Respondents Brief — Burns v. Reed

BEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Authorities .......

IV.

WAS NOT INVESTIGATIVE, BUT QUASI.

JUDICIAL, IN THAT IT WAS LIMITED TO

RENDERING LEGAL ADVICE AND

APPEARING BEFORE THE COURT AS THE

GOVERNMENT'S ATTORNEY.......... ‘od

A PROSECUTOR'S FUNCTION OF RENDER.

ING LEGAL ADVICE TO POLICE OFFICERS

IS A QUASIJUDICIAL ACT ENTITLED TO

THE PROTECTION OF ABSOLUTE IMMU-

a

A PROSECUTOR'S FUNCTION OF APPEAR.

ING BEFORE A TRIAL COURT AND PRE-

SENTING EVIDENCE IN SUPPORT OF AN

APPLICATION FOR A SEARCH WARRANT

IS ENTITLED TO THE PROTECTION OF

ABSOLUTE IMMUNITY .................

THE ISSUE OF WHETHER DEPUTY PROS.

ECUTOR REED WAS ENTITLED TO THE

PROTECTION OF ABSOLUTE IMMUNITY IS

A QUESTION OF LAW WHICH MUST BE

DETERMINED BY THE COURT AND NOT

SE sasecosceses

Conclusion .......

te

y

4

16

31

TABLE OF AUTHORITIES

Cases: Pages:

Anderson v. Creighton, 43 U.S. G35 (1987)... ........ »

Benavidez v. Gunnell, T22 F.2d 615 (10th Cir. 1983).... 19

Briscoe v. LaHue, 460 U.S. 325 (1988)... . 2. 6... 17, 19

Burns v. Reed, 394 F.2d 949 (7th Cir. 1990)... ..... 12, 2, 2

Butz v. Economou, 438 U.S. 478 (1978)... ee 20

Citizen Energy Coalition of Indiana, Inc. «. Sendak, 594

P-28 00GB (ith Cin GBGED. ccccccccesscceseceseuat 19

Forrester v. White, 484 U.S. 219 (1988)... ........ 18, 19, 23

Foster v. Pearcy, 387 N.E.2d 446 (Ind. 1979) .......... 16

Gentry e. State, 471 N.E.2d 268 (ind. 1984)... .. 2... .. 14

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)... .. 13

Griffith v. Slinkard, 146 Ind. 117, 44 N_E. 1001

(Gad. GEBED. .. oc cccccccescccescasnenenennenen passim

Harlow v. Fitzgerald, 457 U.S. 300 (19R2). ....... 14, 18, 29

Henderson v. Lopez, 79) F.2d 44 (7th Cir, 1986)... ..... 19

Imbler ec. Pachtman, 424 U.S. 409 (1976)... ....... passim

Malley «. Briggs, 475 U.S. 335 (1988) ... 2... ee ee 17

Mars v. Gambinner, 855 F.2d 733 (Lith Cir, 1SRR)...... he)

Mitchell e. Forsyth, 472 U.S. 511 (1985) .... 2... 6... 2

Mother Goose Nursery Schools, lnc. « Sendak, T70 F.2d

GED (Rah Cin, SEED . oc cc ccccceccesueeunneneneaee 19

Myers «. Morris, 810 F_2d 1437 (Sth Cir, T987)......... 19

National Collegiate Athletic Association v. Board of

Regents of the University of Oklahoma, 468 U.S. 85

teste nese ehedescuvcdececcocccces 13

Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) ....... 29

Rogers v. Lodge, 458 U.S. 613 (1982) ..... “Pe 13

Scheuer v. Rhodes, 416 U.S. 232 (1974)... ............ 18

Stump v. Sparkman, 435 U.S. 349 (1978) ...........-. 1X

Tower v. Glover, 467 U.S. 914 (1984)... ..........6005. 17

Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir. 1987). 19

Rules:

Federal Rule of Civil Procedure 52(a)................. 12

Statutes:

ens crcseebetcesececececcoss 6, 26

ED < coccccccccccescsccccccccese 15

No. 89-1715

In THe

Supreme Court of the United States

October Term, 1990

Catuy Burns,

Petitioner,

vs.

Rick REED,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENT

The Respondent, Deputy Prosecuting Attorney Rick Reed

(hereinafter Reed), respectfully prays that the Court affirm the

judgment of the United States Court of Appeals for the Sev-

enth Circuit (hereinafter Seventh Circuit), which affirmed the

judgment of the United States District Court for the Southern

District of Indiana, Indianapolis Division (hereinafter District

Court).

STATEMENT OF THE CASE

The question presented herein is purely legal. Both the

District Court and the Seventh Circuit found that the only

actions taken by Reed were to provide legal advice to police

officers and to present the state's case to a state court judge

during a hearing on an application for a search warrant. The

only issue raised is whether such conduct is protected by the

doctrine of absolute immunity.

On September 2, 1982, the Petitioner, Cathy Burns (here-

inafter Burns), reported to police officers that an unknown

person had entered her home, shot her sons and attacked her

with a blunt instrument (Transcript157-158). Muncie Police

Officers Cox and Scroggins conducted the investigation of this

crime (T.22).

After a period of time, the police officers formed the opinion

that Burns was the prime suspect in the shooting (T. 75). Even

though the police were informed that Burns had failed a poly-

graph examination and a voice stress test, they lacked probable

cause to arrest her (T. 75). On September 21, 1982, Burns was

interrogated and verbally threatened by police officers (T.66,

164-167). Cox and Scroggins then decided to place Burns under

hypnosis. Up to this point, Reed had no contact with or involve-

ment in the police investigation (T.65-66, 111).

Reed's first involvement was on the afternoon of September

21, 1982 when Officer Scroggins made a telephone call to Reed

(T.66). Officer Cox explained the reason for the phone call as

follows:

Q. And what was the conversation that you heard even

though it was one-sided?

A. The extent of the conversation was that we were at the

time contemplating a hypnosis session with Cathy and

that we wanted him to give us his opinion on whether

or not we should do that. At that particular time, |

think Mr. Reed was also a police liaison attorney as far

as the police department was concerned. I can't say

the exact words, but I| indicated to Don to explain to

him that we were aware of the fact that hypnosis of

suspects may not be admissible as far as criminal

were concerned; and we did advise him

that she had indicated to us she wanted to do that and

we wanted to know from him whether or not he felt we

should proceed.

*> * *

Q. What is your recollection about being told by Mr.

Scroggins of Mr. Reed’s response?

A. Mr. Scroggins indicated to me that Mr. Reed indicated

to us if we had no other avenue to explore, we might as

well do that.

(T.101-102.)

