Respondents Brief — Kalina v. Fletcher

i

QUESTION PRESENTED

Whether a prosecutor who acts as the complaining

witness whose oath supports issuance of an arrest war-

rant is entitled to absolute, rather than qualified, immu-

nity from suit under 42 U.S.C. §1983?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................csceeees iv

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATEMENT OF THE CASE...................005 1

1. The Respondent’s Claim ..................... 2

2. The Petitioner’s Defense ..................... 3

3. The Decisions Below.....................005. 5

SUMMARY OF ARGUMENT....................... 5

RESTS 8 6b cheb citibank s die sccvbicedicove 9

I. THERE IS A PRESUMPTION IN FAVOR OF

QUALIFIED IMMUNITY AND AGAINST

ABSOLUTE IMMUNITY FOR OFFICIALS

WHO VIOLATE CIVIL RIGHTS ............. 9

Il. PETITIONER WAS SUED FOR MAKING

FALSE STATEMENTS AS A COMPLAINING

WITNESS ON AN ARREST WARRANT AFFI-

ECUTORIAL FUNCTION ...,.......000.000: 11

OD FUN soo dap sdpunecddecccctedeccces 14

B. Swearing Out Arrest Warrant Affidavits is

not a Prosecutorial Function ............ 19

FALSE STATEMENTS IN ARREST WARRANT

AFFIDAVITS HAVE NEVER BEEN GIVEN

ABSOLUTE IMMUNITY...................5. 21

iii

TABLE OF CONTENTS - Continued

Page

C. The Decisions of Lower Federal Courts. ...

IV. THERE IS NO GOOD REASON TO EXTEND

ABSOLUTE IMMUNITY TO PROSECUTORS

WHO ACT AS COMPLAINING WITNESSES ...

26

30

TABLE OF AUTHORITIES

Page

FeperaL Cases

Albright v. Oliver, 510 U.S. 266 (1994) ............... 31

Antoine v. Byers & Anderson, Inc., 508 U.S. 429

SESE ccccccoccacesodeduadinedecddéndtusdss 10, 15, 21

— v. United States, 350 F.2d 1002 (D.C. Cir. -

Briscoe v. LaHue, 460 U.S. 325 (1983) ................ 25

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

Burns v. Reed, 500 U.S. 478 (1991)............... passim

Coolidge v. New Hampshire, 403 U.S. 443 (1971)....... 18

County of Riverside v. McLaughlin, 500 U.S. 44

Gee esvcbeddccceccveduenbeneesebéoecectccccece: 17

Dinsman v. Wilkes, 53 U.S. 390 (1852)................ 22

Erlich v. Giuliani, 910 F.2d 1220 (4th Cir. 1990) ...... 27

Forrester v. White, 484 U.S. 219 (1988) ............... 14

Gatlin v. United States, 326 F.2d 666 (D.C. Cir. 1963) .... 17

Gerstein v. Pugh, 420 U.S. 103 (1975) ................ 18

Giordenello v. United States, 357 U.S. 480 (1958) ...... 12

Imbler v. Pachtman, 424 U.S. 409 (1996) .......... passim

Ireland v. Tunis, __ F.3d __, 1997 WESTLAW

250434 (6th Cir., May 15, 1997) ............ 28, 29, 32

Joseph v. Patterson, 795 F.2d 549 (6th Cir. 1986) ...... 27

Kendall v. Stokes, 44 U.S. 87 (1845) .................. 23

Kohl v. Casson, 5 F.3d 1141 (8th Cir. 1993)....... .28, 32

v

TABLE OF AUTHORITIES - Continued

Page

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983)........ 27

Malley v. Briggs, 475 U.S. 335 (1986)............. passim

Mirales v. Waco, 502 U.S. 9 (1991) ................... 15

Mitchell v. Forsyth, 472 U.S. 511 (1985) .............. 15

Pefla v. Mattox, 84 F.3d 894 (7th Cir. 1996)........... 27

Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir.

PRUE a Pnebesebdedebebbccenteedbadebocapececes 27

Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997)..... 29, 32

Schrob v. Catterson, 948 F.2d 1402 (3rd Cir. 1991)..... 27

See ee ee -

aon Sparkman, 435 U.S. 349 (1978).............. 15

Wyatt v. Cole, 504 U.S. 158 (1992) ............... passim

Yaselli v. , 12 F.2d 396 (2d Cir. 1926), affirmed,

275 USS. sbeskeeatesnenaatadesdtetecocse 23

Stare Cases

Brady v. Yount, 42 Wn.2d 697, 258 P.2d 458 (1953) .... 20

Epstein v. Berkowsky, 64 Ill. App. 498 (1896) ......... 18

Griffith v. Slinkard, 44 N.E. 1001 (Ind. 1896) ......... 22

Leong Yau v. Carden, 23 Hawaii 362 (1916)........... 23

Randall v. Henry, 5 Stew. & P. 367 (Ala. 1834) ....... 22

Schneider v. Sheperd, 192 Mich. 82, 158 N.W. 182

PP accccsenccaséhosessebudbbhoubeddesesccccdves 23

Smith v. Parman, 165 Pac. 663 (Kan. 1917)........... 23

Se eC eT ns ee ee

vi

TABLE OF AUTHORITIES - Continued

Page

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d

i Ge ecn) decesanetooamnnindinakhehediinubiinta 21

State v. Ellison, 77 Wn.2d 874, 467 P.2d 839 (1970) .... 17

State v. Klinker, 85 Wn.2d 509, 537 P.2d 268 (1975) 12, 18

Watts v. Gerking, 228 Pac. 135 (Ore. 1924) ........... 23

Statutes & Court Rutes

GD Fs Fs wk ve cdsiccctcccccccssvedesécoes passim

King County Local Rule 2.2...............000eeeeees 20

SE eacacouceecoscescogsncteseuceseoo$oneu 32

8 f RPr e 4

ST ED os co ccccccucccéctocacbossdebeedeceeses 17

Se ME cose nce ceeqecoscoceunanaceagbopecenen 21

Washington Criminal Rule 2.2(a).................... 20

Washington Criminal Rule 3.2B(a)(1) ................ 17

Criminal Rule for Courts of Limited

J iatnivtegudedsaeatshes bbancedcoce 17

Criminal Rule for Courts of Limited

Pe CSS Cee Esurvewwesicovovcccoscces 17

Washington Rule of Evidence 605................... 21

Washington Rule of Professional Conduct 3.3........ 32

Washington Rule of Professional Conduct 3.7........ 21

vii

TABLE OF AUTHORITIES - Continued

Page

OrHer AUTHORITIES

ABA Standards for Criminal Justice, The Prosecu-

tion Function (3d ed. 1993)..................00.0.. 19

Washington Criminal Practice and Pro-

a aT 20

Blackstone Commentaries (1765) .................... 22

Misner, Recasting Prosecutorial Discretion, 86 J.

Ginn Law & Cenmenees 797 C800 iowa. 19

Seattle Police Department Manual of Policies and

EE eae ieee cade dke ace soece cs 33

“Citizen Review of the Police, 1994: A National

Survey,” Police Executive Research Forum, Jan-

Gy SNE cob ee ci bescccabecstscaccbcrcccccccccces 33

Feofanov, Pourncs AND Justice in Russia: Major Tri-

ALS OF THE Post Stauin Era (Barry Trans. 1996) ....

1

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth Amendment to the

Constitution of the United States, which provides in part:

The right of the people to be secure in their

persons .. . against unreasonable . . . seizures,

shall not be violated, and no warrants shall

issue, but upon probable cause, supported by

oath or affirmation. .. .

