Amicus Curiae Brief — Kalina v. Fletcher

Supreme Court, U.S. |

OCTOBER TERM, 1996

~

LYNNE KALINA,

. Petitioner,

RODNEY FLETCHER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

— ee nO

3

QUESTION PRESENTED

Whether a prosecutor is entitled to absolute immu

nity in a suit under 42 U.S.C. § 1983 for her conduct

in seeking an arrest warrant for the purpose of bring-

ing a criminal defendant before the court.

TABLE OF AUTHORITIES ....

INTEREST OF THE AMICI CURIAE ......................

STATEMENT 8 — aT

A PROSECUTOR IS ENTITLED TO ABSOLUTE

IMMUNITY FOR SEEKING AN ARREST WAR-

RANT IN ORDER TO COMPEL A CRIMINAL

DEFENDANT TO ANSWER CHARGES...

A. Under Imbler, A Prosecutor Is Entitled To

Absolute Immunity For Her Conduct In Initiat-

ing A Criminal Prosecution ...................0.0.......

B. Absolute Immunity For Procuring An Arrest

Warrant To Obtain The Presence Of A Person

Charged With A Crime Is Necessary To Prevent

Impairment Of The Criminal Justice System

EE EL

- (tii)

Page

iv

20

*

iv

TABLE OF AUTHORITIES

Cases Page

Barr v. Abrams, 810 F.2d 358 (2d Cir. 1987) 13

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

Burke v. Ryan, 36 La. Ann. 951 (188) 20

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

Crosby v. United States, 506 U.S. 255 (1993) 2,14

Ehrlich v. Giuliani, 910 F.2d 1220 (4th Cir. 1990) 13

Gerstein v. Pugh, 420 U.S. 103 (1975) 23, 24

Griffith v. Slinkard, 44 N. E. 1001 (Ind. 1896) ....18, 19,

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 23-24

Hart v. Barter, 47 Mich. 198 (1881777: 20

Illinois v. Allen, 397 U.S. 387 (197ö0h: 14

Illinois v. Gates, 462 U.S. 213 (1983) 23

Imbler v. Pacht man, 424 U.S. 409 (19765 passim

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

cert. denied, 481 U.S. 1028 (1987F 777 1 13

Kemper v. Fort, 219 Pa. 85 (1907) 8 20

Lerwill v. Joslin, 712 F.2d 485 (10th Cir. 1983) 5, 13

Lewis v. United States, 146 U.S. 370 (18925 14

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

Maulsby v. Reifenider, 69 Md. 143 (1888) 20

Mireles v. Waco, 502 U.S. 9 (19917) 4, 11-12

Pena v. Mattoz, 84 F.3d 894 (7th Cir. 1998) 18

Pierson v. Ray, 386 U.S. 547 (1967) 25

Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997) 12

Snyder v. Massachusetts, 291 U.S. 97 (1934) ........ 14

State v. Knapstad, 107 Wash.2d 346 (19868) 25

Tenney v. Brandhove, 341 U.S. 367 (19517 9

United States v. Gagnon, 470 U.S. 522 (1985) 14

Wyatt v. Cole, 504 U.S. 158 (199277 18

Yaselli v. Goff, 275 U.S. 508 (19277777 7

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

I —“U“»—T 18, 19

Statutes and Rules

— 7, 25

CN 17

NER 15

Wash. Rev. Code § 36.27.020(6) —................... 13

Wash. Rules of Professional Conduct (1996) 25

*

TABLE OF AUTHORITIES—Continued

Other Authorities Page

Sara S. Beale & William C. Bryson, Grand Jury

Law and Practice (198) 22

Bureau of Justice Statistics, Felony Defendants in

Large Urban Counties, 1992 (1998) 24

Thomas M. Cooley, The Elements Of Torts (1895) .. 19

Wayne R. LaFave & Jerold H. Israel, Criminal

Procedure (Sth ed. 19840 25

W. Mikell, Clark’s Criminal Procedure (2d ed.

1 14

William L. Prosser, Handbook of the Law of Torts

ee on ea 5, 17, 19, 20

William Wait, Actions and Defenses (1888) 19-20

IN THE

Supreme Cmut of the Anited States

OCTOBER TERM, 1996

No. 96-792

LYNNE KALINA,

V.

RODNEY FLETCHER,

Respondent.

