), the rules governing summary

judgment in cases involving officials claiming a qualified im-

munity do not differ from those applicable in other contexts.

See Halperin v. Kissinger, 606 F.2d 1192, 1209 (D.C.Cir.

1979) ; Apton v. Wilson, 506 F.2d 88, 94-95 (D.C.Cir. 1974).

But see Halperin v. Kissinger. 606 F.2d at 1214 (Gesell, J.,

concurring).

Summary judgment is to be granted only if there are no

material facts at issue and the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56. This does

not mean that summary judgment may be opposed by mere

protestations that the facts are different or in dispute. Fed.

R. Civ. P. 56(e); First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253, 288-90 (1968). Instead, the party

opposing summary judgment generally must present affi-

davits, depositions, answers to interrogatories, or admissions

which set forth the disputed facts in such a form as would be

admissible as evidence. Jd.

3’ July 10, 1972, was the first day of the Democratic Na-

tional Convention in Miami Beach, Florida. Appellants had

parade permits for a protest march at the Convention on that

day. They could not use these permits because of the appel-

lants’ compelled attendance at the grand jury. In an earlier

case, appellants’ claim was rejected that the timing of the

subpoenas and the grand jury proceedings violated their First

Amendment rights. Beverly v. United States, 468 F.2d 732,

747-49 (5th Cir. 1972).

-l6a-

Unknown to either the appellants or their lawyers, one

of those subpoenaed, Emerson Poe, was a paid undercover

FBI informant. The grand jury subpoenaed him in order

to keep secret his status as an informant. Despite this

status, Poe attended a group meeting of the plaintiffs and

their lawyers on July 8, 1972, in preparation for the

grand jury. He also signed a retainer form with appel-

lants’ attorneys, though the scope of that retainer is

unclear. Throughout the grand jury proceedings, Poe

consulted with appellants’ lawyers and ‘vas present in the

cramped hallway where the appellants also consulted with

their lawyers.‘

Recurring rumors of police and FBI infiltration of

VVAW prompted concern among th< appellants that in-

formants might be in their midst. Group counsel filed a

motion with the district court to discover whether any of

the witnesses represented by them were government in-

formants. To clarify that motion, the district court re-

quested that counsel list the witnesses in question and

their respective attorneys. On July 12, that list was pre-

sented orally on the record before the court. Emerson Poe

was among the names listed. During discussion of the

motion the next day, the court peremptorily directed

Goodwin to take the stand and be sworn. He was asked

one question:

THE COURT: Mr. Goodwin, are any of these

witnesses represented by counsel agents or inform-

ants of the United States of America?

THE WITNESS [GUY GOODWIN]: No, Your

Honor.

Goodwin knew at the time that Poe was an FBI in-

formant. He also had the opportunity to see Poe among

the plaintiffs and their attorneys as they waited in the

*The grand jury asked Poe only his name and address.

Several other subpoenaed witnesses also received only cursory

examinetion.

-l7a-

hall outside of the grand jury room. On the other hand,

Goodwin claims to have issued instructions that Poe was

not to become involved with the appellants’ defense efforts

or their attorneys. In addition, the record reveals possible

confusion over whether or not Poe was one of the wit-

nesses covered by the judge’s question.®

Later that day, the grand jury indicted six of the

appellants on federal criminal charges relating to an al-

leged conspiracy to cros$ state lines to instigate a riot.*

Two other appellants were subsequently indicted on the

same charges. The grand jury granted the remaining

four appellants immunity; when they refused to testify,

they were convicted of contempt.’ Poe was not indicted on

any charge.

Shortly after the grand jury proceeding, Poe, at the

behest of the FBI, retained a local lawyer to inform ap-

pellants’ attorneys that he would be representing Poe in

any further proceedings. Nonetheless, the appellants

continued to take Poe into their confidence and discuss

aspects of the upcoming trial with him. Poe attended a

number of meetings among appellants at which they dis-

cussed defense matters. Appellants’ attorneys were some-

times present. On ut jeast one occasion, appellants ques-

tioned Poe’s presence at these meetings because he was

not an actual defendant.

Despite renewed instructions scrupulously to avoid

“invading” the defense camp, Poe reported to the FBI

regarding his attendance at meetings, his other involve-

ment with the appellants, and the information he ac-

5 J.A. at 604-610.

*For a complete enumeration of the charges, see Beverly

v. United States, 468 F.2d at 732, 757 n.9.

* These convictions were subsequently overturned on unre-

lated grounds. Beverly v. United States, 468 F.2d 732 (5th

Cir. 1972).

-18a-

quired. The FBI routinely passed such information on to

the Justice Department. Among the information that Poe

provided the FBI was information concerning the severe

financial impact of a pending motion on the defense team;

the intention of one of the appellants to visit a potential

witness for the government; friction among members of

the defense team; and a jury-selection survey being con-

ducted by the defense. Poe agreed to help appellants col-

lect information for the survey, but he failed to do so or

reported false information.

On August 17, 1973, pursuant to the Jencks Act,’

appellants obtained written materials revealing Poe’s in-

formant status. At a pretrial hearing in their criminal

prosecution, the indicted appellants succeeded in sup-

pressing certain evidence discovered by Poe and turned

over to the FBI.® The court held that the means used to

gather the evidence violated the Sixth Amendment.*® At

trial, the jury acquitted plaintiffs of all charges.