This case also involves the Fourteenth Amendment to

the Constitution of the United States, which provides in

part:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of .. . liberty . . . without

due process of law.

7

STATEMENT OF THE CASE

This is a civil rights case brought under 42 U.S.C.

§1983 by Respondent Rodney Fletcher against Petitioner

Lynne Kalina. Mr. Fletcher’s claim is that, by making

false statements in an affidavit supporting a warrant for

his arrest, Ms. Kalina caused him to be deprived of rights

guaranteed by the Fourth and Fourteenth Amendments.

See Complaint $5.1, JA 6. Ms. Kalina claims that she is

absolutely immune from suit for such conduct by virtue

of her position as a Deputy Prosecuting Attorney.

Answer, JA 10. The courts below unanimously rejected

the claim of absolute immunity. See Order, JA 21; Fletcher

ae AN en NN ee ee

v. Kalina, 93 F.3d 653 (9th Cir. 1996), JA 23-4. Ms. Kalina

then petitioned this Court for certiorari.

1. The Respondent’s Claim.

Rodney Fletcher’s Complaint against Lynne Kalina

was specific. It focused exclusively on Ms. Kalina’s false

declaration in support of the warrant for Mr. Fletcher’s

arrest. Its factual allegations, which are uncontested for

purposes of this review, read as follows:

3.2 On or about December 14, 1992, Lynne

Kalina prepared and filed a Certification for

Determination of Probable Cause (“Certifica-

gs SP

3.3 In the Certification, defendant Lynne

Kalina made false statements about Rodney

Fletcher, with reckless disregard for the truth,

knowing that her certification would result in

Mr. Fletcher’s arrest and prosecution.

3.4 In the Certification, defendant Lynne

Kalina falsely accused Mr. Fletcher of breaking

into the Our Lady of Guadalupe School in King

County, Washington, and of committing certain

acts while within the school, including damag-

ing a vending machine and stealing property.

3.5 In the Certification, Ms. Kalina falsely

stated that Mr. Fletcher had never been associ-

ated with the school and did not have permis-

sion to enter the school. In fact, Mr. Fletcher had

been hired to install partitions and had per-

formed extensive work, at and for the school,

was known to the school personnel and was

authorized to enter onto the premises.

3.6 In the Certification, Ms. Kalina falsely

stated that Mr. Fletcher was identified from a

— —e

3

photo montage by an eye witness. In fact, two

eye witnesses failed to identify Mr. Fletcher

from the photo montage and no witness identi-

fied him. These failed photo identifications were

detailed specifically in the Seattle Police Depart-

ment reports and statements that were available

to Ms. Kalina at the time that she prepared the

Certification.

3.7 Pursuant to the recitations in the Certi-

fication, an arrest warrant was issued for

Rodney Fletcher and on September 24, 1993, Mr.

Fletcher was arrested on a charge of Burglary in

the Second Degree.

Complaint, JA 5-6. Mr. Fletcher’s legal contention was

that, by these actions, Ms. Kalina caused him to be denied

“the right to be free from unreasonable seizures and from

deprivation of liberty, without due process of the law,

guaranteed by the Fourth and Fourteenth Amendments

to the Constitution of the United States... .” JA 6.

2. The Petitioner’s Defense.

Petitioner Kalina’s answer denied the main factual

allegations in Mr. Fletcher’s complaint, and demanded a

jury trial on them. JA 8-9. In addition, as affirmative

defenses, Ms. Kalina alleged that she was “immune from

suit based on the doctrine of absolute prosecutorial

immunity” and, in the alternative, that she had “acted in

good faith in the performance of her duty and is therefore

qualified[ly] immune.” JA 10.

Shortly after her answer was filed, and before any

discovery was done, Ms. Kalina filed a motion for sum-

mary judgment on her claim of absolute immunity. The

motion was supported by an affidavit which did not

contest any of the factual allegations in Mr. Fletcher's

complaint, but described the sequence of events leading

to the issuance of the warrant for Mr. Fletcher’s arrest. JA

11-12. In this affidavit, Ms. Kalina acknowledged that she

had prepared and signed the certification on which the

warrant for Mr. Fletcher’s arrest was issued, before any

charges were actually filed against him. JA 12. She said

she later filed the certification, along with an Information

charging Mr. Fletcher with second degree burglary, and a

motion and proposed order to issue a warrant for his

arrest. JA 12-20.

Ms. Kalina “did not personally appear in court when

the warrant was issued”. Pet. Brief 24. However, she

claimed absolute prosecutorial immunity from Mr.

Fletcher’s claim because

the filing of the information and request for the

arrest warrant were done contemporaneously as

a part of the initiation of the prosecution against

Mr. Fletcher.

JA 12. She did not explain why she decided to act as the

affiant for the arrest warrant,’ or why she swore to the

falsehoods her affidavit contained.

1 Attached to Ms. Kalina’s affidavit was, among other

documents, a sworn police report which apparently was filed

along with the arrest warrant application. See JA 17. This police

report, the contents of which did not support probable cause,

was signed under penalty of perjury under RCW 9A.72.085, as

was Ms. Kalina’s probable cause certification (JA 20).

3. The Decisions Below.

The District Court denied Ms. Kalina’s motion, hold-

ing her actions were not covered by her absolute immu-

nity. JA 21. Ms. Kalina appealed interlocutorily, and the

Court of Appeals unanimously affirmed, holding she was

“not immune for her actions in filing a declaration for an

arrest warrant,” but “emphasiz[ing] that Kalina may be

able to avoid liability by showing at trial that her conduct

did not violate a clearly established right of which a

reasonable person would have known.” JA 28.

¢

SUMMARY OF ARGUMENT

This Court’s decisions establish a presumption in

favor of granting state officials qualified immunity, rather

than absolute immunity, from suits for violations of civil

rights. Petitioner and her amici would have the Court

ignore that presumption and extend absolute immunity

to officials who act as complaining witnesses providing

the “oath or affirmation” supporting an arrest warrant -

but only when those officials are public prosecutors or

their investigators. To do that would be contrary to this

Court’s prior decisions, to the historical and common law

basis for allowing prosecutors immunity from civil rights

lawsuits, and to sound policy.

1. As the courts below held, this case is controlled

by Malley v. Briggs, 475 U.S. 335 (1986) and Buckley v.

Fitzsimmons, 509 U.S. 259 (1993).

Malley held that a police officer who did exactly what

Petitioner did - caused a person to be seized by submitting a

sworn statement in support of a complaint and request for

an arrest warrant — was entitled to qualified, rather than

absolute, immunity. In so holding, the Court applied a “func-

tional approach” which focuses on the nature of the function

that caused the alleged violation, rather than the status of the

person who performed it.

The function performed by the Petitioner in this case

(and in Malley) was an ancient one — the function of a

complaining witness providing the “oath or affirmation”

required by the Fourth Amendment for issuance of a

warrant of arrest. It was Petitioner’s oath that caused Mr.

Fletcher’s wrongful arrest. Without an oath, for all her

advocacy, she could cause no warrant to issue. At com-

mon law, in 1871 and long before, it was well established

that persons who provided such an oath could be sued

for doing so falsely or maliciously and without probable

cause.

The courts below properly held, in light of Malley

and this common law history, that a higher level of

immunity could not be accorded a defendant solely

because she is employed as a deputy prosecuting attor-

ney. They were fortified in that position by Buckley, which

denied a prosecutor absolute immunity for conduct that

also closely resembles that for which Petitioner was sued:

fabricating evidence to support yet unfiled charges. Their

decisions correctly applied these controlling precedents.