Officer Scroggins testified as to the reason for the phone call

as follows:

A. I said that Cox and I had determined that we felt like

she was the only one that could provide us additional

information of the investigation and that we wanted to

hypnotize her; but Cox had advised me that her being

a possible suspect, that in his training, he was told

that you do not hypnotize suspects.

+

* *

Q. What did you teli Mr. Reed about Cathy Sells status as

a suspect?

A. The conversation with Reed was brief. It was mostly

just to advise him of the point we were at in the

investigation and the request from him for permission

to hypnotize her.

Q. What was Mr. Reed's response?

A. He said for us to go ahead.

(T.37, 67.)

Reed did not recall the telephone conversation in question,

nor does he dispute the police officer's testimony concerning

the telephone conversation (T.125, 127). It is undisputed that

Reed was not informed of any of the details of the case, such as:

that Burns had failed a polygraph and voice stress test, how

long she had been at the police station, that she had become il!

while at the police station, that police officers had threatened

her, or that she had been deprived of lunch (T.66-67).

Other than advising the police officers to proceed with the

hypnotic session, there is no evidence to indicate that Reed was

involved with the hypnotic session or the investigation leading

up to the session. Reed in no way instructed the officers on how

to proceed with the hypnotic session (T.113). Shortly after the

hypnotic session, Officers Scroggins and Campbell arrested

Burns (T.67-69, 72, 114).

Either during the hypnotic session or shortly thereafter,

Reed received a phone call requesting that he come to the

police station to give some advice on the Burns case (T. 125-126).

Reed recalled the reason for his attendance at the police station

as follows:

Generally, I arrived at the detective headquarters. The

only person I recall speaking to was Dr. Ken Joy. When |

arrived, he was already there. But he began to tell me

about what was going on. | didn’t recall speaking to

Officer Cox or Scroggins or any of the other officers.

I do recall seeing them there. I asked Dr. Joy what was

going on. He proceeded to tell me about this hypnosis

session that he had either witnessed or viewed a tape of. |

asked him some questions about it; in response to which

he told me that what he had seen gave him cold chills; that

he thought it was quite possible we had a real case of split

personality and this was a person who needed to be in the

hospital and not in jail.

Somebody — | think it was Dr. Joy — asked me if that was

possible if she could go to the hospital instead of jail. I gave

my opinion that could be done.

(T.130-131.)

Officer Cox described the reason for Reed's presence at the

police station and the advice given as follows:

Q. Did Mr. Reed participate in the decision to arrest

Cathy at that time based upon the information you had

supposedly obtained from her under hypnosis’

A. The extent of his participation was my ex™/aining to

him what we had developed as a result of the hypnotic

session and asking if he felt like we had probable cause

to make that arrest. It was decided during the discus-

sion, of course, to — that she would not be kept in the

Delaware County Jail; that she would be taken to Bal!

Memorial Hospital. And, in fact, in order for us to take

her to the hospital and have her committed to the

psychiatric floor for examination we had to have an

official police hold put on her which was the arrest.

Q. When you asked Mr. Reed of his opinion about proba-

ble cause, what was his response?

A. Mr. Reed indicated that we probably had probable

cause for the arrest.

(T. 107-108; see also, T.115.)

Officer Scroggins described Burns’ arrest and Reed's

involvement in the arrest as follows:

A. I told her we were going to arrest her at that point.

Q. Prior to that time though, excluding the telephone

conversation with Mr. Reed, did you discuss with Mr

Reed the decision to arrest Cathy Sells [ Burns!”

A. No. That's not the policy. We arrest people. The police

department arrests people. And the prosecutor's

office is the one that actually files the formal charge.

Q. Isit a practice — my next question is is it a practice for

you to consult with the prosecutor's department or

office before you arrest an individual?

A. No.

Q. And you did not do so in this case?

A. No.

Q. Did you and Mr. Reed and anyone else you can think of

engage in a discussion about whether or not to arrest

Cathy?

A. I was in the room. And Marvin Campbell had come in

the room. And they were the ones that actually

arrested Cathy and advised her that she was being

placed under arrest.

Q. So the decision to arrest, if it took place, you don't

recall whether Mr. Reed was part of that or you didn't

hear him being part of that’

A. No, I didn’t hear. The only involvement that I can

recall Mr. Reed being involved in was after we had

filled out the arrest sheet on Cathy. Then we went into

the hallway. And Mr. Reed and Dr. Joy, Captain Cox,

and Deputy Chief Bodkin was there. And the decision

en eee

rather than take her to jail. .

(T.69, 38-39.)

appeared before the trial court and obtained a search warrant

for the search of Burns’ residences. In Indiana, a prosecutor's

presence is not necessary for a police officer to obtain a search

warrant. Ind. Code §33-35-5-1 ef. seq. However, the state court

trial judge testified before the District Court that, in her court,

the presence of a prosecutor was necessary and that it would

not be possible for a police officer to obtain a search warrant on

his own (T. 5).

The trial judge was not informed of the fact that Burns’ on!

confession, which formed the probable cause for the warrant,

was obtained through the use of a hypnotic session. Burns

made no other confession. In explaining the omission of this

fact from the evidence, Reed stated:

My testimony is that when I was questioning Lieutenant

in front of Judge Cole, | was under the assump-

tion that he had interviewed her and gotten a confession

rein tkandassdettadanemin,

knew about that. I had been there the evening.

(T. 136.)

Reed testified that he was under the impression that Burns had

confessed in an interview other than the hypnotic session. He

vidual, thought tc be Michael Alexander (T. 134-140, 147-148).

Other then his in court participation in obtaining the search

warrant, Reed had no other involvement in the search (T. 121).

There was no evidence in the District Court that Reed either

participated in a decision or instructed the police officers in

question to conceal the fact that the confession was obtained

from a hypnotic session. Officer Scroggins, who testified at the

search warrant hearing, testified in the District Court that he

had no prior discussion with Reed concerning his testimony

and was never instructed by Reed not to talk about hypnosis

(T.50-51; see also T. 46, 48, 137). None of the witnesses indicated

that there was an attempt to conceal the fact that the confes-

sion was obtained pursuant to a hypnotic session (1.109, 12%).

Fight days later, an information was filed thereby initiating a

prosecution against Burns and an arrest warrant was obtained

(T. 11-12). It is undisputed that the affidavit of probable cause

which supported the issuance of the arrest warrant made no

reference to the fact that Burns’ confession was obtained pur-

suant to hypnosis.

There is absolutely no evidence in the record that Reed made

any statements to the press. In fact, the contrary is true (T.51,

110, 130, 147).

After a week of trial and at the conclusion of Burns case, the

District Court granted Reed's motion for a direeted verdict.