Petitioner,

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials

throughout the United States, have a strong interest

in legal issues that affect state and local governments.

2

One of the core functions of state and local govern-

ments is the enforcement of the criminal law through

the office of the public prosecutor.

The public prosecutor serves a central role in the

administration of criminal justice. As the State’s

advocate, “[a] prosecutor is duty bound to exercise

his best judgment both in deciding which [cases] to

bring and in conducting them in court.” Imbler v.

Pachtman, 424 U.S. 409, 424 (1976). Public prosecu-

tors, however, “[f]requently act[] under serious con-

straints of time and even information” as they are

routinely “responsible . . for hundreds of indict-

ments and trials.” Id. at 425-26. Both the common

law and this Court have thus recognized that public

prosecutors are entitled to absolute immunity for

their role in initiating and conducting a prosecution.

Id. at 421-31.

The conduct at issue here, involving a prosecutor’s

act of seeking an arrest warrant to secure the pres-

ence in court of a person formally charged with a

crime, is fully within the scope of the absolute im-

munity previously recognized by the common law and

this Court. A felony prosecution cannot go forward

without the presence of the accused. See Crosby v.

United States, 506 U.S. 255, 259 (1993). Seeking an

arrest warrant for the purpose of compelling a de-

fendant to appear in court and answer criminal

charges is thus as integral to the initiation and con-

duct of a prosecution as is filing an information or

seeking an indictment. The court of appeals’ holding

that this conduct is not within the scope of absolute

immunity would have as harmful an impact on the

administration of criminal justice as would denying

3

prosecutors’ absolute immunity for the conduct at

issue in Imbler.

Because the court of appeals’ holding has serious

consequences for the administration of criminal jus-

tice, amici submit this brief to assist the Court in its

resolution of this case.’

STATEMENT

Amici adopt petitioner’s statement.

SUMMARY OF ARGUMENT

1. This Court has “held that prosecutors are ab-

solutely immune for their conduct in ‘initiating a

prosecution and in presenting the State’s case,’ inso-

far as that conduct is ‘intimately associated with the

judicial phase of the criminal process.’” Burns v.

Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v.

Pachtman, 424 U.S. 409, 430-31 (1976)). The scope

of prosecutorial immunity established by this Court’s

precedents fully encompasses Kalina’s conduct in

seeking an arrest warrant in conjunction with the

initiation of a criminal prosecution against Fletcher.

In its analysis of prosecutorial immunity in Imbler,

the Court carefully examined the common law, which

has long held that prosecutors, like judges and grand

jurors acting within the scope of their duties, have

absolute immunity for their role in initiating and

conducting a prosecution. 424 U.S. at 421-24. The

common law immunity of prosecutors is founded on

the “concern that harassment by unfounded litigation

would cause a deflection of the prosecutor’s energies

The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been

filed with the Clerk of the Court.

4

from his public duties, and the possibility that he

would shade his decisions instead of exercising the in-

dependence of judgment required by his public trust.”

Id. at 423. Imbler held that these concerns “dictate

the same absolute immunity under § 1983 that the

prosecutor enjoys at common law.” Id. at 427.

The court of appeals ignored these controlling prin-

ciples and erroneously analogized Kalina’s conduct to

that of a police officer seeking an arrest warrant in

connection with an investigation, who is entitled only

to qualified immunity. See Malley v. Briggs, 475 U.S.

335 (1986). While ostensibly invoking this Court's

“ ‘functional’ analysis,” J.A. 25, the court of appeals

overlooked that “the relevant inquiry is the ‘nature’

and ‘function’ of the act, not the act itself.. Mireles

v. Waco, 502 U.S. 9, 18 (1991) (per curiam) (cita-

tion omitted). The function served by Kalina’s mo-

tion for an arrest warrant was not the same as the

function served by the arrest warrants in Malley.

The Malley warrants were sought as part of a

criminal investigation; when the State presented the

case to the grand jury it refused to return an indict-

ment. In contrast, Kalina’s purpose in preparing the

certification in support of her motion for an arrest

warrant was to compel Fletcher to appear in court

to respond to the formal charges that had been filed

against him. The information filed by Kalina did not

compel Fletcher’s presence in the courtroom. Because

fundamental principles of criminal justice generally

forbid trial in absentia, the filing of the motion for

an arrest warrant and certification was an essential

step in the commencement of the prosecution. The

warrant and the underlying certification were thus an

integral part of the initiation of the prosecution and

5

were in every sense “intimately associated with the

judicial phase of the criminal process.” Imbler, 424

U.S. at 430; Lerwell v. Joslin, 712 F.2d 435, 437-38

(10th Cir. 1983).