Appellants brought this action alleging that Goodwin

violated their Sixth Amendment rights both directly

through his misleading statement on witness informants

and indirectly through his failure to remedy the situation

when it became apparent that Poe was gathering con-

fidential defense information and reporting it to the

FBI. Goodwin moved for dismissal of the complaint,

$18 U.S.C. § 3500 (1976).

® United States v. Briggs, No. 73-1353, Tr. at 281 82; J.A.

at 680-81 (N.D. Fla. Aug. 17, 1973).

1° The court found the means used for obtaining the evi-

dence inconsistent with the mandate of Massiah v. United

States, 377 U.S. 201 (1964) (surreptitious interrogation of

criminal defendants violates Sixth Amendment). See also

United States v. Henry, 447 U.S. 264 (1980) (admission of

evidence gathered by government informant planted in jail

violates sixth amendment).

11 Plaintiffs initially also sued two other attorneys for the

United States, William Stafford and Stuart Carrouth, and an

-19a-

arguing that as a public prosecutor he was entitled to

absolute immunity from private damage suits for actions

taken in his offitial capacity. He also claimed that his

statement was made while a “witness” in court, and that

he should be entitled to absolute witness immunity. Both

the district court and a panel of this court denied a mo-

tion to dismiss on either of these immunity grounds.”

Instead, we determined that Goodwin was only entitled

to a qualified immunity; he would be protected from pri-

vate suit only if »is actions were taken in good faith.™

On remand, Goodwin moved for summary judgment.

The district court rejected a renewed claim of absolute

immunity, but granted summary judgment on a finding

that Goodwin had established his good faith because he

“in fact believed in the veracity of his statement’ con-

cerning informants represented by common counsel.’* In

this appeal, appellants contend that material issues of

fact remain in dispute. Goodwin disagrees and offers sev-

eral other grounds for affirming summary judgment.

FBI agent, Claude Meadow, who were involved in the investi-

gation, indictment and criminal trial. The complainis against

Stuart, Carrouth, and Meadow were dismissed for improper

venue. Stafford v. Briggs, 444 U.S. 527 (1980).

2 Briggs v. Goodwin, 384 F. Supp. 1228, 1230 (D.D.C.

1974) ; Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977), cert.

denied, 437 U.S. 904 (1978) [hereinafter referred to as

Briggs I}. That case was heard on interlocutory appeal under

28 U.S.C. § 1292(b) (1976). While only the issue of prosecu-

torial immunity was certified for appeal in Briggs I, the

opinion reached the issue of witness immunity in the interest

of judicial economy. 569 F.2d at 25-28; see also id. at 26 n.14

(dissenting from view that witness immunity issue was prop-

erly before the court).

3 Briggs v. Goodwin, 569 F.2d at 16, 25.

™ Briggs v. Goodwin, No. 74-803, slip op. at 4 (D.D.C.

Sept. 19, 1980).

-20a-

II. DISCUSSION

A. The Grant of Summary Judgment

In granting summary judgment, the district judge

relied heavily on the deposition testimony of Goodwin,

Poe, and other government officers associated with the

case. That evidence supports Goodwin’s claim that he in-

structed Poe not to join in the appellants’ defense. It

also suggests that Goodwin believed that Poe was no* in-

cluded in the class of persons whom he stated were not

government informants. Appellants contend that this

evidence does not settle all disputes over material facts.

We agree.

In Scheuer v. Rhodes, 416 U.S. 232 (1974), the Court

described the qualified immunity as follows: “It is the

reasonable grounds for the belief formed at the time and

in light of all the cireumstances, coupled with good-faith

belief, that affords a basis for qualified immunity.” Id. at

247-48. The test is an objective one, see Harlow v. Fitz-

gerald, 50 U.S.L.W. 4815, 4820 (U.S. June 24, 1982),

focusing on whether the official “knew or reasonably

should have known that the action he took within his

sphere of official responsibility would violate[] constitu-

tional rights.” Wood v. Strickland, 420 U.S. 308, 322

(1975). In the instant case, appellants contend that

Goodwin knew that his statement was false or mislead-

ing, and that even if he believed the truth of his state

ment, such a belief was unreasonable. They further con-

tend that in light of Poe’s continuing reports to the FBI

on defense plans and concerns, Goodwin unreasonably

failed, after July 13, to correct or clarify his sworn

statement.

Judges and juries have specialized functions in cases

in which negligence (what appellee should have shown)

or state of mind (what appellee actually knew) is in is-

-2la-

sue."* Our judicial system relies on the competence of

juries to apply standards of reasonableness to particular

fact situations and to make determinations of the state

of mind of parties in light of the circumstances sur-

rounding an action. Summary judgment should be

granted on such issues only when they are so clear that

a judge can decide them as a matter of law. This degree

of clarity is not present here.

There is, for example, some conflict between the deposi-

tions of Goodwin and FBI agent Pence. Pence maintains

that prior to July 13, he told Goodwin that informant

Poe had received instructions to consult with the defense

attorneys for the VVAW members on the same basis as

the other witnesses (Pence Dep. 25-6, J.A. pp. 229-30).

Goodwin maintains that he did not learn of these instruc-

tions until after he made his statement (Goodwin Dep.

p. 54, J.A. p. 204). Both depositions agree that Goodwin

objected to those instructions. According to the Pence

version, however, a jury might conclude that Goodwin

had reason to suspect that Poe was not obeying earlier

instructions to avoid getting involved in the defense of

the other witnesses. A jury could find this discrepancy

important in determining whether Goodwin actually be-

lieved the truth of his statement and whether such a

belief was reasonable.