The District Court found that the evidence established that

Reed's only involvement in the case was to render legal advice

to police officers, to represent the government in a state court

proceeding concerning an application for a search warrant, and

to initiate a criminal prosecution. Pursuant to this evidence,

the District Court held that Reed was entitled to absolute

immunity for his activities. (Petition Appendix, page la.) The

Seventh Circuit affirmed the District Court's decision. (Peti-

tion Appendix, page la.)

SUMMARY OF THE ARGUMENT

A prosecutor's function of rendering legal advice to police

officers and appearing before a trial court to seek a search

warrant are quasi-judicial functions which must be protected

by absolute immunity from civil liability.

Both the District Court and the Seventh Circuit found that

the only functions Reed performed were to render legal advice

to police officers and to appear before a state trial court as the

government’ attorney to elicit testimony in support of an

application for a search warrant. These factual determinations

are not subject to review by this Court.

The function of rendering legal advice to police officers is a

quasi-judicial function which must be protected by absolute

immunity to free the judicial process from harassment or

intimidation and to accomplish the desired objective of the

stricter and fairer enforcement of the laws. Public policy man-

daves that the police be able to obtain legal advice concerning

investigative techniques they are about to perform so they will

not be in a position where they must make their best guess as to

what a suspect’ rights are. The prosecutor, as the govern-

ment's attorney, is trained to give legal advice to police officers

and he must be able to do so to properly fulfill the duties of his

office. The denial of absolute immunity would discourage, if not

prevent, communication bet ween police officers and the pros.

ecutor, thereby hampering the stricter and fairer enforcement

of the laws, one of the central goals of the criminal justice

system.

The function of appearing before the trial court as the gov-

ernment’s attorney and eliciting testimony in support of an

application for a search warrant is also a quasi-judicial function

deserving the protections of absolute immunity. It is preferable

that the government's attorney be involved in this process, as

he can evaluate the evidence and determine whether probable

cause exists for the issuance of the search warrant and then

assist the detached magistrate in the probable cause deter-

mination. Such a function is a vital part of the judicial process

which must be protected by absolute immunity. If absolute

in such proceedings, to the detriment of the criminal justice

system.

This Court has determined that the question of whether

immunity applies is a question of law to be decided by the

District Court. in this case, there were no facts in dispute

which would establish that Reed engaged in any investigative

function and therefore the District Court properly determined

that Reed was entitled to the protections of absolute immunity.

Since there were no disputed facts, the jury properly played no

role in the determination of the immunity question.

DEPUTY PROSECUTOR REED'S CONDUCT WAS NOT

INVESTIGATIVE, BUT QUASLJUDICIAL, IN THAT IT

WAS LIMITED TO RENDERING LEGAL ADVICE AND

APPEARING BEFORE THE COURT AS THE

GOVERNMENT'S ATTORNEY

In /mbler v. Pachtman, 424 U.S. 409, 431 (1976), this Court

held “that in initiating a prosecution and in presenting a State's

case, the prosecution is [absolutely] immune from a civil suit

for damages under [42 U.S.C.| § 1983." The Court recognized

that not all activities of a prosecutor would be protected by the

grant of absolute immunity. If a prosecutor engages in investi

gative activities, he is entitled to a qualified immunity or a

“good faith defense comparable to the policeman.” /d_, at 430.

However, activities of a prosecutor which are an “integral part

of the judicial process” are to be afforded the protection of

absolute immunity. /d.

Reed does not dispute the foregoing legal conclusions nor

does he attempt to argue that investigative activities should be

which the defendant was charged with violating the con-

stitutional rights of the plaintiff. One was that he autho-

rized this Another was that he participated in

the arrest Me peng Bey my Fae pe

warrant without cause and that he or

slandered the after she was released by making

v. Pachtman, the Supreme Court case.

The question is whether he is operating in a quasi-

judicial role. The Henderson case, which is a Seventh

Circuit interpretation of Imbler v. Pachtman to some

extent at least, even though it doesn't mention it, sets up

certain criteria for determining whether or not the pros-

pom Spree fhm tel serpent ap And it

a ading nacmtaehad ek advice, is operating

or acting in a quasi- role

Now, the in this case about the Defendant

meal & teh Ge oe dee On ee

officer, - that called Reed on the

phone at his his home is immaterial. But

anyway, they called him on the phone and asked if it would

be proper or permissible to hypnotize the plaintiff. And he

said yes.

I don't think there is any jon that is giving legal

advice. He didn’t initiate it. He didn’t suggest it. Accord-

ing to his testimony, which is the only ive testimony

on the subject, he was home yard or some-

thing. At least he was home when the call came. So he was

giving legal advice

was probable cause for the arrest of the plaintiff, to which

Finally as to getting the search warrant, you can char.

acterize the proceeding before the judge as test: by

Mr. Reed And if he asked leading questions — and | thi

he did — why, of course, you can say that. But the fact is

that it was a proceeding in court before a judge. No matter

dence. Even though it was and didn't go far

enough, he did it as a part of his duties.

participated im the investigation. officers testified

that they called Reed at has home to seek his advice about

the propinety of their intentions te hypnotize and question

the appellant. Officer Cox testified that they called Reed

‘because he was the police liaisen for the Prosecutor's

affice. Both officers emphasized that they were seeking

Reeds legal oprmon about their proposed course of action.

Rased on the foregoing testimony, it is apparent that Reed

was rendering legal advice to the officers and should be

immune from suit, even if he did render unsound advice.

Rueres Reed, 54 F.2d S49. 956 (7th Cir 1990) Petition

Appendix, page Dia.

Nevertheless, Burns perusts im her unsupperted angument

that Reed directed the invest gation, was ot herwise invelved in

the investigation. and acted as a police officer. In effect, Burns

asks this Court to rewegh the evidence and come te a conclu-

son contrary te that af the two lower courts.

Federal Rule of Civil Procedure 21a) enjoins appellate

courts from weighing facts unless the determinations of the

lower courts were clearly erroneous. Traditionally, this Court

13

has accorded great weight to a finding of fact which has been

made by a district court and approved by a court of appeals.

National Collegiate Athletic Association v. Board of Regents of

the University of Oklahoma, 468 U.S. 85, 98 n. 15 (1984), citing

Rogers v. Lodge, 458 U.S. 613, 623 (1982). As this Court stated

in Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987):

The Court of Appeals did not set aside any « “the District

Court's findings of fact that are relevant to this case. That

is the way the case comes to us, and both courts below

having agreed on the facts, we are not inclined to examine

the record for ourselves absent some extraordinary rea-

son for undertaking this task. Nothing the Unions have

submitted indicates that we should do so. “A court of law,

such as this Court is, rather than a court for correction of

errors in fact finding, cannot undertake to review concur-

rent findings of fact by two courts below in the absence of a

very obvious and exceptional showing of error.” Graver

Mfg. Co. v. Linde Co. , 336 U.S. 271 (1978). See also United

States v. Ceccolini, 435 U.S. 268, 273 (1978). Unless there

are two 6r more errors of law inhering in the judgment

below, as the Unions claim there are, we should affirm it.