Fletcher erroneously contends that Kalina’s chal-

lenged conduct arose out of her acting as a “complain-

ing witness” in the same manner as a police officer

or any citizen. As a prosecutor, Kalina was vested

by state law with authority to determine whether

complaints filed by citizens or police officers warranted

the filing of criminal charges by the State. Thus, in

preparing and filing her certification, Kalina was

functioning as a “quasi-judicial officer,” Imbler, 424

U.S. at 423 n.20, who is entitled to absolute immunity.

Although Fletcher suggests otherwise, see Opp. 14-

18, there is an additional common law doctrine that

supports immunity for Kalina in this case—the well-

settled privilege of an attorney for conduct occurring

during the course of judicial proceedings. This com-

mon law privilege covers “anything that may be said

in relation to the matter at issue, whether it be in the

pleadings, in affidavits, or in open court.” William

L. Prosser, Handbook of the Law of Torts § 94, at

824 (1941) (citations omitted). It immunizes Kalina

from suit at common law for allegedly making “false

statements about Rodney Fletcher, with reckless dis-

regard for the truth, knowing that her certification

would result in Mr. Fletcher’s arrest and prosecu-

tion.“ J.A. 5 (Complaint 73.3). The common law

tradition thus supports absolute immunity for Kalina’s

acts in preparing and filing the probable cause

certification.

2. The Imbler Court supported its holding not only

by an analysis of the common law of prosecutorial

6

immunity, but also by its conclusion that the “con-

siderations of public policy that underlie the common-

law rule likewise countenance absolute immunity

under § 1983.” 424 U.S. at 424. The same considera-

tions of public policy that led to Imbler’s holding that

absolute immunity was available to the prosecutor in

that case support the recognition of absolute immunity

for a prosecutor’s act of seeking an arrest warrant

in conjunction with the filing of criminal charges.

Just as the Court recognized in Imbler, denying

Kalina absolute immunity would expose prosecutors

to burdensome and distracting lawsuits. Subjecting

prosecutors to suit for seeking a warrant in conjunc-

tion with the filing of charges would divert their

time and attention “from the pressing duty of en-

forcing the criminal law.” 424 U.S. at 425. As

long as a suspect was not in custody at the time the

prosecution was initiated, every prosecutor who failed

to obtain a conviction would bear a substantial risk

of being sued for her conduct in seeking a warrant.

Not only would such litigation adversely affect the

way in which prosecutors allocate their time, it would

pressure prosecutors to engage in self-protective be-

havior antithetical to the fearless discharge of their

responsibilities. Jd. at 423-24.

While respondent’s argument is couched in terms

of Kalina’s alleged “false statements” made “with

reckless disregard for the truth,” J.A. 5, the impact

of an affirmance of the court of appeals would not be

limited to such cases. Denying prosecutors absolute

immunity for seeking arrest warrants in conjunction

with the filing of criminal charges would subject them

to suit simply for making mistakes in evaluating

police files. This is of no small moment given both

7

the large number of prosecutions that end in dis-

missal or acquittal and the fact that “a defendant

often will transform his resentment at being prose-

cuted into the ascription of improper and malicious

actions to the State’s advocate.” Imbler, 424 U.S. at

425.

Other mechanisms exist to protect against the

potential abuse of prosecutorial powers in filing for

arrest warrants. Not only did Kalina, pursuant to

state law, attest to the truthfulness of the assertions

in her certification “[u]nder penalty of perjury,”

J.A. 20, prosecutors are subject to criminal prosecu-

tion under 18 U.S.C. § 242 for willful deprivations

of constitutional rights. In addition, all prosecutors

are subject to bar discipline for violating the rules of

professional conduct. See Imbler, 424 U.S. at 429.

“These checks undermine the argument that the im-

position of civil liability is the only way to insure

that prosecutors are mindful of the constitutional

rights of persons accused of crime.” Id.