More important, however, the district court granted

summary judgment based entirely on appellee’s good

faith belief at the time of making his statement on

July 13. This view of good faith is too narrow. If, at

some time after making his statement before the court,

Goodwin knew or reasonably should have known that it

was either false or had been misleading, he had an obli-

15 See 10. C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND

PROCEDURE §$§ 2729, 2730 (19783).

¢ -22a-

gation to correct or clarify his statement for those that

it had misled."”

In defining the requiremen’s of good faith this way, we

find instructive the principles of the common law govern-

ing torts such as misrepresentation and deceit. Those

principles impose a duty on an individual who makes a

statement to clarify that statement to those justifiably

relying on it if he later learns that his original statement

was false or misleading.’’ Such a duty can arise even

though the statement is literally true if it is ambiguous

enough to be misinterpreted. The test is the effect that

the statement would have ‘on the ordinary mind.” *

These common law tort principles do not control constitu-

“In Briggs I we held that Goodwin's “protection from lia-

bility depends upon a showing that he entertained a good-

faith, reasonable belief in the truth of his response to the

federal] district judge in Florida.” Briggs v. Goodwin, 569

F.2d at 16. Thereafter, in granting summary judgment, it

appears that the district court interpreted this language too

narrowly. Our earlier opinion concerned only Goodwin's

claim of absolute immunity regarding his statement on July

13. In rejecting that claim, the precise contours of the quali-

fied immunity were not an issue before the court, and were

not part of our ratio decidendi. That opinion was not, nor

was it intended to be, an exhaustive description of the good

faith immunity. Nothing in that opinion conflicts with or

precludes the requirement of good faith that we describe to-

day. Nor is this opinion a definitive work on good faith im-

munity; additional refinements may become necessary as the

facts in this case develop. Based on the allegations and the

facts as developed thus far, we find merely that the appel-

lants’ right to rely on Goodwin’s statement imposed the duty

on him to clarify or correct his statement as described above.

17 See PROSSER, LAW OF TORTS § 106 at 695-97 (1977). Cf.

also RESTATEMENT (SECOND) OF TorTs § 551(2)(c) (1977)

(liability for nondisclosure in business transactions) ; Monroe

v. Pape, 365 U.S. 167, 187 (1961) (incorporating tort rule

that imposes liability “for the natural consequences of [a

defendant’s] actions’).

18 See PROSSER, LAW OF TORTS § 106 at 695 (1977).

-23a-

tional torts because such actions are governed by federal

common law.'* But traditional common law torts do pro-

vide a background from which to draw analogies,*” and

we find them relevant in this situation.

In the instant case, appellants clearly had a right to

rely on Goodwin’s statement—it was a statement under

oath made specifically for their benefit. It also appears

that the appellants would not have trusted Poe but for

their belief that he was not an informant. For the pur-

poses of summary judgment, we can also assume that

this belief was based on Goodwin’s representation to the

district court. Goodwin’s representation and his failure

to correct any misimpression that he may have created

may thus have occasioned the Sixth Amendment violation

and consequent injury appellants assert. If Goodwin

knew or should reasonably have foreseen that his state-

ment had misled appellants in the manner they allege,

1° See Carlson v. Green, 446 U.S. 14, 23 (1980); Burks v.

Lasker, 441 U.S. 471, 476 (1979).

20 Federal courts have frequently used the common law

background of torts to fill in gaps in the development of con-

stitutional torts. In Monroe v. Pape, 365 U.S. 167 (1961),

the Court referred to “the background of tort liability”

against which section 1979 should be interpreted. Jd. at 187.

In Pierson v. Ray, 386 U.S. 547 (1967), the Court relied on

this reference, along with general common-law sources such

as treatises and state law cases, to extend the common-law

defenses of good faith and probable cause to Jackson, Mis-

sissippi, police officers sued for unconstitutional arrests. /d.

at 555-57. In other situations, courts have relied on the com-

mon law to provide guidance in establishing constitutional

tort principles concerning issues such as the defendants’ state

of mind, see generally Kirkpatrick, Defining a Constitutional

Tort Under Section 1983: The State of Mind Requirement,

46 U. CIN. L. REv. 45 (1977), causation, and the magnitude

of injury necessary to accord compensation. See Carey v.

Piphus, 435 U.S. 247, 255-56 & nn. 7, 9 (1978) (citing tort

treatises to support the causation requirement imposed upon

plaintiff) ; see Whitman, Constitutional Torts, 79 Micu. L.

REV. 5, 14-21 (1980).

-24a-

his failure to apprise appellants and the court of the full

truth about Poe would preclude successful invocation of

a good faith immunity defense. Thus, the facts necessary

to grant appellee summary judgment have not been

established and we must reverse the decision of the dis-

trict court.

Appellee, however, offers alternative bases on which he

contends summary judgment should be affirmed. When

reviewing a grant of summary judgment, it is within the

proper discretion of an appellate court to affirm on a

basis other than that relied upon by the district court.

After careful consideration of the arguments put forth

by appellee, we reject them all. But because the law of

constitutional torts and of the Sixth Amendment are both

experiencing rapid growth and considerable confusion,

the legal theories advanced by the appellee merit

discussion.

B. Sixth Amendment Violations

In Weatherford v. Bursey,*! the Supreme Court held

that a threat of significant harm to the defendant was a

necessary component of a nondeliberate violation of the

Sixth Amendment.*? Mere attendance by an undercover

agent at a meeting with the criminal defendant and his

attorney does not constitute a Sixth Amendment violation

21 429 U.S. 545 (1977).