Therefore, the question before this Court is not whether

Reed engaged in investigative functions, but whether Reed's

activities of rendering legal advice and appearing before a state

trial court are quasi-judicial functions protected by absolute

immunity. Reed’s conduct can be broken down into four basic

components.

First, Reea advised the police officers that they could hypno-

tize Burns. Burns claims that such advice violated her constitu-

tional rights, yet she has not cited to this Court, or any of the

lower courts, one case holding that a voluntary hypnosis vio-

lates a suspect's constitutional rights. Obviously, police con-

duct in obtaining consent to or in conducting the hypnosis may

violate constitutional rights, but Reed had no involvement in or

knowledge of these events. Since there was no clearly estab-

lished law at the time of the events herein, and there presently

is no clearly established law, which holds that Burns’ constitu-

14

tional rights were violated due to the mere fact that she was

hypnotized, the doctrine of qualified immunity as announced in

Harlow v. Fitzgerald, 457 U.S. 800 (1982), would have pro-

tected Reed absent the District Court's finding of absolute

immunity.

Second, Reed advised the police officers that there was

probable cause to arrest Burns on the basis of the hypnotic

testimony. Once again, Burns has failed to establish that an

arrest on the basis of hypnotic testimony cannot form the basis

for probable cause to arrest an individual and is therefore

unconstitutional. Subsequent to Burns’ arrest, the Indiana

Supreme Court ruled that evidence obtained through the use of

hypnosis can be used to establish probable cause for the arrest

of an individual. Gentry v. State, 471 N.E.2d 263 (Ind. 1984).

Thus, Burns seeks to recover for Reed's act of giving what

turned out to be correct legal advice. In any event, the doctrine

of qualified immunity would have protected Reed absent the

District Court's finding of absolute immunity.

Third, Reed presented evidence before a state court judge

and obtained a search warrant. It is undisputed that the evi-

dence submitted failed to indicate that the only confession in

the case was the result of hypnosis. The parties disagree as to

whether the failure to inform the court that the confession was

a result of hypnosis was a mistake or an intentional act, but this

distinction is irrelevant if Reed's function of appearing before a

trial court is afforded absolute immunity. This Court lias recog-

nized that absolute immunity must be afforded to prosecutors

irrespective of their intent.

We conclude that the considerations outlined above dic-

tate the same absolute immunity under §1983 that the

prosecutor enjoys at commen law. To be sure, this immu-

nity does leave the genuine.y wronged defendant without

civil redress against a prosecutor whose malicious or dis-

honest action deprives him of liberty. But the alternative

of qualifying a prosecutor's immunity would deserve the

broader public interest. It would prevent the vigorous and

15

fearless performance of the prosecutor's duty that is

essential to the proper functioning of the criminal justice

system.

Imbler v. Pachtman, 424 U.S.409, 425-426 (1976), citing

Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001, 1002 (Ind. 1896).

The Court specifically held that absolute immunity would apply

to allegations that a prosecutor willfully suppressed

exculpatory information. /d., at 411 n. 34. Thus, the Court is

not confronted with a question of fact as to Reed’s motives but

rather the Court is presented with the strictly legal question of

whether absolute immunity protects the function of a pros-

ecutor appearing before a trial court as the government's

attorney and presenting evidence in support of an application

for a search warrant. This question will be argued in Part III,

infra.

Burns also disputes that any activity on Reed’s part in

obtaining the arrest warrant is protected by the doctrine of

absolute immunity. To the extent that this issue has been

raised, it must be noted that in Indiana an arrest warrant can

only be obtained either after an indictment from a grand jury

has been obtained, or after the prosecuting attorney has filed

an information. Ind. Code §35-33-2-l(c). Therefore, any such

conduct on Reed's part would surely be within /mdler’s grant of

absolute immunity since it is conduct occurring after the initia-

tion of the prosecution and is part of the presentation of the

state’s case.

Fourth, Burns argues that Reed made statements to the

press which allegedly violated Burns’ constitutional rights.

Burns has failed to refer this Court or the courts below to any

evidence in the record which would indicate that Reed made

such comments to the press. The District Court expressly

found that there was no evidence of comments to the press.

(Petition Appendix, page la.)

16

A PROSECUTOR'S FUNCTION OF RENDERING

LEGAL ADVICE TO POLICE OFFICERS IS A QUASI-

JUDICIAL ACT ENTITLED TO THE PROTECTION OF

ABSOLUTE IMMUNITY

In Indiana, a prosecuting attorney is a judicial officer whose

position is created by the Indiana Constitution. As such, com-

mon law mandated that he be entitled to absolute immunity for

his conduct. The Indiana Supreme Court has described the role

of the prosecutor and the immunity to which he is entitled as

follows:

He (a prosecuting attorney) is a judicial officer, created by

the constitution of the state. . . . He is the law officer to

whom is entrusted all prosecutions for felonies and misde-

meanors.. . . He is the legal advisor to the grand jury. We

think he is an officer entrusted with the administration of

justice. The prosecuting attorney, therefore, is a judicial

officer, but in the sense of a judge of a court. The rule

applicable to such an officer is thus stated by the eminent

author: “Whenever duties of a judicial nature are imposed

upon a public officer, the due execution of which depends

upon his own judgment, he is exempt from all responsibil-

ity by action for the motives which influence him and the

manner in which said duties are performed. If corrupt, he

may be impeached or indicted; but he cannot be pros-

ecuted by an individual to obtain redress for the wrong

which may have been done. No public officer is responsible

in a civil suit for a judicial determination, however mali-

cious the motive which produced it.” Townsh. Sland. & L.

(3d Ed.) § 227, pp. 395,396.

Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001, 1002 (Ind. 1896).

The Indiana Supreme Court more recently concluded that

common law provided prosecutors with immunity for all

activities within the general scope of the authority given to

prosecuting attorneys, including their duty to make state-

ments to the press and inform the public of the activities of

their office. Foster v. Pearcy, 387 N.E.2d 446, 449 (Ind. 1979).

17

Of course, 42 U.S.C. $1983 does not facially establish any

immunities. However, this Court has consistently read the

statute “in harmony with general principles of tort immunities

and defenses rather than in derogation of them.” Jmbler v.