2. Petitioner seeks to avoid this conclusion by sub-

tly modifying this Court’s “functional approach” to abso-

lute immunity claims. That approach focuses on the

conduct for which the defendant has been sued, rather

than the role in which the defendant performed it. Peti-

tioner would have the Court change that approach to

focus on the “function of the function,” the purpose for

which the defendant took the challenged action.

This modification has already been rejected by this

Court. It would make the immunity issue turn on the

defendant's status, or her intentions, rather than the con-

duct by which she caused the alleged civil rights viola-

tion. To make the outcome turn on status would be to

discard the functional analysis. To make the issue turn on

the defendant’s intentions would run contrary to the

nature and purpose of absolute immunity. Moreover,

even if the issues were made to turn on the defendants’

intentions, it would make no difference here, for Peti-

tioner’s intentions were exactly the same as the defen-

dant in Malley v. Briggs: to get a warrant to seize and

bring to court a person she was accusing of a crime.

3. To the extent these circumstances present a con-

flict between two longstanding general principles - com-

plaining witnesses can be sued but prosecutors are

immune — the conflict is appropriately resolved in favor

of the former, older rule, which was the law in 1871 and

well before. In reality, however, there is no conflict.

Swearing on oath as a complaining witness on an arrest

warrant is not traditionally a prosecutor’s function. It is

not “advocacy” and it is not “judicial.” It is not part of a

prosecutor’s job in most jurisdictions, and is not even a

prosecutorial function under the law of the State of Wash-

ington. It does not resemble the discretionary functions

for which prosecutors are given special protection from

civil rights suits, and should not be included among

Te TT

them. The function of a witness is to tell the truth, not to

exercise discretion.

4. There is no compelling reason to expand the

scope of absolute immunity to cover prosecutors who

take on the role of complaining witnesses. Prosecutors

need not perform this function. If they choose to have

defendants arrested (rather than haled into court by sum-

mons, which implicates no constitutional right) they can

easily, and more accurately, support their requests for

arrest warrants with affidavits from police officers. If

they choose nonetheless to provide the required oath for

an arrest warrant themselves, they are adequately pro-

tected by the same qualified immunity that covers police

officers who do the same thing. Prosecutors who act

responsibly should rarely, if ever, face lawsuits for that

conduct; and those few suits that are brought can be

easily resolved, as the factual and legal issues they pre-

sent will be narrow. Concern about such lawsuits should

cause little distraction to prosecutors who elect to per-

form a function that (at least theoretically) exposes them

to professional discipline, and even prosecution, for will-

ful malfeasance.

Permitting prosecutors to cause arrests based on no

“oath or affirmation” but their own, and then cloaking

their abuses of that power with absolute immunity,

would leave innocent citizens like Rodney Fletcher with-

out any legal remedy, even for the most egregious official

misconduct. The law has never allowed that and should

not be changed to allow it now.

S

ARGUMENT

I. THERE IS A PRESUMPTION IN FAVOR OF QUAL-

IFIED IMMUNITY AND AGAINST ABSOLUTE

IMMUNITY FOR OFFICIALS WHO VIOLATE

CIVIL RIGHTS.

The precedential framework in which this case arises

was well described by the opinion of the Court in Buckley

v. Fitzsimmons, 509 U.S. 259, 267-69 (1993):

The principles applied to determine the scope of

immunity for state officials sued under Rev.Stat.

§1979, as emended, 42 U.S.C. §1983 are by now

familiar. Section 1983, on its face admits of no

defense of official immunity. It subjects to lia-

bility “[e]very person” who, acting under color

of state law, commits the prohibited acts. In

Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct.

783, 788, 95 L.Ed. 1019 (1951), however, we held

that Congress did not intend §1983 to abrogate

immunities “well grounded in history and rea-

son.” Certain immunities were so well estab-

lished in 1871, when §1983 was enacted, that

“we presume that Congress would have speci-

fically so provided had it wished to abolish”

them. Pierson v. Ray, 386 U.S. 547, 554-555, 87

S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967). See

also Newport v. Fact Concerts, Inc., 453 U.S. 247,

258, 101 S.Ct. 2748, 2755, 69 L.Ed.2d 616 (1981).

Although we have found immunities in §1983

that do not appear on the face of the statute,

“[w]e do not have a license to establish immu-

nities from §1983 actions in the interests of what

we judge to be sound public policy.” Tower v.

Glover, 467 U.S. 914, 922-923, 104 S.Ct. 2820,

2826, 81 L.Ed.2d 758 (1984). “[O]ur role is to

interpret the intent of Congress in enacting

10

§1983, not to make a freewheeling policy

choice.” Malley v. Briggs, 475 U.S. 335, 342, 106

S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

Since Tenney, we have recognized two kinds

of immunities under §1983. Most public officials

are entitled only to qualified immunity. Harlow

v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727,

2732, 73 L.Ed.2d 396 (1982); Butz v. Economou,

438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d

895 (1978). Under this form of immunity, gov-

ernment officials are not subject to damages lia-

bility for the performance of their discretionary

functions when “their conduct does not violate

clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S., at 818,

102 S.Ct., at 2738. In most cases, qualified immu-

nity is sufficient to “protect officials who are

required to exercise their discretion and the

related public interest in encouraging the vig-

orous exercise of official authority.” Butz v. Econ-

omou, 438 U.S., at 506, 98 S.Ct., at 2911.

We have recognized, however, that some

officials perform “special functions” which,

because of their similarity to functions that

would have been immune when Congress

enacted §1983, deserve absolute protection from

damages liability. Id., at 508, 98 S.Ct., at 2911.

“(T]he official seeking absolute immunity bears

the burden of showing that such immunity is

justified for the function in question.” Burns v.

Reed, 500 U.S., at 486, 111 S.Ct., at 1939; Antoine

v. Byers & Anderson, Inc., 508 U.S. 429, 432, and

n. 4, 113 S.Ct. 2167, __, and n. 4, 124 L.Ed.2d

391 (1993). Even when we can identify a com-

mon-law tradition of absolute immunity for a

11

given function, we have considered “whether

§1983’s history or purposes nonetheless counsel

against recognizing the same immunity in §1983

actions.” Tower v. Glover, 467 U.S., at 920, 104

S.Ct., at 2825. Not surprisingly, we have been

“quite sparing” in recognizing absolute immu-

nity for state actors in this context. Forrester v.

White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98

L.Ed.2d 555 (1988).

See also Wyatt v. Cole, 504 U.S. 158, 163-64 (1992).

“The presumption is that qualified rather than abso-

lute immunity is sufficient to protect government officials

in the exercise of their duties.” Burns v. Reed, 500 U.S. at

486-87 (internal quotation marks and citations omitted).

That presumption can be overcome only by a showing by

ihe official defendant that the conduct for which he seeks

immunity would have been privileged at common law in

1871, and that a grant of immunity would be consistent

with the purposes of §1983. “Thus, if application of the

principle is unclear, the defendant simply loses.” Buckley

v. Fitzsimmons, 509 U.S. at 281 (concurring opinion of

Justice Scalia).

Petitioner has failed utterly to overcome this pre-

sumption.

Il. PETITIONER WAS SUED FOR MAKING FALSE

STATEMENTS AS A COMPLAINING WITNESS

ON AN ARREST WARRANT AFFIDAVIT, NOT

FOR PERFORMING A PROSECUTORIAL FUNC-

TION.