22 A deliberate attempt by the government to obtain defense

strategy information or to otherwise interfere with the attor-

ney-defendant relationship through the use of an undercover

agent may constitute a per se violation of the Sixth Amend-

ment. United States v. Morrison, 602 F.2d 529, 531-32 (3d

Cir. 1979), rev'd on other grounds, 449 U.S. 361 (1981); ef.

Weatherford v. Bursey, 429 U.S. at 557, 558 (noting lack of

purposeful state intrusion); Klein v. Smitn, 559 F.2d 189,

197-200 (2d Cir. 1977) (discussing but not deciding whether

intentional intrusion constitutes a per se violation). But see

United States v. Glover, 596 F.2d 857, 263-64 & n.10 (9th Cir.

1979).

-25a-

as long as the agent communicates nothing of what he

learns to his superiors and does not testify as to the con-

tent of the conversation.** In the instant case, appellee

*3 429 U.S. at 554.

Judge MacKinnon’s reliance on Weatherford to require a

dismissal of this case is unwarranted. Weatherford involved

a meeting between a lawyer and his client in the presence of

a government informant. The informant attended the meet-

ing at the client’s request in order to avoid raising suspicions

concerning his informant status. He did not provide the pros-

ecution with any information concerning the client’s defense.

The Court explicitly relied on that fact to hold that no Sixth

Amendment violation had occurred, id. at 556, and added that

“had the prosecution learned from [the agent] the details of

the [lawyer-client] conversations, [the respondent] would

have a much stronger case.” Id. at 554. In the instant case,

appellants have demonstrated that the informant may have

passed information concerning their case to the prosecution.

Thus, this case presents a question that Weatherford explicitly

left unanswered and described as a “much stronger” claim.

The dissent maintains that this distinction of Weatherford

is contradicted by the record. Specificaily, Judge MacKinnon

relies on the district court’s finding that “Goodwin was not

privy to [defense strategy] information when he made his

assertion to Judge Middlebrooks.” This finding, however,

relates only to Goodwin’s knowledge at the time of his

statement before the grand jury. Sixth Amendment protec-

tions are implicated whenever the prosecution improperly ob-

tains defense strategy information in a criminal proceeding.

Appellants have pointed to circumstances suggesting that

after Goodwin’s statement before the grand jury, Poe ob-

tained such information and passed it on to the FBI, which

forwarded it to Goodwin. (Appellant’s Brief at 20-23; Pence

Dep. pp. 11-14) Interpreting those circumstances as we must

on summary judgment, this case is clearly not appropriate

for dismissal under Weatherford.

Finally, Judge MacKinnon is factually incorrect in assert-

ing that the record “does not contain a shred of specific evi-

dence that Goodwin actually received’ the information sent

by the FBI to the Justice Department. Deposition testimony

by FBI agent Pence, who supervised FBI activities in this

case, states explicitly that his contact at the Justice Depart-

-26a-

relies on the fact that appellants were all acquitted, and

contends that therefore no violation of the Sixth Amend-

ment occurred.**

The threat of significant harm required by Weather-

ford does not, however, have to amount to “prejudice” in

the sense of altering the actual outcome of the trial.

Although the Sixth Amendment is concerned primarily

with fairness at trial, it is not limited to that function.**

ment, to whom he sent all information, was appellee Goodwin.

Pence Dep. at 12-14, 40-41, J.A. at 224-26, 232-33. Moreover,

even in the absence of this specific evidence, Judge MacKin-

non’s assertion once again ignores that on summary judgment

all inferences are to be drawn in favor of the appellant.

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Where information bearing on a pending case is sent to the

Justice Department, it is hardly a great leap of faith to infer

that it “actually” reached the prosecutors in the case.

*4In a slightly different argument, appellee contends that

because of appellants’ acquittal on criminal charges, appel-

lants can show no damages or cannot prove the actual amount

of any damages they suffered even if a Sixth Amendment

violation occurred. We agree that the injuries allegedly suf-

fered by appellants may be intangible and elusive. We also

agree that appellants may have a difficult time proving actual

“damages” in the tort sense, and that such proof is necessary

for them to recover a compensatory award. Carey v. Piphus,

435 U.S. 247, 257-65 (1978). Nevertheless, they should be

given an opportunity to do so. Moreover, a cause cf action

arising from the violation of the appellants’ constitutional

rights is “actionable for nominal damages without proof of

actual injury.” Jd. at 266; see also Basista v. Weir, 340 F.2d

74 (3d Cir. 1965).

25 Cf. United States v. Morrison, 449 U.S. 361, 367 (1981)

(implying possible civil damage action when Sixth Amend-

ment violation does not alter overall fairness of criminal

trial).

26 See Miranda v. Arizona, 384 U.S. 436, 465-66 (1966)

(counsel ensures fair treatment by government officials) ;

Escobedo v. Illinois, 378 U.S. 478, 486-87 (1964) (same) ;

United States v. Valencia, 541 F.2d 618, 622 (6th Cir. 1976) ;

Fitzgerald v. Estelle, 505 F.2d 1334, 1337-38 (5th Cir. 1974)

(en banc), cert. denied, 422 U.S. 1011 (1975).

-27a-

The right to counsel protects the whole range of ihe ac-

cused’s interests implicated by a criminal prosecution.