ARGUMENT

A PROSECUTOR IS ENTITLED TO ABSOLUTE IM-

MUNITY FOR SEEKING AN ARREST WARRANT IN

ORDER TO COMPEL A CRIMINAL DEFENDANT TO

ANSWER CHARGES

This Court has long recognized that “prosecutors

are absolutely immune for their conduct in ‘initiating

a prosecution and in presenting the State’s case,’

insofar as that conduct is ‘intimately associated with

the judicial phase of the criminal process.’” Burns

v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler

v. Pachtman, 424 U.S. 409, 430-31 (1976) ); see also

Yaselli v. Goff, 275 U.S. 503 (1927) (per curiam).

The Court has further explained that the prosecutor’s

absolute immunity extends to “‘the duties of the

prosecutor in his role as advocate for the State [and]

involve[s] actions preliminary to the initiation of a

prosecution and actions apart from the courtroom.

Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993)

(quoting Imbler, 424 U.S. at 431 n.33).

The court of appeals ignored these precedents. In-

stead, it relied on Malley v. Briggs, 475 U.S. 335

(1986), which rejected a police officer’s claim that he

was entitled to absolute immunity for seeking an

arrest warrant during the course of a criminal in-

vestigation. According to the court of appeals,

“Kalina’s actions in writing, signing and filing the

declaration for an arrest warrant are virtually iden-

tical to the police officer’s actions in Malley.” J.A. 27.

Failing to consider the function served by the warrant

which Kalina sought, the court concluded that “[t]o

hold that Kalina is absolutely immune for perform-

ing the same task would be inconsistent with the

Court’s functional analysis.” Id.

As explained below, the court of appeals erred in

disregarding this Court’s precedents clearly estab-

lishing that Kalina is absolutely immune for seeking

an arrest warrant in order to compel Fletcher's

appearance in court to answer criminal charges.

Where, as here, a warrant is sought as part of the

initiation of a criminal prosecution, a prosecutor is

entitled to absolute immunity; Malley is not con-

trolling. To hold otherwise would have grave conse-

quences for the administration of criminal justice.

The Court should therefore reverse the judgment

below.

9

A. Under Imbler, A Prosecutor Is Entitled To Absolute

Immunity For Her Conduct In Initiating A Criminal

Prosecution

Notwithstanding its “literal sweep,” Section 1983

did not abrogate those immunities which are “ ‘well

grounded in history and reason.“ Imbler, 424 U.S.

at 417-18 (quoting Tenney v. Brandhove, 341 U.S.

367, 376 (1951)). In determining whether an official

is entitled to immunity, the Court conducts “a con-

sidered inquiry into the immunity historically ac-

corded the relevant official at common law and the

interests behind it.” Jd. at 421.

In Imbler the Court extensively examined the

common law of prosecutorial immunity. See 424 U.S.

at 421-24. As the Court explained, the common law

deemed prosecutors to be quasi-judicial officers who

were entitled to absolute immunity for their role in

initiating and conducting a criminal prosecution. See

id. Moreover, the Court concluded that “the same

considerations of public policy that underlie the

common-law rule likewise countenance absolute im-

munity under § 1983.” Jd. at 424.

As the Court recognized, a public prosecutor’s du-

ties are unique. A prosecutor is routinely assigned

a large caseload and “inevitably makes many deci-

sions that could engender colorable claims of consti-

tutional deprivation” in initiating and conducting

a criminal prosecution. Jd. at 425. Because “a de-

fendant often will transform his resentment at being

prosecuted into the ascription of improper and mali-

cious actions to the State’s advocate,” suits against

prosecutors “could be expected with some frequency”

and “could impose unique and intolerable burdens

upon a prosecutor responsible annually for hundreds

10

of indictments and trials.” Jd. at 425-26. As the

Court noted, “[t]he public trust of the prosecutor’s

office would suffer” and prosecutors’ “energy and

attention would be diverted from the pressing duty

of enforcing the criminal law” if they were not en-

titled to absolute immunity for their conduct in ini-

tiating and conducting a prosecution. Id. at 424-25.

The Court further explained that “affording .. .

only a qualified immunity to the prosecutor also could

have an adverse effect upon the functioning of the

criminal justice system.” Jd. at 426. Absolute im-

munity is essential to the criminal justice system’s

“goal of accurately determining guilt or innocence” ;

it encourages the prosecutor to present relevant evi-

dence to the trier of fact. Jd. Moreover, absolute

immunity benefits criminal defendants in that I t] he

possibility of personal liability also could dampen

the prosecutor’s exercise of his duty to bring to the

attention of the court or of proper officials all signifi-

cant evidence suggestive of innocence or mitigation.”