“In determining whether particular actions of gov-

ernment officials fit within a common-law tradition of

12

absolute immunity, or only the more general standard of

qualified immunity, we have applied a ‘functional

approach,’ see, e.g., Burns, 500 U.S., at 486, 111 S.Ct., at

1939, which looks to ‘the nature of the function per-

formed, not the identity of the actor who performed it,’

Forrester v. White, 484 U.S., at 229, 108 S.Ct., at 545.”

Buckley v. Fitzsimmons, 509 U.S. at 269.

Petitioner Kalina performed more than one function

with respect to Rodney Fletcher’s prosecution and

arrest.2 One of her functions was clearly prosecutorial:

preparing and signing the Information by which Mr.

Fletcher was charged. See Imbler v. Pachtman, 424 U.S. 409,

431 (1996). That was not the function for which Mr.

Fletcher sued her, however; his Complaint contains no

allegations of misconduct with respect to the filing of the

charges against him. See Complaint, JA 4-6. Petitioner

Kalina was “sued under §1983 for false arrest,” Malley v.

Briggs, 475 U.S. at 340, not for malicious prosecution.

Nor does Mr. Fletcher’s Complaint allege that Ms.

Kalina acted improperly in requesting a warrant for his

arrest. It was not the request for a warrant that caused

Mr. Fletcher’s arrest - for if that request had been made

without Ms. Kalina’s false sworn statements, it would

have been denied, for the court could not have found

probable cause. See Giordenello v. United States, 357 U.S.

480, 485 (1958); State v. Klinker, 85 Wn.2d 509, 517, 537

P.2d 268 (1975). Mr. Fletcher’s Complaint thus focuses on

this one aspect of Petitioner Kalina’s conduct — the fact

? A prosecutor may perform more than one function in a

single case, some covered by qualified immunity and others not.

Burns v. Reed, 500 U.S. 478, 492 (1991).

13

that she made false statements under oath to cause his

arrest, JA 5-6 — because that is what harmed him. It was

with regard to this function, and this function only, the

courts below rejected Ms. Kalina’s claim of absolute

immunity: “we hold that a prosecutor is not absolutely

immune when preparing a declaration in support of an

arrest warrant.”° It is with regard to this function, not the

varieties of true prosecutorial conduct to which the Briefs

of Petitioner and her amici repeatedly refer,* this case

should be decided.

3 JA 26; see also JA 27 (“Kalina’s actions in writing, signing

and filing the declaration for an arrest warrant are virtually

identical » the police officer’s actions in Malley.”); JA 23

(“whether a state prosecutor who allegedly made false

statements in an affidavit supporting an application for a search

warrant should be accorded absolute immunity”); JA 28

(“Kalina is not absolutely immune for her actions in filing a

declaration for an arrest warrant.”).

* Petitioner's formulation of the Question Presented, which

refers generically to “the prosecutor’s conduct in causing an

arrest warrant to issue” (Pet. Brief i), reflects her discomfort in

discussing the specific form of “conduct” to which this lawsuit

and the decisions below were limited. The formulations by most

of her amici similarly obscure the issue, see Brief of the National

District Attorneys Association at i (“conduct in the function of

an arrest warrant”), Brief of the National Association

of Counties, Etc., at i (“conduct in seeking an arrest warrant”),

or attempt to completely change the subject, see Brief of the

United States as Amicus Curiae at I (“requesting the issuance of

an arrest warrant”). Petitioner’s arguments similarly steer away

from the specific conduct involved here, and toward more

general, prosecutorial activities such as “Requesting an Arrest

Warrant in Conjunction with the Filing of an Information,”

“Initiat(ing] Criminal Charges and Seek[ing] an Arrest

Werrant,” and “ for an Arrest Warrant to Insure that

the Defendant is Available for Trial.” Pet. Brief iv.

14

A. A Functional Analysis Focuses on the Nature of

the Challenged Conduct, Not its Purpose.

Petitioner’s evasions regarding the function for

which she was sued reflect the central problem with her

position in this appeal: “Kalina’s actions in writing, sign-

ing and filing the declaration for an arrest warrant are

virtually identical to the police officer’s actions in Mal-

ley.” JA 27. Since “it is the nature of the function per-

formed, not the identity of the actor who perform{s] it,

that inform[s] [the Court’s] immunity analysis,” Burns v.

Reed, 500 U.S. at 506 (concurring and dissenting opinion

of Justice Scalia), quoting Forrester v. White, 484 U.S. 219,

229 (1988), Malley controls this case unless Ms. Kalina’s

function can somehow be distinguished from Officer Mal-

ley’s.

Petitioner attempts to do this by asking this Court to

add a step to its “functional analysis” of immunity issues,

a step that would focus on “the nature and function of a

particular act, not on the act itself.” Pet. Brief at 20.

Rather than looking to “the function” of the act, Peti-

tioner’s test would look to “the function each actor per-

forms in the criminal justice system.” Id. at 22 (emphasis

added).

This Court has previously rejected this argument.

Buckley v. Fitzsimmons, supra. It has consistently held that

the scope of absolute immunity under §1983 depends on

“the nature of the function performed, not the identity of

the actor who performed it.” Forrester v. White, 484 U.S.

15

219, 229 (1988).5 Its “functional approach” focuses on

“conduct,”¢ not position or intent. Shifting the focus from

the function itself to the “function of the function” would

eviscerate functional analysis.

Focusing not on the conduct but on the actor’s inten-

tions in engaging in it would undermine the very pur-

pose of absolute immunity - avoiding inquiry into the

actor’s subjective intentions. See Mirales v. Waco, 502 U.S.

at 11; Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). If a

prosecutor is immune when she swears out an affidavit

for an arrest warrant “to aid the trial court’s exercise of

personal jurisdiction over a charged defendant” (Pet.

Brief 20), what if it is alleged that was not her purpose?

What if it is claimed that her purpose was to harass the

° See Burns v. Reed, 500 U.S. at 495 (denying absolute

immunity to prosecutor performing function for which police

officers receive only qualified immunity); Buckley v.

Fitzsimmons, 509 U.S. at 273 (“[T]he actions of a prosecutor are

not absolutely immune merely because they are performed by a

prosecutor. . . . When a prosecutor performs ihe investigative

functions normally performed by a detective or police officer, it

is neither appropriate nor justifiable that, for the same act,

immunity should protect the one and not the other.”).

© Buckley v. Fitzsimmons, 509 U.S. at 271, 272. See id. at 270

(discussing Imbler v. Pachtman, regarding “initiating a

prosecution and presenting the state’s case,” and Burns v. Reed

regarding “giving legal advice to the police”); id. at 271 (quoting

Burns regarding “appearing before a judge and presenting

evidence”); see also, e.g., Antoine v. Byers & Anderson, Inc., 508

U.S. 429, 434 (1993) (“producing a ‘verbatim’ transcript of each

session of the court”); Mirales v. Waco, 502 U.S. 9, 13 (1991)

(“directing police officers to bring counsel to court”); Stump v.

Sparkman, 435 U.S. 349, 362 (1978) (“approv[ing] petitions

relating to the affairs of minors”).

16

person arrested, or to penalize him for refusing to cooper-

ate with the government, or to squeeze a confession from

him, or to permit police to conduct a warrantless search

of his person, or to settle some private score with him?

Either the court must conclusively presume that, because

the act was done by a prosecutor (rather than a police

officer)? its purpose is always proper and “judicial”

(thereby making the issue turn on “the identity of the

actor”) or it must permit inquiry into actual subjective

motivation, making the immunity no longer absolute.

Conversely, what if the prosecutor alleges that her

purpose in engaging in conduct that is not protected by

absolute immunity - holding a postindictment press con-

ference, for example - was to aid in the defendant's

apprehension to bring him before the court, or to attract

the attention of potential witnesses, or to inform victims

of the crime about developments in the case? In Buckley v.