These interests may extend beyond the wish for exonera-

tion to include, for example, the possibilities of a lesser

charge, a lighter sentence, or the alleviation of “the prac-

tical burdens of a trial.” *”

In Weatherford, the intrusion imposed no additional

effort or burden on the defense, as the informant did not

turn over any evidence to the prosecution. In the instant

case, the evidence gathered by Poe could have been used

against the appellants if they had not challenged it.

Moreover, the appellants need not prove that the prosecu-

tion actually used the information obtained. The pros-

ecution makes a host of discretionary and judgmental

decisions in preparing its case. It would be virtually

impossible for an appellant or a court to sort out how

any particular piece of information in the possession of

the prosecution was consciously or subconsciously fac-

tored into each of those decisions. Mere possession by the

prosecution of otherwise confidential knowledge about the

defense’s strategy or position is sufficient in itself to

establish detriment to the criminal defendant. Such in-

formation is “inherently detrimental, . .. unfairly ad-

vantage[s] the prosecution, and threaten[s] to subvert

the adversary system of criminal justice.” ** Further,

once the investigatory arm of the government has ob-

tained information, that information may reasonably be

assumed to have been passed on to other governmental

organs responsible for prosecution. Such a presumption

merely reflects the normal high level of formal and in-

formal cooperation which exists between the two arms of

the executive.”

*7 United States v. Brady, 397 U.S. 742, 751-52 (1970) ;

see also Tollett v. Henderson, 411 U.S. 258, 267-68 (19738).

28 Weatherford v. Bursey, 429 U.S. at 556.

2° See United States v. Morrison, 602 F.2d 529, 536 (3d

Cir.), rev’d on other grounds, 449 U.S. 361 (1980) ; see also

-28a-

Appellants contend that Poe’s continued status after

their indictment as both a secret FBI informant and as

their confidant obstructed their counsel’s efforts to gain

expeditious and economical dismissal of the criminal

charges they faced. FBI documents show that Poe in-

formed the FBI of the appellants’ efforts to contact a

potential witness; the financial difficulties of the defense

team, particularly regarding the adverse financial impact

of a particular venue motion; and the existence of a jury

selection survey.*” Moreover, there is evidence that the

FBI routinely passed information received from Poe to

the Department of Justice and attorneys involved in this

case.*' Such information would undoubtedly have been of

interest to a prosecuting team planning its strategy.

Thus, the record suggests a realistic possibility that ap-

United States v. Levy, 577 F.2d 200, 210 (3d Cir. 1978);

cf. United States v. Natale, 494 F. Supp. 1114, 1124-25 (E.D.

Pa. 1979) (detailed “chinese wall” procedures prevented pros-

ecuting team from obtaining prohibited information from

investigators). The government is, of course, free to rebut

this presumption, by showing, for example, procedures in

place to prevent such intragovernmental communications.

%® Joint Appendix at 84-85, 118-19, 126. Gcoodwin’s reliance

on United States v. Kilrain, 566 F.2d 979 (5th Cir. 1978), and

Klein v. Smith, 559 F.2d 189 (2d Cir. 1977), is therefore mis-

placed. In both those cases there were factual findings by the

trial court that no strategy information was passed onto the

government.

31 Joint Appendix at 222-26, 232-33. We are not without

solicitude for the government’s dilemma. The government

may have legitimate reasons, such as maintaining an individ-

ual’s cover or continuing an ongoing investigation, to keep an

informant in a position where he or she necessarily receives a

continuous flow of information thought by the defense to be

confidential strategy. The proper course, however, is not for

courts to excuse government intrusion in these circumstances,

but for the government to ensure that no harm to the defend-

ant’s cause—and thus no Sixth Amendment violation—flows

from the intrusion. See pp. 12-13.

-29a-

pellants suffered injury as a result of governmental in-

trusions in violation of the Sixth Amendment.

C. The Appropriateness of a Bivens-Type Action

When this case was before this court on interlocutory

appeal concerning appellee's claim of immunity, we con-

fined our decision to the narrow question of immunity that

was before us.”* In so doing, we explicitly avoided the

question of when and whether Bivens establishes a cause

of action for violations of the Sixth Amendment, as dis-

tinct from Fourth Amendment violations which were at

issue in Bivens. Such caution was warranted because the

scope of the Bivens cause of action had produced sharp

conflict among the circuits."

We find it conceptually awkward to continue our

avoidance of that issue in the present posture of this

case. Appellee contends that we should affirm summary

* Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir. 1977).

3° Several Courts had 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 (8d Cir. 1975);

Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392

(6th Cir. 1975) ; States Marine Lines, Inc. v. Shultz, 498 F.2d

1146 (4th Cir. 1974) ; United States ex rel. Moore v. Koelzer,

457 F.2d 892 (3d Cir. 1972) ; Gardels v. Murvhy, 377 F.Supp.

1389 (N.D.IIl. 1974); and Butler v. United States, 365 F.

Supp. 1035 (D.Haw. 1973). Other courts had read the leading

case more narrowly, restricting its sway to Fourth Amend-

ment transgressions like that actually treated by the Supreme

Court in Bivens. See, e.g., Moore v. Schlesinger, 384 F.Supp.

163, 165 (D.Colo. 1974), aff’d by unpub. opinion (10th Cir.

Nov. 21, 1975), cert. denied, 425 U.S. 958 (1976) ; and David-

son v. Kane, 337 F.Supp. 922, 924 (E.D.Va. 1972). Several

tribunals had noted the issue, but reserved decision. See, e.g.,

Holodnak v. Avco Corp., 514 F.2d 285, 292 (2d Cir.), cert.

denied, 423 U.S. 892 (1975), and Wahba v. New York Uni-

versity, 492 F.2d 96, 103-04 (2d Cir.), cert. denied, 419 U.S.