Id. at 427 n.25. Finally, the Court recognized that

absolute immunity ensures that the focus of post-

trial review will “not be blurred by even the sub-

conscious knowledge that a post-trial decision in favor

of the accused might result in the prosecutor’s being

called upon to respond in damages for his error or

mistaken judgment.” Id. at 427.

Imbler thus held “that in initiating a prosecution

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

immune from a civil suit for damages under § 1983.”

Id. at 431. This immunity is absolute and extends

to all those activities which are “intimately associated

with the judicial phase of the criminal process,” id.

at 430, and includes “actions preliminary to the ini-

11

tiation of a prosecution and actions apart from the

courtroom.” Id. at 431 n.33.

Subsequent to Jmbler the Court has held that a

prosecutor is entitled only to qualified immunity for

“administrative duties and those investigatory func-

tions that do not relate to an advocate’s preparation

for the initiation of a prosecution or for judicial pro-

ceedings.” Buckley, 509 U.S. at 273. The Court,

however, has steadfastly adhered to its holding in

Imbler. See id.; see also Burns, 500 U.S. at 487-92.

As the Court stated in Buckley:

We have not retreated, however, from the prin-

ciple that acts undertaken by a prosecutor in

for the initiation of judicial proceed-

ings or for trial, and which occur in the course

of his role as an advocate for the State, are

entitled to the protections of absolute immunity.

509 U.S. at 273.

The court of appeals ignored these precedents. In-

stead, it reasoned that “Kalina’s actions in writing,

signing and filing the declaration for an arrest war-

rant are virtually identical to the police officer’s

actions in Malley,” and that “[t]o hold that Kalina

is absolutely »mmune for performing the same task

would be inconsistent with the Court’s functional

analysis.” J.A. 27.

The court of appeals’ reasoning is flawed. It errone-

ously assumes, without any analysis, that the pur-

poses served by the arrest warrant sought by the

police officer in Malley and the arrest warrant sought

by Kalina are the same. But as this Court has ex-

plained, “the relevant inquiry is the ‘nature’ and

‘function’ of the act, not the act itself. Mireles v.

12

Waco, 502 U.S. 9, 18 (1991) (per curiam) (quoting

Stump v. Sparkman, 435 U.S. 349, 362 (1978)). See

also Roberts v. Kling, 104 F.3d 316, 321 (10th Cir.

1997) (“[T]he acts themselves are not the focus

of the functional approach. Instead, we examine the

function a defendant’s acts serve.)

In Malley the Court rejected a police officer’s con-

tention that he was entitled to absolute immunity for

procuring arrest warrants during the course of a

criminal investigation. 475 U.S. 337-45. The arrest

warrants, however, were not sought following the

returning of an indictment or filing of an informa-

tion. Indeed, after the arrests of the respondents

in Malley, a grand jury refused to indict them. Id.

at 338. The case thus clearly involved conduct occur-

ring in the exercise of the investigative function.

As the Court explained in rejecting the officer’s anal-

ogy between himself and a prosecutor:

We intend no disrespect to the officer applying

for a warrant by observing that his action, while

a vital part of the administration of criminal

justice, is further removed from the judicial

phase of criminal proceedings than the act of a

prosecutor in seeking an indictment. Further-

more, petitioner’s analogy, while it has some

force, does not take account of the fact that the

prosecutor’s act in seeking an indictment is but

the first step in the process of seeking a

conviction.

475 U.S. at 342-43.

In contrast to the warrant at issue in Malley,

Kalina had filed a criminal information charging

Fletcher with a felony offense simultaneously with

seeking the arrest warrant. See J.A. 13. Her pur-

13

pose in preparing the certification for determination

of probable cause and filing for the warrant was to

compel Fletcher to respond in court to a formal

criminal charge. See id. at 14. Indeed, Kalina

would have been remiss in her duties under state

law if she had not procured a warrant. See Wash.

Rev. Code § 36.27.020(6). The warrant was thus

an integral part of the initiation of a criminal prose-

cution and was in every sense “intimately associated

with the judicial phase of the criminal process.”

Imbler, 424 U.S. at 430; see also Buckley, 509 U.S.

at 273 (“acts undertaken by a prosecutor in prepar-

ing for the initiation of judicial proceedings or for

trial, and which occur in the course of his role as an

advocate for the State, are entitled to the protections

of absolute immunity“).