Fitzsimmons, this Court did not let such subjective argu-

ments overcome the fact that the act of making out-of-

court press statements is not inherently prosecutorial,

and was not protected at common law. 509 U.S. at 276-77.

It should not do so here. Converting the “functional

approach” into an inquiry into motive or purpose would

make it totally unworkable.

Moreover, a subjective inquiry would not aid Peti-

tioner’s case, for there is no difference between the func-

tion or purpose of Ms. Kalina’s warrant request and

7 Additionally, of course, making the test for immunity turn

on “purpose” would beg the converse question of why absolute

immunity would not extend to police officers, or others, if their

intent was “prosecutorial”. See page 17, below.

ge gy

17

Officer Malley’s. As the Court of Appeals observed, Ms.

Kalina filed her arrest warrant affidavit along with a

felony infoi.nation; Officer Malley filed his along with a

felony complaint. JA 27 n.2. The purpose of both actions

was to bring the arrested person under court jurisdiction.

See Malley v. Briggs, 475 U.S. at 337. Indeed, no other

purpose could be claimed: except in unusual circum-

stances not presented here, arrests are justified only in

order to bring a person believed to have committed a

crime before the court to face charges. “Arrests for inves-

tigation” are as illegal in Washington as they are else-

where.® All arrest warrants in Washington, whether

obtained by police or by prosecutors, “command the

defendant be arrested and brought forthwith before the

court issuing the warrant.” Washington CrR 2.2(c).? Thus,

even if the “purpose” or “function” of an arrest were

controlling, there is no difference between this case and

Malley.

Malley differs from this case only in that the affiant

whose oath supported the arrest warrant was a deputy

8 State v. Ellison, 77 Wn.2d 874, 877, 467 P.2d 839 (1970); see

Bowling v. United States, 350 F.2d 1002, 1003 (D.C. Cir. 1965);

Gatlin v. United States, 326 F.2d 666, 670-71 (D.C. Cir. 1963);

Simpson v. United States, 346 F.2d 291, 293 (10th Cir. 1965).

% Accord, Washington Crim. Rule for Courts of Limited

Jurisdiction 2.2(c). See also RCW 10.31.030 (requiring an officer

making an arrest under warrant to take the arrested “person

directly and without delay before a judge or before an officer

authorized to take the recognizance. . . . ”). Even persons

arrested without warrants must be taken to court as soon as

practicable. See Wash. CrR 3.2B(a)(1); Wash. CrRLJ 3.2.1; County

of Riverside v. McLaughlin, 500 U.S. 44 (1991).

18

prosecuting attorney rather than a police officer. JA 27.!°

Because that does not change the analysis, Petitioner’s

claim of absolute immunity must be rejected, just as was

Officer Malley’s.

10 Neither can Malley sensibly be distinguished from this

case on the ground that Malley involved conduct occurring prior

to the “judicial phase” of the case, as Petitioner and some of her

amici alternatively suggest. See Pet. Brief 18-19; Brief of

Maryland et al. at 4-5. For one thing, the idea that there is such a

conclusive demarcation was squarely rejected in Buckley, by the

Court’s unanimous denial of absolute immunity to

postindictment press statements. Buckley v. Fitzsimmons, 509

U.S. 278, 279, 282. Moreover, both this case and Malley sit right

on the line, not on one side of it or the other. Officer Malley, just

like Ms. Kalina, submitted an affidavit and other documents to a

judge, who signed the arrest warrant. Malley v. Briggs, 475 U.S.

at 335. Officer Malley’s other documents included “felony

complaints”; Ms. Kalina’s included an Information. There may

(or may not) be a difference between those species of documents

with respect to the Sixth Amendment question of whether a

“criminal prosecution” had begun; but there is none which

affects the Fourth Amendment right to a warrant and probable

cause. Gerstein v. Pugh, 420 U.S. 103 (1975). Nor can it make a

difference that Ms. Kalina made a “prosecutorial”

determination of probable cause (as opposed to Officer Malley’s

police determination). See Pet. Br. 21-22. To so contend ignores

the Fourth Amendment's requirement of warrants issued by

neutral magistrates rather than prosecutors, Coolidge v. New

Hampshire, 403 U.S. 443 (1971); State v. Klinker, 84 Wn.2d 516-19.

It also runs contrary to the sensible common law rule that

immunities cannot be conferred on oneself by one’s own legal

advice. Epstein v. Berkowsky, 64 Ill. App. 498 (1896).

19

B. Swearing Out Arrest Warrant Affidavits is not a

Prosecutorial Function.

This Court has heretofore granted absolute immunity

only to purely prosecutorial functions such as “initiating

a prosecution and in presenting the State’s case,” Imbler v.

Pachtman, 424 U.S. at 431, or “appearing before a judge

and presenting evidence” from law enforcement officers

in a hearing on an application for a search warrant, Burns

v. Reed, 500 U.S. at 491. “Those actions clearly involve the

prosecutor’s role as advocate for the State... . ” Ibid.

Swearing to facts in an arrest warrant affidavit is neither

advocacy nor a traditional prosecutorial function. Even with

the greatly expanded power and prerogative most jurisdic-

tions give prosecutors in modern practice, prosecutors gener-

ally do not take on the role of complaining witnesses.

Washington prosecutors’ common, informal practice of tak-

ing this role appears to be a historical and professional

aberration. Providing oaths for warrants does not appear in

descriptions of the function of the office of public prosecu-

tor.'! As the Solicitor General’s Brief acknowledges, “federal

prosecutors typically do not personally attest to the facts

in . . . an affidavit filed in support of an application for an

arrest warrant. ...” Brief of the United States as Amicus

Curiae at 7. Neither do prosecutors in most other states, as

far as we can determine.!?

11 See, e.g., Misner, Recasting Prosecutorial Discretion, 86 J.

Crm. Law & Crimino.ocy 717, 728-763 (1996); ABA Standards for

Criminal Justice, The Prosecution Function (3d ed. 1993).

122 Our own informal (and admittedly incomplete) survey

has identified only one other state - Nebraska - where

prosecutors routinely take on this role. If there were many

20

This function is not even officially assigned to prose-

cutors by Washington law. Ms. Kalina’s “Certification”

was submitted pursuant to Washington Criminal Rule

2.2(a), which does not require, or even suggest, that the

“complainant” whose oath must support an arrest war-

rant should be a prosecutor.!> As the panel opinion noted,

under Washington law the certification could as easily

have been signed by “a police officer or complaining

witness”.!4 In fact, ironically, Ms. Kalina’s certification

was accompanied by a sworn police report (JA 17); but

that police report did not make out probable cause,

because, unlike Ms. Kalina’s certification, it did not mis-

state facts.

The law does not assign the role of complaining

witness to prosecutors because the role of a witness is to

tell the truth, not to advocate. Washington law is ‘consis-

tent with this: contrary to Petitioner’s characterization, it

does not consider sworn statements “pleadings”,!5 and

others, we assume that would have been mentioned in one of

the briefs of Petitioner’s many prosecutor/amici.

13 Even King County Local Rule 2.2, which Petitioner cites

(Pet. Brief 5) does not equate the prosecutor’s summary of the

facts with a warrant affidavit, or require that it be sworn. See

Pet. Brief 14a.