Pachtman, 424 U.S. 409, 418 (1976). In Tower v. Glover, 467

U.S. 914 (1984), this Court held that if an official can point to a

common law counterpart for the immunity that he asserts,

then he is entitled to immunity against a §1983 action unless the

history and purposes of §1983 counsel against the provision of

immunity. /d., at 920. Unlike the police officers in Malley v.

Briggs, 475 U.S. 335 (1986), Reed can point to the immunity

available at common law and argue that it should apply to the

quasi-judicial acts he performed herein.

This Court interpreted $1983 to give absolute immunity to

functions “intimately associated with the judicial phase of the

criminal process.” Jmbler v. Pachtman, 424 U.S. 409, 430

(1976). As this Court explained in Briscoe v. LaHue, 460 U.S.

325, 334-335 (1983), the immunity is not given to protect indi-

viduals who perform functions nor to shield individuals from

liability, but because any lesser degree of immunity for the

function itself could impair the judiciz] process. Therefore, it is

the function that the individual is performing, not the fact that

an individual holds a particular office or position, which results

in the granting or denial of absolute immunity. This approach

was recently explained as follows:

Running through our cases, with fair consistency, is a

“functional” approach to immunity questions other than

those that have been decided by express constitutional or

statutory enactment. Under that approach, we examine

the nature of the functions with which a particular official

or class of officials has been lawfully entrusted, and we

seek to evaluate the effect that exposure to liability would

likely have on the appropriate exercise of those functions.

Officials who seek exemption from personal liability have

the burden of showing that such an exemption is justified

by overriding considerations of public policy, and the

Court has recognized a category of “qualified immunity”

that avoids unnecessarily extending the scope of the tradi-

tional concept of absolute immunity.

Forrester v. White, 484 U.S. 219, 224 (1988), citing Scheuer v.

Rhodes, 416 U.S. 232 (1974); Butz v. Economou, 438 U.S. 478

(1978); Harlow v. Fitzgerald, 457 U.S, 800 (1982); Stump v.

Sparkman, 435 U.S. 349 (1978).

viduals other than the judges or prosecutors may be entitled to

perform. For example, this Court explained:

In the years since Bradley was decided, this Court has

not been quick to find that federal legislation was meant to

diminish the traditional common law protections

extended to the judicial process. See, e.g., Pierson v. Ray,

386 U.S. 547 (1967). On the contrary, these protections

have been held to extend to executive branch officials who

perform quasi-judicial functions, see Butz v. Economou,

supra, 438 U.S., at 513-514, ert s -

or Satine nels Pachtman, 424

S. 409, 43071976). law's rational for these

the judicial process of harassment or

sorieidanion hae thought to require absolute immu-

ity even for advocates or witnesses. See Briscoe v.

ue, 460 U.S. 325 (1983); Butz v. Economou, supra,

438 U.S., at 512.

Forrester v. White, 484 U.S. 219, 225-226 (1988).

Therefore, prosecutorial immunity protects not only the spe-

cific activities presented in / mbler, but also extends to all other

functions which are quasi-judicial in nature. Such quasi-judi-

cial functions must be afforded absolute immunity in order to

free the judicial process from harassment or intimidation.

The prosecutor's conduct in this case amounted to nothing

more than rendering a legal opinion that it would be permissi-

ble to hypnotize Burns. The Seventh Circuit found that the

function of rendering a legal opinion to police officers was

similar to the everyday work of lawyers and judges and was

therefore quasi-judicial. Burns v. Reed, 894 F.2d 949, 954 (7th

Cir. 1990), citing Henderson v. Lopez, 790 F.2d 44 (7th Cir

1986); Mother Goose Nursery Schools, Inc. v. Sendak, 770 F 2d

668, 671 (7th Cir. 1985), cert. denied, 474 U.S. 1102 (1988)

Citizen Energy Coalition of Indiana, Inc. v. Sendak, 594 F 2d

1158 (7th Cir. 1979), cert. denied, 444 U.S. 842 (1980), In render-

ing legal advice, the prosecutor performs a function similar to

that of a judge. Both a prosecutor and a judge review the fact~

of a given case, then render an opinion concerning legality

Henderson v. Lopez, 790 F_2d 44, 46 (7th Cir. 1986).

Reed's advice that probable cause existed for Burns arrest

amounted to even more than a quasi-judicial legal opumen in

assessing probable cause, the prosecutor is also making a deci.

sion concerning the initiation of the state's case. The decision

that probable cause exists for an arrest is part and parce! of the

larger process of initiating a prosecution and therefore is

_ entitled to immunity pursuant to /mbler. Marr vo Gumbin ner.

855 F.2d 783, 790(Lith Cir. 1988); Myers v. Morris, 810 F_2d 1437

(8th Cir 1987). See also, Jmbler v. Packtman, 424 U.S. 409, 425

n. 20 (1976). It must be noted that this rationale has not been

accepted by all of the circuit court of appeals. Compare, Wolt

enbarger v. Williams, 826 F.2d 930 (10th Cir. 1987); Benarides

v Gunnell, T22 F.2d 615 (10th Cir. 1983)

However, the determination that Reed's conduct was a quasi-

judicial function does not end the analysis. The immunity

should only attach to the quasi-judicial act if the immunity is

necessary to free “the judicial process from harassment or

intimidation.” Forrester oo White, 484 U.S. 219, 226 (1988) This

concern was recognized in /mbler as follows:

The common-law immunity of a prosecutor is based upon

the same considerations that underlie the common-law

immunities of judges and grad jurors acting within the

scope of their duties. These include concern that harass.

ment by unfounded litigation would cause a deflection of

the prosecutor's energies from his public duties, and the

20

possibility that he would shade his decisions instead of

exercising the independence of judgment required by his

public trust. One court expressed both considerations as

follows:

“The office of public prosecutor is one which must be

administered with courage and independence. Yet how

can this be if the prosecutor is made subject to suit by

those whom he accuses and fails to convict? To allow this

would open the way for unlimited harassment and embar-

rassment of the most conscientious officials by those who

would profit thereby. There would be involved in every

case the possible consequences of a failure to obtain a

conviction. There would always be a question of possible

civil action in case the prosecutor saw fit to move for

dismissal of the case . . . The apprehension of such conse-

quences would tend toward weakening the fearless and

impartial policy which should characterize the admin-

istration of this office. The work of the prosecutor would

thus be impeded, and we would have moved away from the

desired objective of stricter and fairer enforcement.” Pea-

rson v Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597

(1935).

Imbler v. Pachtman, 424 U.S. 409, 423-424 (1976).