874 (1974).

-30a-

judgment because appellants have failed to state a valid

cause of action under Bivens. A decision on that issue

seems necessary prior to a decision on whether an in-

dividual enjoys an immunity to that cause of action.

Moreover, in the few years since our last opinion in this

case, several Supreme Court opinions have provided some

clarity in this area. As a consequence, the need to pro-

ceed with such caution has diminished.

In Davis v. Passman, 442 U.S. 228 (1979), the Court

upheld a cause of action brought by a woman against a

Congressman who allegedly engaged in sex discrimi-

nation in a staff employment decision. By relying on

Bivens, despite the fact that the right asserted was pro-

tected by the Fifth Amendment, the Court made clear

that the Bivens holding was not limited to violations of

the Fourth Amendment. In Carlson v. Green, 446 U.S.

14 (1980), the Court expanded the law created by Bivens

and Davis still further. A mother sued for damages

allegedly caused by federal prison officials’ violation of

her deceased son’s constitutional rights protected by the

Eighth Amendment. The Court held that a tort remedy

was “available directly under the Constitution,” even

though the allegations could also support a suit under the

Federal Tort Claims Act. That holding made clear that

a Bivens-type suit can exist even where other remedies

are available. The Court interpreted the Bivens holding

in a sweeping manner:

Bivens established that the victims of a constitu-

tional violation by a federal agent have a right to

recover damages against the official in federal court

despite the absence of any statute conferring such a

right. Such a cause of action may be defeated in a

particular case, however, in two situations. The first

is when defendants demonstrate “special factors

counselling hesitation in the absence of affirmative

action by Congress.” 403 U.S., at 396; Davis v.

Passman, 442 U.S. 228, 245 (1979). The se#ond is

when defendants show that Congress has provided

-3la-

an alternative remedy which it explicitly declared to

be a substitute for recovery directly under the Con-

stitution and viewed as equally effective. Bivens,

supra, at 397; Davis v. Passman, supra at 245-247.

446 U.S. at 18-19 (emphasis in original).

By saying that the cause of action may be defeated “in

two situations,” the Court implied that it may not be de-

feated in other situations. Appellee in this case has not,

thus far, demonstrated that either of these situations

obtains in the instant case. He has not shown an alter-

nate remedy that Congress has explicitly labelled as a

susbtitute for a Bivens action. Nor has appellee identi-

fied “special factors counselling hesitation.” Appellee

contends that, as prosecutor, he needs absolute immunity

from such cases, but this claim was fully considered by

this court before. In that decision, we determined that

the requirements of Goodwin’s job justified only a quali-

fied immunity, an immunity that depended on the good

faith of his actions.

Thus, we see no apparent reason why the Sixth

Amendment rights in this case ought to be treated dif-

ferently from the Fourth Amendment rights at issue in

Bivens, the Fifth Amendment rights at issue in Davis v.

Passman, or the Eighth Amendment rights at issue in

Carlson v. Green. In addition, the damage remedy pro-

vided by a Bivens-type suit is appropriate in this context.

Damages are a traditional remedy for unwarranted

harm resulting from the judicial process; the Bivens-type

action involved here is analogous to tort actions for false

imprisonment, malicious prosecution, and abuse of proc-

ess. Moreover, alternative remedies are often unavail-

able for violation of Sixth Amendment rights. An exclu-

sionary rule may provide prospective relief in some cases,

but does not offer any compensatory relief. Appellate

review of convictions provides no relief for those who

would have been convicted in spite of the Sixth Amend-

ment violation, for those who are acquitted, and for those

-32a-

who are never even taken to trial but who are nonethe-

less dragged through the early stages of the criminal

process. The vindication of Sixth Amendment rights to

the effective assistance of counsel for such persons will

depend solely on the availability of a damage remedy.

For such persons “the ‘exclusionary rule’ is simply irre-

levant[;] [flor people in [their] shoes, it is damages or

nothing.” *

CONCLUSION

We have only examined the record to see if appellants

have raised material disputes over factual or inferential

issues. We have concluded, contrary to the district court,

that the appellants have pointed to evidence that estab-

lishes a genuine contest on the issue of appellee’s good

faith. We also cannot find any other basis on which to

afirm summary judgment. Appellants have demon-

strated a possible Sixth Amendment violation and the

possible liability of Goodwin. They should be allowed to

proceed to trial.

Reversed and remanded for

further proceedings consistent

with this opinion.

* Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 408 U.S. 388, 410 (1971) (Harlan, J.,

concurring).

-33a-

MACKINNON, Circuit Judge (dissenting). In my opin-

ion the summary judgment of the district court should

be affirmed. For reasons set forth in Judge Wilkey’s dis-

sent in Briggs I (Briggs v. Goodwin), 569 F.2d 10, 46-

61 (D.C. Cir. 1977), cert. denied, 437 U.S. 904 (1978),

I would rule that Goodwin was entitled to complete im-

munity as a witness. Moreover, appellants’ claims should

be dismissed under Weatherford v. Bursey, 429 U.S. 545

(1977)' (‘an undercover agent’s knowledge of defense

1 The attempt of the majority in its footnote 23 to distin-

guish Weatherford is contradicted by the record. Ii rests on

the unsubstantiated assumption that information on defense

strategies passed to the FBI, and thence “routinely” to the

Justice Department, see majority op. at 4, necessarily made

its way to Goodwin himself. But the Department of Justice

is a very large organization and the trial] court specifically

found that

the evidence supporting plaintiffs’ assertion that Poe was

cognizant of some defense strategy also indicates that

Goodwin was not privy to this information when he made

his assertion to Judge Middlebrooks. Finally, the asser-

tions of defense counsel on July 12th indicating that Poe

was not being represented supported Goodwin's belief

that Poe was in fact not represented by counsel. [JA

605.] It is clear that Goodwin did not perjure himself on

July 18, 1972.