44 JA 27. The panel consisted of Senior Judge Eugene

Wright, who wrote the opinion, and Judges Robert Beezer and

Diarmuid O’Scannlain. Judges Wright and Beezer are from

Washington State; Judge Wright is a former Washington

Superior Court Judge. Accord, Ferguson, Washington Criminal

Practice and Procedure § 2745 at 39 (1984) (“[T]he person [must]

be legally qualified as a witness”).

15 See Pet. Brief 5-7; but see Brady v. Yount, 42 Wn.2d 697,

699, 258 P.2d 458 (1953) (“An affidavit is not a pleading... ”).

21

generally does not let lawyers testify and argue in the

same proceeding. Washington Rule of Professional Con-

duct 3.7. Nor can the role of a witness be characterized as

“quasi judicial”, or an occasion for the exercise of discre-

tion. Judges cannot testify in hearings over which they

preside,’ and a complaining witness has no discretion to

do other than tell the truth in the “oath or affirmation”

she provides. Where there is no discretion there is no

justification for absolute immunity. Antoine v. Byers &

Anderson, Inc., 508 U.S. at 436. There is no historical or

institutional reason to shield with absolute immunity

complaining witnesses who fail to do their legal duty to

tell the truth under oath, just because those witnesses

happen also to be deputy prosecutors.

Ill. COMPLAINING WITNESSES WHO MAKE

FALSE STATEMENTS IN ARREST WARRANT

AFFIDAVITS HAVE NEVER BEEN GIVEN ABSO-

LUTE IMMUNITY. P

Ever since the Fourth Amendment was enacted to

require an “oath or affirmation” supporting probable

cause to arrest, persons who supplied that oath falsely

and maliciously have been answerable in damages. Noth-

ing in this Court’s §1983 case law holds otherwise, as to

prosecutors or anyone else.

Washington law provides specifically that “[n]o pleading other

than an .. . information” is required to bring a felony charge.

RCW 10.37.010.

16 See State ex rel. Carroll v. Junker, 79 Wa.2d 12, 21, 482 P.2d

775 (1971); Washington Rule of Evidence 605.

22

A. The Common Law.

“[Cjomplaining witnesses were not absolutely

immune at common law. In 1871, the generally accepted

rule was that one who procured the issuance of an arrest

warrant by submitting a complaint could be held liable if

the complaint was made maliciously and without proba-

ble cause. Given malice and the lack of probable cause,

the complainant enjoyed no immunity.” Malley v. Briggs,

475 U.S. at 340-41 (footnote omitted).

There were no exceptions to this rule for public pros-

ecutors in 1871. “Indeed, as [the Court has] . . . previously

recognized, see Imbler v. Pachtman, 424 U.S. 409, 421, 96

S.Ct. 984, 990, 47 L.Ed.2d 128 (1976), the first case extend-

ing any form of prosecutorial immunity was decided

some 25 years after the enactment of §1983.” Burns v.

Reed, 500 U.S. at 499 (concurring and dissenting opinion

of Justice Scalia) (original emphasis).'”

That “first case,” Griffith v. Slinkard, 44 N.E.1001 (Ind.

1896), rested on the idea that a prosecutor is “a judicial

officer” who could not be held liable for “his own judg-

ment” or any “judicial determination, however erroneous

it may be, and however malicious the motive which pro-

duced it.” Id. at 1003. Cases that followed Griffith rested

17 Although the common law cases cited in Malley (id. at 341

n.3) did not involve public prosecutors (an office that hardly

existed at the time), they did involve private “prosecutors”, and

often referred to the defendants as such. See, e.g., Dinsman ov.

Wilkes, 53 U.S. 399, 402 (1852), quoting 3 W. Blackstone

Commentaries 126 (1765); Randall v. Henry, 5 Stew. & P. 367,

375-380 (Ala. 1834), and cases there cited.

23

on similar grounds.’* Only one of these early cases

involved a prosecutor who, like Petitioner, was sued for

allegedly making “false representations induced a judge

to issue a warrant of arrest.” Leong Yau v. Carden, 23

Hawaii 362, 364 (1916). While recognizing the general

rule that a public prosecutor “cannot be called upon to

respond in damages for the honest exercise of his judg-

ment within his jurisdiction,” the court in Leong Yau

refused to extend absolute “judicial” immunity to that

case. Id. at 364-5.'9

Thus, as Malley held, there was no settled “immunity

at common law that Congress intended to incorporate in

the Civil Rights Act,” Wyatt v. Cole, 504 U.S. 158, 164

(1992), for wrongful arrests caused by false oaths or affir-

mations. Nor were there other categories of common-law

immunity which would likely have extended to such

18 See Smith v. Parman, 165 Pac. 663 (Kan. 1917) (“The public

prosecutor, in deciding whether a particular prosecution shall

be instituted or followed up, performs much the same function

as a grand jury”); Watts v. Gerking, 228 Pac. 135, 139 (Ore. 1924)

(prosecuting attorneys “like grand jurors, . . . are vested with

some discretion and judgment,” and are therefore immune from

suit for filing criminal charges without probable cause); Yaselli v.

Goff, 12 F.2d 396, 404 (2d Cir. 1926), affirmed 275 U.S. 503 (1927)

(“the public prosecutor, in deciding whether a particular

prosecution shall be instituted or followed up, performs much

the same function as a grand jury”). See also Kendall v. Stokes, 44

U.S. 87, 98 (1845) (“a public officer is not liable to an action . . . in

relation to which it is his duty to exercise judgment and

discretion”).

? Cf. Schneider v. Sheperd, 192 Mich. 82, 158 N.W. 182, 184

(1916) (prosecutor “was not entitled to the immunity of a quasi-

judicial officer” for “instigating the arrest of the plaintiff”

without a warrant or probable cause).

24

conduct by a prosecutor, had the case arisen. See Burns v.

Reed, 500 U.S. at 499 (concurring and dissenting opinion

of Justice Scalia). Commor law “judicial immunity”

would not apply to such conduct (as it would to the

decision to prosecute itself) because it involves “no adju-

dication of rights.” Id. at 504. Nor would the absolute

immunity from defamation claims based on statements in

judicial proceedings - for the common law universally

allowed such suits for malicious prosecution or false

arrest against “complaining witnesses who . . . set the

wheels of government in motion by instigating a legal

action”, Wyat: v. Cole, 504 U.S. at 164-65, even though

those same witnesses could not be sued for defamation in

their testimony or arguments at trial. At best, such com-

plaining witnesses could claim “quasi-judicial” immu-

nities; but such immunities were qualified, not absolute.

See Burns v. Reed, 500 U.S. 500 (concurring and dissenting

opinion of Justice Scalia). That is what Malley extended to

police officers who take on that role; and that is what the

courts below granted Petitioner. She would have received

no more at common law.

B. This Court’s Cases.

This Court’s modern decisions regarding absolute

immunity from suit under §1983 have been consistent

with the common law in this respect. Although the Court

has granted public prosecutors broader immunity than

they were afforded by any decision prior to , it has

never granted absolute immunity from suit for rights

violations that would have been actionable/ then.

25

Imbler v. Pachtman “h{e}id only that in initiating a pros-

ecution and presenting the State’s case, the prosecutor is

immune from a civil suit for damages under §1983”, and

granted absolute immunity to a prosecutor’s “decision to

initiate a prosecution” and the exercise of “discretion in the

conduct of the trial and the presentation of evidence.” 424

US. at 431, 421, 426. In so doing, it drew on two well

established lines of common law immunity, judicial?° immu-

nity, and the immunity of lawyers from suits for defamation

for “courtroom statement(s]” and “briefs and pleadings.”?"