The Seventh Circuit approached this concern by citing the

three factors listed in Butz v. Economou, 438 U.S. 478 (1978) to

determine whether absolute immunity should apply.

First, we examine the historical or common-law basis for

the immunity in question. Second, we examine whether

the function which tne official performs subjects him to

the same obvious risks of entanglement in vexatious liti-

gation as is characteristic of the judicial process. With this

second factor we consider the possibility that losers will

bring suit against the decision-makers in an effort to

retaliate the underlying conflict and charg{e]} the partici-

pants in the first with unconstitutional animus. And third,

we consider whether the official is subject to checks upon

abuses of authority, such as correction of error on appeal.

Burns v. Reed, 894 F.2d 949, 954 n. 4 (7th Cir. 1990).

21

The application of aii of these tests mandates the conclusion

that the function of giving legal advice to police officers is a

function deserving of absolute immunity. The immunity of a

prosecutor was recognized at common law. Secondly, the

immunity will free the judicial process of harassment or intim-

idation, will avoid numerous lawsuits against prosecutors and

will accomplish the objective of stricter and fairer enforcement

of the laws.

The unfettered ability of prosecuting attorneys, city attor-

neys, county attorneys and state attorneys general to freely

advise police officers is of paramount public concern. Such an

ability provides police officers with guidance on what conduct is

permissible in a given case, thereby making the legal system

fairer. If a police officer is unable to ask for legal advice, he may

well unknowingly violate a citizen's constitutional rights. In the

instant case, had there been a prohibition against hypnotizing

Burns, the police officers could have avoided the violation by

asking for such advice. Furthermore, it would be quite impossi-

ble for a prosecutor to effectively perform the duties of his

office without being able to contact the police and advise police

officers on legal matters. The failure of police officers to follow

the law can and will jeopardize any prosecution. A prosecutor

must, therefore, render legal advice to assure effective pros-

ecution of criminals; such conduct should be encouraged. To

subject a prosecutor to §1983 liability without the cloak of

immunity for the rendering of legal advice would surely dimin-

ish the effectiveness of a prosecutor and the overall fairness and

quality of the judicial system.

The fear of vexatious litigation could, and in fact would,

discourage prosecutors from rendering any legal advice to

police officers; that in turn could seriously hamper the state's

ability to effectively prosecute criminals. Furthermore, the

absence of immunity would affect every criminal prosecution.

Even a visit to a police station by a prosecutor could be con-

strued as an investigative act by the prosecutor. Even if the

prosecutor simply renders legal advice, will criminal defense

22

attorneys respond by filing civil litigation in response to the

indictment or information? Will releases from civil litigation

routinely become part of the plea bargaining process or part of

the stipulation of dismissal for the criminal charge? To deny

absolute immunity for the act of rendering legal advice simply

opens the prosecutor and the criminal process to unlimited

challenges from criminal defendants. That is exactly what has —

happened in this case. Reed had a telephone conversation and

visited the police station during which time he rendered legal

advice. As a result, Burns argues that Reed’s right to absolute

immunity should be forfeited. If a telephone call from a police

officer or a simple visit to a police station for the sole purpose of

rendering legal advice can result in the loss of absolute immu-

nity, can we ever expect a prosecutor to visit the police station

for any purpose? Can we realistically expect a prosecutor to

have any contact with the police concerning a case prior to the

obtaining of a indictment or the filing of an information? The

fair and effective prosecution of criminals mandates coopera-

tion between law enforcement officers and government attor-

neys. Adoption of the position advocated by Burns herein and

the denial of absolute immunity for the rendering of legal

advice will destroy all cooperation between the police and

prosecutors and thereby hamper the criminal justice system.

Qualified immunity is appropriate when the prosecutor acts

and functions as a police officer. However, absolute immunity is

required when a prosecutor acts as the government's attorney

and renders a legal opinion to police officers.

The Seventh Circuit accurately described the consequences

of the denial of absolute immunity for the prosecutor's function

of rendering legal advice as follows:

We have little doubt that a prosecutor's risk of becoming

entangled in litigation based on his or her role as a legal

advisor to police officer is as likely as the risks associated

with initiating and prosecuting a case. As the present case

illustrates, police officers do turn to a prosecutor when

they are uncertain about the legality of a possible investi-

gative technique. And this is as it should be. We do not

eS

23

hesitate to recognize that the decision at hand should be

guided, in part, by sound policy considerations. With that

in mind, it is entirely likely that if prosecutors were

granted only qualified immunity from suits for conduct

relating to their role as the officers’ legal advisors, the end

result would be to di prosecutors from fulfilling

this vital obligation. Police officers, in turn, would be left

to take their best guess as to what a suspect's rights are.

On balance, one of the central goals of the criminal justice

system would be dramatically undercut. Police officers

will be less well-informed about both their ability to

employ certain investigative techniques, and the pos-

sibility that their proposed conduct will violate the rights

of their suspects.

Burns v. Reed, 894 F.2d 949, 955-956 (7th Cir. 1990).

Reed also has the burden of establishing that absolute, and

not qualified immunity, is “justified by overriding considera-

tions of public policy.” Forrester v. White, 484 U.S. 219, 224

(1988). In this case, as explained supra, Reed would have been

protected by the doctrine of qualified immunity for his advice

that it was proper to use hypnotic testimony as a basis for the

probable cause determination. However, if it is assumed that

the law was then clearly established that hypnotic testimony

could not be used to support a probable cause determination,

the doctrine of qualified immunity would have afforded Reed no

protection irrespective of any other aspect of the case.

Qualified immunity would not protect a prosecutor if he ren-

ders a legal opinion on the basis of erroneous information

obtained from police officers or, as in the instant case, when the

prosecutor was acting under the mistaken impression that a

confession other then the hypnotic confession was obtained.

Qualified immunity would not protect the prosecutor from

simple acts of negligence in the rendering of legal advice.

Qualified immunity only protects a prosecutor when the law

is not clearly established and the prosecutor proceeds to ren-

der an opinion on what the law should be. Such an inadequate

24

protection for the function of rendering legal advice violates

the reasoning of this Court in /mbler. Qualified immunity would

not protect a prosecutor from unfounded litigation which wouid

cause a deflection of the prosecutor's energies from his public

duties. /mbler v. Pachtman, 424 U.S. 409, 423 (1976). In fact,

the provision of qualified immunity would generate more law-

suits. If it can be assumed that in most situations a prosecutor

will render proper legal advice, advice in accordance with

currently established law, a prosecutor can be sued in every

instance when he acted properly, and qualified immunity will

not terminate the lawsuit at the outset. A prosecutor will have

to proceed with the litigation and establish that his advice was

proper under the facts of the given case or that the advice was

based upon erronous information received from police officers.