(JA5) (emphasis added).

Since the suit against Goodwin turns on allegations that je

was privy to the information when testifying, summary judg-

ment was appropriate because there was no showing that a

genuine issue of material fact remained as to whether ap-

pellants’ Sixth Amendment rights had been violated by that

testimony.

As for the claim that appellants’ Sixth Amendmert rights

were violated by Goodwin’s failure to advise them of subse-

quent information allegedly received concerning informants,

the record does not contain a shred of specific evidence that

Goodwin actually received such information. If the prosecu-

tor did not receive such information, the defendants were not

harmed. The majority refers, however, to the deposition

-34a-

discussions that is not communicated to the prosecutor

does not violate any constitutional right of the defend-

ant). I thus dissent.

In addition, I am also unable to agree with this court’s

earlier decision that ruled Goodwin was not entitled to

prosecutorial immunity. Briggs v. Goodwin, supra. As

an employee of the Department of Justice, he was des-

ignated by the Attorney General to prosecute the case,

and that constituted his entire authority. Our earlier de-

cision fails to recognize the normal obligations of a prose-

cutor and draws an overly fine distinction in artificially

bifurcating his role into “advocate” and “investigator”

for the purpose of deciding whether immunity should

attach.

testimony of FBI agent Pence, who stated that he routinely

passed on all information to Goodwin. Majority op. at n.23.

But the gap between routine distribution and actual receipt

of specific reports can only be bridged by speculation. While

“inferences to be drawn from the underlying facts . . . must

be viewed in the light most favorable to the party opposing

fa summary judgment] motion,” United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962) (per curiam), the majority

confuses inference with speculation.

-35a-

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

JOHN BRIGGS, et al.,

Plaintiffs,

Vv. CIVIL ACTION

No. 74-803

GUY GOODWIN, et al.,

Defendants.

MEMORANDUM OPINION *

Before the Court is Defendant's

Motion for Summary Judgment in the above

captioned case. Plaintiffs are former

members of the Vietnam Veterans Against

the War (VVAW). They are suing Defendant

Goodwin, a former Department of Justice

Attorney, alleging that he conspired to

deprive Plaintiffs of various statutory

and constitutional rights. The facts may

be summarized as follows:

In January of 1972 the FBI commenced

an investigation of Plaintiffs. In the

spring and summer of 1972, Goodwin was the

Chief of the Special Litigation Section of

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the Internal Security Division of the

Department of Justice. In June of 1972,

Goodwin received an FBI report indicating

that Plaintiffs intended to disrupt che

Republican Convention, which was to

commence later that summer. Prior to the

convention, Goodwin went to Florida (where

the convention was held) seeking indict-

ments for alleged vioiations of federal

law. |

All persons known to have participa-

ted in meetings at which the disruption

was planned were subpoenaed to appear

before the grand jury. Among those

subpoenaed were two FBI informers, Emerson

Poe and Arthur Franz.” None of,.the

plaintiffs testified before the grand

>Pranz left Florida prior to the

grand jury proceedings, and it is not

contended that he participated in the

alleged conspiracy.

-37a-

jury, and an indictment was returned on

July 13, 1972. Several months later a

superceding indictment was returned by

another grand jury when new evidence

indicated that Plaintiffs Briggs and

Michaelson were involved in the criminal

activity that was the subject of the July

13 indictment.

Prior to his trip to Florida, Goodwin

gave instructions.to the FBI that were

designed to protect Plaintiffs' Sixth

Amendment rights. He told Claude Meadow

(the FBI agent who was Poe's sole contact)

to inform Poe that he should refrain from

involving himself with the planning of any

defense strategy, and, should he overhear

such strategy being discussed, Poe was not

to relay the information to the FBI.

Meadow issued Goodwin's instructions to

Poe, and informed Goodwin that Poe would

comply with them. Goodwin had no direct

contact with Poe.

-38a-

Because Plaintiffs were hastily

subpoenaed, they were represented by

common counsel at the grand jury proceed-

ings. Many Plaintiffs met each other for

the first time as a result of those

proceedings. They were therefore con-

cerned that there might be an informer in

their midst who would be privy to defense

strategy. This fear was accentuated

because Plaintiffs were represented by

common ca.nsel and defense strategy was,

in many instances, jointly. planned.

Emerson Poe signed two documents,

both undated, authorizing VVAW's defense

attorneys to represent him in a limited

manner. The first document authorized

representation in proceedings which sought

to delay the grand jury until counsel

could be retained. VVAW's Motion for Stay

was denied on July ll, 1972. The second

document authorized representation in

matters of "affirmative action" until Poe

-39a-

could retain his own counsel. According

to Poe, he signed the first document on or

about July 8, 1972, and signed the second

document after he was dismissed by the

grand jury on July 13, 1972. There is no

evidence to the contrary.

On July 12, 1972, the District Court

for the Northern District of Florida heard

argument from Plaintiffs about their

entitlement to certain information,

including the existence vel non of any

evidence that informants of the government

were among those witnesses who were

represented by counsel at the grand jury.