In Burns v. Reed, the Court applied the immunity established

in Imbler to the questioning of a police witness at a pretrial

hearing on a search warrant application - an action which,

like questioning witnesses at a trial, “clearly involve[d] the

prose *:tor’s role as an advocate for the State... . ” 500 US.

at 49;.

20 “(Aji three officials — judge, grand juror, and prosecutor

- exercise a discretionary judgment on the basis of evidence

presented to them.” 424 U.S. at 423 n.20. “A prosecutor is duty

bound to exercise his best judgment both in deciding which

suits to bring and in conducting them in court.” Id. at 424. “[A]

prosecutor inevitably makes many decisions that could

engender colorable claims of constitutional deprivation.” Id. at

425. “A prosecutor often must decide . . . whether to proceed to

trial where there is a sharp conflict in the evidence.” Id. at 426

n.24. “A prosecuting attorney is required, constantly . . . to make

decisions on a wide variety of sensitive issues.” Id. at 431 n.33.

21 Id. at 426 n.23. As the Court recognized in Imbler, the

common law defamation immunity extended to witnesses as

well as lawyers, see Briscoe v. LaHue, 460 U.S. 325 (1983), and to

private as well as public counsel. Yet the Court has not accorded

any immunity to private lawyers, or private individuals, who

instigate legal actions under color of state law. Wyatt v. Cole,

supra.

26

Neither of these decisions eliminated from the “spe-

cies of tort liability” created by Congress in §1983, Imbler

v. Pachtman, 424 U.S. at 417, a cause of action relating to

the violation of civil rights that was clearly recognized at

common law. In other cases, the Court has taken pains to

preserve those causes of action. Malley did so with regard

to suits for the false procurement of arrest warrants by

police officers, in recognition of their deep common law

roots. Malley v. Briggs, 475 U.S. at 340-343. Buckley v.

Fitzsimmons did so with regard to out-of-court defama-

tory statements and the pretrial fabrication of evidence,

functions it found lay outside a prosecutor’s traditionally

recognized “role as an advocate for the State.” 509 US. at

273.

In sum, the Court’s decisions in this area are true to

Congress’ language and presumed intent in enacting

§1983. With few if any exceptions, every person acting

under color of state law who causes another to be

deprived of constitutional rights, through conduct that

was civilly actionable in 1871, is subject to suit under this

federal law. Petitioner would have this Court change that.

There is no justification in history or precedent for doing

C. The Decisions of Lower Federal Courts.

Neither is it true, as Petitioner and her amici claim,

that the lower federal courts are in disagreement over the

issue presented here, and the decision below is aberra-

tional. In fact, all but one of the cases that have consid-

ered the specific conduct for which Petitioner was sued -

swearing an oath in support of an arrest warrant - have

27

reached the same conclusion as the courts below: that

such conduct is covered by qualified, rather than abso-

lute, immunity, whatever official engages in it.

Most of the lower court cases Petitioner cites

involved different kinds of conduct - truly prosecutorial,

advocative functions like those at issue in Imbler and

Burns. Typically, the claims in those cases involved chal-

lenges to decisions to file charges or seek warrants, or to

the presentation of the testimony of witnesses.22 Where,

as here, the claim is that the prosecutor himself acted as

the witness and swore falsely, most courts have found, as

did the court below, that the case is directly controlled by

22 See, e.g., Joseph v. Patterson, 795 F.2d 549, 555 (6th Cir.

1986) (absolute immunity for obtaining criminal complaints and

arrest warrants based on allegedly false statements from a

witness; “[t}he decision to file a criminal complaint and seek

issuance of an arrest warrant are quasi-judicial duties”); Lerwill

v. Joslin, 712 F.2d 435, 437-38 (10th Cir. 1983) (absolute immunity

for “acting as an advocate for the State,” “present[ing} . . .

arguments to a justice of the peace,” and “seeking a warrant

for . . . arrest”); Erlich v. Giuliani, 910 F.2d 1220, 1224 (4th Cir.

1990) (absolute immunity for preparing a seizure warrant);

Schrob v. Catterson, 948 F.2d 1402, 1413, 1417 (3rd Cir. 1991)

(absolute immunity for “the preparation of an application for

the search warrant” and for allegedly false statement in

colloquy during warrant application, citing “lawyers{’] . . .

absolute immunity at common law for making false and

defamatory statements in judicial proceedings”); Pefla v. Mattox,

84 F.3d 894, 896 (7th Cir. 1996) (absolute immunity for “drafting

or authorization of . . . criminal complaint [signed by the alleged

victim’s father] . . . procuring of the warrant” and requesting

bail increases and punishment conditions); Pinaud v. County of

Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (absolute immunity for

various alleged acts, including “misrepresentations,” but no

allegation of false swearing or procurement of an arrest).

28

Malley. In Kohl v. Casson, 5 F.3d 1141 (8th Cir. 1993), the

court agreed that a prosecutor is absolutely immune for

appearing before a judicial officer to present evidence or

argue the law in support of an arrest warrant, but none-

theless held:

[W]Jhere the prosecutor switches functions from

presenting the testimony of others to vouching,

of his own accord, for the truth of the affidavits

presented to the judicial officer, the prosecutor

loses the protection of absolute immunity and

enjoys only qualified immunity, just as the

police officer was held to have in Malley.

5 F.3d at 1146. Similarly, in Ireland v. Tunis, __ F.3d __

1997 WESTLAW 250434 (6th Cir., May 15, 1997), the court

gave absolute immunity to prosecutors’ decisign to seek

an arrest warrant, and their conduct in doing so - but

refused to extend that immunity to the swearing out of

warrant affidavits.

[W]hen a prosecutor or other official switches

from presenting “ oe peng rl se

vouching personall truth o con

of the document, oo believe the protection

afforded by absolute immunity must give way

to a qualified immunity inquiry. . . . Absolute

immunity at common law did not extend to

complaining witnesses who “set the wheels of

government in motion by instigating a legal

action.” Wyatt v. Cole, 504 U.S. 158, 164-65, 112

S.Ct. 1827, 118 L.Ed.2d 504 (1992)f see also Mal-

ley, 475 U.S. at 340-41, 342 (“We do not find a

comparable [common-law] tradition of absolute

immunity for one whose complaint causes a

warrant to issue”; “the generally accepted rule

29

was that one who procured the issuance of an

arrest warrant by submitting a complaint could

be held liable if the complaint was made mali-

ciously and without probable cause.” (footnote

omitted)). In Malley, the Supreme Court

observed that the action of an “officer applying

for a warrant . . . while a vital part of the

administration of criminal justice, is further

removed from the judicial phase of criminal pro-

ceedings than the act of a prosecutor in seeking

an indictment.” Malley, 475 U.S. at 342-43. For

these reasons, we believe that the only level of

protection from suit that is potentially available

when an official vouches for the truth of the

contents of a criminal complaint is qualified

immunity.

Id. at *12 (footnote and citations omitted).

The only contrary Circuit decision is the one that

brought this case here, Roberts v. Kling, 104 F.3d 316 (10th

Cir. 1997). Ironically, Roberts (like Ireland) involved not a

prosecutor but “an investigator for the district attorney's

office”. 104 F.3d at 318. The Court in Roberts nonetheless

found the case distinguishable from Malley, saying “the

policy decisions underlying a grant of immunity focus on

the function or role an individual fulfills in performing

certain acts, not on the acts alone” (104 F.3d at 321),

without ever identifying any respect in which the defen-

dant investigator’s actions, or their function, differed

from those of the defendant police officer in Malley. It is

Roberts, not this case, that is confused and inconsistent

with this Court’s precedents.