Denial of absolute immunity will leave the prosecutor, who

rendered proper legal advice, without any immunity protec-

tions. Under such circumstances, the public cannot expect the

office of the prosecutor to be administered with courage and

independence, /d., at 423, because a prosecutor could be sued

any time he renders legal advice; only the prosecutor who

renders an opinion on a matter where the law was not clearly

established would be entitled to the protection of qualified

immunity. Absolute immunity is the only protection which will

adequately protect a prosecutor when he fulfills this important

function and is the only protection which encourages and fos-

ters the spirit of cooperation that the public deserves between

the government's attorney and police agencies.

An Indiana prosecuting attorney, a constitutional judicial

officer in the same sense as a judge, entrusted with the admin-

istration of justice, Griffith v. Slinkard, 146 Ind. 117, 44 N.E.

1001, 1002 (Ind. 1896), should be afforded absolute immunity for

those functions necessary to the proper operation of the pros-

ecutor’s office. A prosecutor must fulfill his or her obligation as

the government's attorney in criminal proceedings. Reed main-

tains that the function of providing legal advice to police

officers is a quasi-judicial act which deserves the protections of

absolute immunity. Contrary to Burns’ assertions, such con-

25

duct is not comparable to that of a police officer, for it is hard to

imagine how a police officer without a law degree would gener-

ally be competent to render a complex legal opinion. The pros-

ecutor, the government's attorney, is the individual who

men and women are charged with the responsibility of repre-

senting the state, assuring the proper conviction of the guilty

and the exoneration of the innocent. To fulfill this duty, it is

entirely proper and necessary that prosecutors render legal

advice so as to insure stricter and fairer enforcement of the law.

Fhe government's attorney does not perform functions com-

parable to that of a police officer, unless he actually becomes

involved in the investigation. For example, in this case, if Reed

had been involved in the actual hypnosis of Burns, that would

be investigative. If such conduct on Reed's part had been

established, then, and only then, would Reed have forfeited his

entitlement to absolute immunity. But as long as the pros-

ecutor'’s function is limited to the rendering of legal advice, a

quasi-judicial act, public policy requires the protections of

absolute immunity.

A PROSECUTOR’S FUNCTION OF APPEARING

BEFORE A TRIAL COURT AND PRESENTING

EVIDENCE IN SUPPORT OF AN APPLICATION FOR

A SEARCH WARRANT IS ENTITLED TO THE

PROTECTION OF ABSOLUTE IMMUNITY.

On September 22, 1982, the day after the hypnotic session,

Chief Deputy Prosecuting Attorney Reed arrived at work and

was asked by the Prosecuting Attorney, Michael Alexander, to

go to court and assist a police officer from the Muncie Police

Department in an attempt to get a search warrant (T. 134).

Reed had no prior discussion with the police officers concerning

the application for the search warrant (T. 137). He reviewed

several police reports and obtained information from Alex-

ander, his superior, concerning what information was available

26

(T. 134-137). Reed then prcceeded to court and, as the govern-

ment’s attorney, elicited testimony from Officer Scroggins in

support of the application for a search warrant. A transcript of

this hearing can be found in the Petition Appendix, pages

19a-22a. There is absolutely no evidence that Reed had any

prior contact with the police concerning whether a search

warrant could be obtained. There was no evidence that Reed

discussed the situation with the police prior to the hearing.

There is no evidence that Reed had any further involvement in

the events surrounding the search warrant. He did not partici-

pate in the search in any way. The only function Reed per-

formed was to appear in open court and act as the government's

attorney. He questioned a witness as to the factual basis for the

application for the search warrant.

It is undisputed that the trial court was not informed that the

confession from Burns, which formed the sole basis for the

search warrant, was obtained as a result of a hypnotic session.

Reed explained that he was under the mistaken impression

that there was a second confession which was obtained in the

absence of a hypnotic session and that he obtained this

erroneous information from Michael Alexander (T. 134-136).

Burns argues, without evidentiary support, that Reed inten-

tionally lied to or misled the state trial court so as to assure the

issuance of the search warrant. Any dispute as to the motives

of the prosecutor or the reason for the failure to provide the

trial court with allegedly relevant information, is simply irrele-

vant. Imbler v. Pachtman, 424 U.S., at 425-6, citing Griffith v.

Slinkard, 146 Ind. 117, 44 N.E. 1001, 1002 (Ind. 1896). What is

relevant to this discussion is whether the act of appearing

before a trial court as the state's lawyer and advocate is a quasi-

judicial function protected by absolute immunity.

In Indiana, a prosecutor's presence is not necessary for a

police officer to obtain a search warrant. Ind. Code §33-35-5-1

et. seq. However, the state court trial judge testified before the

District Court that, in her court, the presence of a prosecutor

was necessary and that it would not be possible for a police

27

officer to obtain a search warrant on his own (T. 5). The evi-

dence needed to support an application for a search warrant

may be made by affidavit, or pursuant to testimony presented

in open court, as was done in the instant case. When eliciting

testimony in this cause, Reed acted as the government's

attorney and asked questions of Officer Scroggins. It is

undisputed that only an attorney or the judge can ask questions

in an Indiana court. Reed was not sworn as a witness nor did he

testify. His sole function was to act as the government's

attorney and present the state's case.

As discussed supra, in determining whether absolute immu-

nity should attach, this Court looks to the function involved. In

the instant case, the function was that of an officer of the court

presenting evidence in support of the state’s case. This is the

very conduct which the /mbler court held was protected by the

doctrine of absolute immunity.

Furthermore, it is obvious that Reed’s conduct was quasi-

judicial, in that Reed was acting as an attorney while appearing

before the trial court. It is also an act that deserves the protec-

tions of absolute immunity. It is preferable that the govern-

ment’s attorney be involved in this process in order to make the

enforcement of criminal laws fairer and stricter. An attorney

can evaluate the evidence and determine whether probable

cause exists for the issuance of the warrant. The attorney can

then assist the detached magistrate in the probable cause

determination. Under such circumstances, the attorney is not

performing a function comparable to that of a police officer, who

gathers the evidence necessary to obtain the warrant, then

testifies to said facts. The attorney is performing a quasi-

judicial function in that he evaluates the evidence and presents

the state's case.