The July 12th hearing was marked by

confusion as to what witnesses VVAW's

counsel were representing for grand jury

purposes. Prior to July 12, 1972, the

government had not been presented with a

list of witnesses who were so represented.

At the July 12th hearing, defense counsel

stated, after Emerson Poe's name was

-40a-

mentioned, that "... I have just been

informed that Mr. Poe, who I believe

Originally was not represented by coun-

sel..." and was then interrupted by

another defense counsel, who stated

"(j]ust for the Sixth Amendment motion

that Your Honor ruled on the other day..."

While this discussion is a bit

confused, it supports Poe's assertion that

prior to July 14th he was represented by

counsel only for the motion to stay the

grand jury proceedings. On July 13, 1972,

this colloquy occurred under oath:

The Court: Mr. Goodwin, are any of

the witnesses

represented by counsel |

agents or informants of

the United States of

America?

The Witness: No, Your Honor.

The Court: You can step down.

The Court's statement "witnesses repre-

sented by counsel" refers to witnesses

identified by defense counsel on July

-4la-

l2th. It is Defendant's negative as-

sertion to the Court's question that has

given rise to the instant litigation.

Plaintiffs contend that Defendant knew or

should have known that Emerson Poe was

represented by their counsel and therefore

knew or should have known that their Sixth

Amendment rights were being violated.

Defendant contends in his Motion for

Summary Judgment that (1) he is entitled

to absolute prosecutorial immunity, or (2)

assuming arguendo he is not so entitled,

qualified prosecutorial immunity precludes

further prosecution of this litigation.

It is clear that a prosecutor enjoys

absolute immunity when his activities are

* quasi-judicial in nature. Butz v.

Economu, 438 U.S. 478, 516 (1978); Imbler

v. Pachtman, 424 U.S. 409, 431 (1976).

When a prosecutor transcends his role as

an advocate, and instead performs

investigatory activities, his immunity

-42a-

from suit is qualified, rather than

absolute. Briggs v. Goodwin, 569 F.2d 10,

16 (D.C. Cir. 1977). In the instant case,

Plaintiffs allege that Goodwin violated

their Sixth Amendment rights by planting

an informer in their midst and perjuring

himself. To ascertain whether Defendant

is entitled to absolute or qualified

immunity, the Court must scrutinize what

type of activity he was engaging in when

he performed the facts that form the basis

of Plaintiffs' complaint.

Poe was subpoenaed in order to

preserve his role as an informer.

Goodwin's response was likewise designed

so that Poe could maintain that role.

Goodwin desired to preserve Poe's position

in order to facilitate the investigation

of the VVAW. Defendant's assertion that

he was acting in a quasi-judicial manner

within the meaning of Imbler v. Pachtman,

-43a-

supra, is therefore misplaced. Defendant

is not entitled to absolute immunity.

As the Court of Appeals noted in

Briagas v. Goodwin, Defendant is entitled

to a qualified immunity. If Goodwin shows

that “he entertained a good-faith, reason-

able belief in the truth of his response

to the federal district judge in Florida,"

id., at 16, then he is immune from liabil-

ity. The facts, as developed by discovery

and the extensive record before the Court,

establish that Goodwin in fact believed in

the veracity of his statement.

First, the deposition testimony of

Goodwin, Meadow, and others connected with

the grand jury investigation reveals that

Defendant issued strict instructions to

Poe designed to preclude Poe's participa-

tion in the common defense. Second, it is

clear from the deposition testimony that

Goodwin believed Poe was heeding those

instructions. Third, Poe believed and

-44a-

still believes that he in fact followed

Goodwin's instructions, and he therefore

did not inform Goodwin to the contrary.

Fourth, the evidence supporting Plain-

tiffs' assertion that Poe was cognizant of

some defense strategy also indicates that

Goodwin was not privy to this information

when he made his assertion to Judge

Middlebrooks. Finally, the assertions of

defense counsel on July 12th indicating

that Poe was not being represented sup-

ported Goodwin's belief that Poe was in

fact not represented by counsel. It is

clear that Goodwin did not perjure himself

on July 13, 1972.

The only remaining issue before the

Court is whether summary judgment is

appropriate in the instant action. As the

Supreme Court noted in Butz v. Economu,

supra, at 508,

{[D]amages suits concerning constitu-

tional violations need not proceed at

trial, but can be terminated

-45a-

on a properly supported motion for

summary judgment based on the defense

of*immunity... In responding to such a

motion plaintiffs may not play dog in

the manger; and firm application of the

Federal Rules of Civil Procedure will

ensure that federal officials are not

harassed by frivolous lawsuits.

Because Defendant has proved that he

entertained a good-faith, reasonable

belief in the truth of his statement, he

is entitled to summary judgment. Butz v.

Economu, supra; Briggs v. Goodwin, supra.

An appropriate Order follows this Memoran-

dum Opinion.

Aubrey E. Robinson, Jr.

United States District Judge

Date: September 19, 1980.

ORDER

Upon consideration of Defendant's

Motion for Summary Judgment, Plaintiffs'

Opposition thereto, the entire record

-46a-

therein, and the Memorandum Opinion issued

by the Court this date, it is by the Court

this 19th day of September, 1980,

ORDERED, that Defendant's Motion for

Summary Judgment, be and hereby is,

GRANTED.

Aubrey E. Robinson, Jr.

United States District Judge

-47a-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.