30

IV. THERE IS NO GOOD REASON TO EXTEND

ABSOLUTE IMMUNITY TO PROSECUTORS

WHO ACT AS COMPLAINING WITNESSES.

This Court has repeatedly said that the scope of

absolute immunity from civil rights suits is not subject to

“freewheeling policy choice[s].” Buckley v. Fitzsimmons,

509 U.S. at 268; quoting Malley v. Briggs, 475 U.S. at 342.

See Wyatt v. Cole, 504 U.S. at 170 (concurring opinion of

Justice Kennedy). Despite that, Petitioner and her fellow

prosecutor/amici repeatedly raise the specter of crippled

law enforcement in the hope of persuading the Court to

expand their power to incarcerate citizens without fear of

legal recourse.* At best, their arguments appear to be

based in a misunderstanding, or a distrust, of the narrow

scope of the decisions below. At worst, they are seriously

exaggerated. There are many answers to their purported

concerns.

1. The most obvious reason the decision below

poses no threat to prosecutors is that there is no need for

prosecutors to act as complaining witnesses, and few do.

As the Solicitor General acknowledges, “federal prosecu-

tors typically do not personally attest to the facts set forth

in a complaint . . . or in an affidavit filed in support of an

application for an arrest warrant... .” Brief for the

United States as Amicus Curiae at 7. Neither do prosecu-

tors in most jurisdictions, as far as we can ascertain. See

note 12, above. Even Washington law does not require

23 See Petitioner's Brief at 25-29; Brief for the United States

as Amicus Curiae at 21-24); Brief of the Washington Counties at

10-13; Brief of National District Attorneys Association at 9-10;

Brief of National Association of Counties, et al., at 20-27.

31

this function to be performed by a prosecutor. See page

20-21, above; JA 27.

There is no legal reason that prosecutors cannot leave

this function to the police, who have traditionally per-

formed it. It would not even constitute a serious adminis-

trative inconvenience for them to do so: As the record

here demonstrates (see note 1, above), sworn police

reports are routinely available to prosecutors, and can

themselves be easily submitted to the court for its inde-

pendent review. Utilizing police reports thus carries little

if any cost, preserves intact the prosecutor’s absolute

immunity, and has the beneficial effect of reducing the

chance of error through miscommunication and provid-

ing the innocent citizen with legal recourse in the event of

knowing falsehood. That is a far cry from the doomsday

scenario portrayed by Petitioner and some of her amici.

2. Prosecutors who for some reason don’t wish to

rely on the police can still avoid liability by utilizing a

summons procedure such as that authorized by Wash.

CrR 2.2(b), rather than an arrest warrant, to obtain juris-

diction over a criminal defendant. Although the law on

this is not settled, it appears that allegations of abuse of

the summons process do not support a claim under

§1983. Albright v. Oliver, 510 U.S. 266 (1994).

3. Even if prosecutors choose to have defendants

arrested and to act as the complaining witnesses, their

amenability to lawsuits for abuses in that role should

cause little distraction from their duties. Unlike a lawsuit

which challenges a charging decision or the conduct of a

trial, a lawsuit alleging false statements in an arrest war-

rant affidavit is, by its nature, focused and specific; such

32

suits pose scant threat of becoming “a virtual retrial of

the criminal offense in a new forum. ... ” Imbler vo.

Pachtman, 424 U.S. at 425.

Nor are such lawsuits likely to be common, if prose-

cutors act responsibly. The experience in Washington

state, where prosecutors have prepared certificates of

probable cause for decades (see Brief of 39 Washington

Counties at 2-3), bears this out: this is the only such case

ever reported. Nationally, there is only one other reported

case (Kohl) involving a prosecuting attorney‘ sued feder-

ally for performing this function.

It is inconceivable that such an attenuated threat of a

lawsuit — a lawsuit in which they will enjoy the protection

of qualified immunity - will significantly impede or dis-

tract prosecutors who choose to expose themselves to that

threat by performing this function. That is particularly so

because the function at least theoretically carries with it

the potential penalty of perjury, and disciplinary action®

- in addition to the risk of losing a case and freeing a

guilty defendant - for knowing abuse. It is simply not

credible to argue that fear of lawsuits like this one justi-

fies an exception to the usual assumption that qualified

immunity provides ample protection for conscientious

officials. See Malley v. Briggs, 475 U.S. at 341.

24 The other two reported federal decisions addressing this

issue, Roberts and Ireland, involved prosecutors’ investigators.

See page 29, above.

25 See RCW 9A.72.040 (false swearing); Washington Rule of

Professional Conduct 3.3 (candor toward tribunals).

33

4. On the other hand, extending absolute immunity

to prosecutors who take on the role of witnesses, as well

as advocates, would set a truly dangerous precedent for

citizens. It would give innocent people who are wrong-

fully seized and jailed no realistic legal recourse,26 for

even flagrant abuses of power. In principle, it seems a

huge risk of freedom to give executive officials the power

both to state the facts as a witness and to argue the law as

7° The arguments of Petitioner’s amici regarding the

efficacy of other methods of control of prosecutorial abuses (e.¢.,

Brief of the United States at 23-4, Brief of the National

Association of Counties at 24) blink reality. The reality is

reflected in this case: although Ms. Kalina plainly made false

statements under oath in a document filed with the court, she

has been subjected to no discipline and the responsible

prosecuting attorney’s office (her own) is defending her, not

prosecuting her. That is hardly sugprising. We have not found a

single reported Washington case of bar discipline or criminal

prosecution for acts of prosecutorial misconduct.

Moreover, it is worth noting that the differences between

prosecutors, private lawyers, and police, with regard to

professional regulation, see Imbler v. Pachtgnan, 424 U.S. at 429

n.30, have narrowed in the decades since Imbler. Private lawyers

are no less subject to bar discipline, and court sanctions, than

are prosecutors, and are certainly more likely to be prosecuted

for criminal conduct in relation to their practices; but they are

afforded no immunity from Section 1983 liability at all. Wyatt v.

Cole, supra. In recent years police officers have commonly

become subject to administrative review and discipline as well.

See Seattle Police Department Manual of Policies and

Procedures § 1.09; “Citizen Review of the Police, 1994: A

National Survey,” Police Executive Research Forum, January,

1995. Yet, under Malley, they are entitled only to qualified

immunity for the conduct engaged in by Petitioner here.

34

an advocate for revocation of a citizen’s liberty,” and

exempt them from liability for any manner of abuse in so

doing. It surely does not counsel in favor of taking that

risk that, in fact, this unchecked power would be given to

some 2,350 prosecutors’ offices nationwide, staffed by

untold thousands of overworked and undersupervised

government lawyers. See Brief of National District Attor-

neys Association at 9-10.

Certainly, there is no reason to believe that was the

policy choice of the Congress of 1871. Its choice was to

provide citizens like Rodney Fletcher legal recourse

against “every person” who caused them to be denied

their constitutional rights under color of state law. Nei-

ther precedent nor policy justifies an exception to that

rule here.

27 See generally Y. Feofanov, Pourncs aNnp Justice In Russia:

Major TRIALS OF THE Post Stauiw Era (Barry Trans. 1996).

35

CONCLUSION

The decisions below should be affirmed.

Respectfully submitted,

*Tovotny K. Forp

Rosert S. MAHLER

Dante, Hoyt Smrry

MacDonatp, Hoacue & BAyLess

705 2nd Avenue, Suite 1500

Seattle, WA 98104

(206) 622-1604

Brapy R. JOHNSON

123 N.W. 36th Street, Suite 240

Seattle, WA 98107

(206) 548-9050

Attorneys for Respondent

"Counsel of Record