Absolute immunity for such functions is necessary to shield

the judicial system from harassment and intimidation and the

lawsuits that would surely be filed if absolute immunity is lost

for such functions. Without absolute immunity, all prosecutors

would be subject to civil litigation whenever they have partici-

28

pated in a search warrant proceeding. Under such circum-

stances, a prosecutor who is not judgment proof would logically

refrain from offering any advice to police officers concerning an

application for a search warrant and would refuse to participate

in the judicial warrant application procedure. The end result

would be the absence of cooperation between the police and the

prosecutor's office prior to the filing of criminal charges, to the

detriment of all citiz ns, the police, and the prosecutor's ability

to effectively prosecute criminals. In addition, every time a

defense attorney in a subsequent criminal prosecution filed a

motion to suppress the evidence obtained from a search, would

it not also be prudent for him to file a civil action against the

prosecutor? Once again, the prosecutor would be put in the

position of obtaining a release from civil liability along with any

plea bargain or stipulation of dismissal of the criminal charges.

Such harassment and intimidation of the criminal justice sys-

tem cannot be tolerated if the public expects a prosecutor to

effectively and fearlessly perform his or her duties.

Reed does not argue that he is entitled to absolute immunity

when he acts as a police officer and collects evidence to support

a search warrant, signs an affidavit, testifies to facts necessary

to support a search warrant, or participates in the execution of

the search warrant. But when the only activity of the pros-

ecutor is to appear before the state trial court and present

evidence in support of the search warrant, the case law cited

supra demands the protections afforded by the doctrine of

absolute immunity.

IV.

THE ISSUE OF WHETHER DEPUTY PROSECUTOR

REED WAS ENTITLED TO THE PROTECTION OF

ABSOLUTE IMMUNITY IS A QUESTION OF LAW TO

BE DETERMINED BY THE COURT AND NOT A JURY

In Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976), the

Court recognized that the purpose of absolute immunity was to

defeat a lawsuit at the outset. The immunity is from suit, not

29

just from damages. A judge, as a matter of law, should find that

the wrongful conduct alleged is within the scope of the immu-

nity and dismiss the cause without further proceedings.

In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court

recognized that immunity, whether absolute or qualified, is a

question of law for the trial court to decide. Jd., at 818-819. This

was reiterated in Mitchell v. Forsyth, 472 U.S. 511, 527 n.9

(1985), where the Court emphasized that the determination of

whether a defendant is entitled to immunity is a question of law

for the court to decide. Accord, Rakovich v. Wade, 850 F.2d

1180, 1201-1202 (7th Cir. 1988) (en banc).

Burns argues that the jury should have decided the issue of

whether Reed was entitled to absolute immunity. She argues

that the jury should have been allowed to judge Reed’s motive

and intent, and his explanation for the conduct that he engaged

in. Brief of Petitioner, at 25-32. What Burns fails to recognize is

that motive or intent is not relevant to the immunity analysis.

This Court recognized that absolute immunity must be

afforded to prosecutors irrespective of their intent or motives.

Imbler v. Pachtman, 424 U.S., at 425-6, citing, Griffith v.

Slinkard, 146 Ind. 117, 44 N.E. 1001, 1002 (Ind. 1896). This

holding was confirmed in Harlow v. Fitzgerald, supra, when

this Court held that the subjective intent of a government

official was irrelevant even to the qualified immunity issue. /d.,

at 816-817. What is relevant is for the District Court to deter-

mine whether Reed’s acts were quasi-judicial in nature. If the

trial judge answers the question in the affirmative, then abso-

lute immunity applies; judgment for the prosecutor must be

entered irrespective of his intent or motive.

In the instant case, the District Court denied pre-trial

motions grounded on absolute immunity based on concerns

that there were questions of material fact as to Reed’s actions.

After a week of trial, at the conclusion of Burns’ case, the

evidence established that Reed functioned only as the govern-

ment’s attorney and was performing only quasi-judicial func-

tions. Absolute immunity was therefore appropriate; judgment

30

was entered for Reed. This result is consistent with this Court's

opinion in Anderson v. Creighton, 483 U.S. 635 (1987), where

the Court recognized that trial courts would not always be able

to determine whether immunity should apply on the basis of

the pleadings alone. Therefore, this Court stated:

Noting that no discovery has yet taken place, the

Creightons renew their argument that, whatever the

appropriate qualified immunity standard, some discovery

would be required before Anderson’s summary judgment

motion could be granted. We think the matter somewhat

more complicated. One of the purposes of the Harlow

qualified immunity standard is to protect public officials

from the “broad-ranging discovery” that can be “pecu-

liarly disruptive of effective government.” 457 U.S., at 817

(footnote omitted). For this reason, we have emphasized

that qualified immunity questions should be resolved at

the earliest possible stage of a litigation. Jd., at 818. See

also Mitchell, supra, 472 U.S., at 526. Thus, on remand. it

should first be determined whether the actions the

Creightons allege Anderson to have taken are actions that

a reasonable officer could have believed lawful. If they are,

and if the actions Anderson claims he took are different

from those the Creightons allege (and are actions that a

reasonable officer could have believed lawful), then discov-

ery may be necessary before Anderson's motion for sum-

mary judgment on qualified immunity grounds can be

resolved. Of course, any such discovery should be tailored

specifically to the question of Anderson's qualified immu-

nity.

Id., 646, n 6.

This Court's prior decisions direct the District Court to

determine whether immunity applies as early as possible in the

legal proceeding, preferably prior to the commencement of

discovery. There is no principled distinction that supports

Burn’s argument that the jury must make the factual deter-

mination of whether immunity applies if the case proceeds to

trial. What Burns argues, in effect, is that the District Court

can never direct a verdict even though the evidence indisput-

31

ably supports the granting of immunity. Of course, if the evi-

dence is disputed as to whether a prosecutor performed

functions comparable to that of a police officer, then the District

Court must allow the cause to go to a properly instructed jury

who could find liability only if they find that the prosecutor

engaged in an investigative function. There was no such dis-

puted evidence in this case which would mandate the imposi-

tion of such a procedure.

In the instant unusual case, discovery and the filing of dis-

positive motions did not resolve all questions concerning

exactly what functions Reed performed in the Burns case. A

trial was necessary. After all of Burns’ evidence was intro-

duced, it was clear that Reed's only participation in the Burns

case was to perform quasi-judicial functions. The District

Court then properly made its findings of fact concerning immu-

nity and entered judgment on Reed's behalf. No error was

committed. The District Court followed every existing prece-

dent of this Court that absolute immunity is a question of law

for the judge, not the jury.

CONCLUSION

For all of the foregoing reasons, it is respectfully urged that

this Court affirm the judgment of the United States Court of

Appeals for the Seventh Circuit and the judgment of the

United States District Court for the Southern District of Indi-

ana, Indianapolis Division.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

Rosert S. SPEAR

Chief Counsel

Davip A. Nowak

Deputy Attorney General

Attorneys for Respondent