As the Tenth Circuit has explained:

[A] prosecutor’s seeking an arrest warrant is

too integral a part of his decision a

be futile. Thus, a prosecutor’s seeking a warrant

for the arrest of a defendant against whom he

Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983).

See also Pena v. Mattox, 84 F.3d 894, 896 (7th Cir.

1995); Barr v. Abrams, 810 F.2d 358, 362 (2d Cir.

1987); Joseph v. Patterson, 795 F.2d 549, 555-56

(6th Cir. 1986), cert. denied, 481 U.S. 1023 (1987);

ef. Ehrlich v. Giuliani, 910 F.2d 1220, 1223-24 (4th

Cir. 1990).

14

To hold otherwise is to ignore the most fundamental

principles of the criminal justice system. A leading

principle that pervades the entire law of criminal

procedure is that, after indictment found, nothing

shall be done in the absence of the prisoner.” Lewis

v. United States, 146 U.S. 370, 372 (1892). The

Confrontation Clause of the Sixth Amendment gen-

erally guarantees “the accused’s right to be present

in the courtroom at every stage of his trial,” Illinois

v. Allen, 397 U.S. 337, 338 (1970), and the Due

Process Clause provides a criminal defendant with

the “right to be present at a proceeding ‘whenever

his presence has a relation, reasonably substantial, to

the fullness of his opportunity to defend against the

charge“ United States v. Gagnon, 470 U.S. 522,

526 (1985) (quoting Snyder v. Massachusetts, 291

U.S. 97, 105-06 (1934) ). As a general matter, funda-

mental principles of criminal justice forbid trial in

absentia. See Crosby v. United States, 506 U.S.

255, 259 (1993) (“It is well settled that . at

common law the personal presence of the defendant

is essential to a valid trial and conviction on a charge

of felony. . . . If he is absent . . a conviction will

be set aside.”) (quoting W. Mikell, Clark’s Criminal

Procedure 492 (2d ed. 1918) ).

Moreover, neither the seeking and returning of an

indictment nor the filing of an information compels

the physical presence of a criminal defendant in court

to answer the charge. As the Court noted in Malley,

the act of obtaining an indictment or filing an infor-

mation “is but the first step in the process of seeking

a conviction.” 475 U.S. at 343. Ancillary to the

process of seeking a conviction is the act of obtaining

the presence of the defendant in court for purposes of

tion of the criminal justice system.

That under Washington law [a] defendant’s pres-

ence can be obtained by summons as well as by

arrest,” Opp. at 10 n.5, does not alter the nature of

defendant’s presence either because the defendant has

moved and does not receive it or chooses to ignore it.

Thus, in many instances the prosecutor may have

no choice but to seek the issuance of an arrest warrant

if the State’s case is to go forward.“ The decision

whether an accused poses a danger to others or is

unlikely to respond to a summons is surely one which

is committed to the prosecutor’s discretion. And in

preparing the necessary documents and appearing

before a magistrate in order to obtain a warrant for

the arrest of a person charged with a serious crime,

In this case, the King County prosecutor repeatedly at-

tempted to inform Fletcher by letters of the pending charges

and the date of his arraignment. The warrant was executed

nine months after its issuance and only after these letters did

not result in Fletcher’s appearance. J.A. 6, 12.

16

a prosecutor is engaged in classic advocacy on behalf

of the State. Cf. Burns, 500 U.S. at 491 (“appearing

before a judge and presenting evidence in support

of a motion for a search warrant .. . clearly involve

the prosecutor’s ‘role as advocate for the State“)

(quoting Imbler, 424 U.S. at 430-31).

Ignoring Kalina’s function in filing for the arrest

warrant, respondent instead asserts that her action-

able conduct arose out of her “acting as a complain-

ing witness.” Opp. at 8. According to respondent,

the certification “could as easily have been performed

by ‘a police officer or complaining witness.’” Id.

(quoting Pet. App. 6a). Respondent further states

that [ulnder Washington law, any citizen can be

a complaining witness,” and that [the nature of

the ‘conduct’ at issue here—swearing to facts as a

complaining witness—does not change according to

the witness’ official title.” Jd. at 12-13. See also Opp.

at 4 (in preparing the probable cause certification,

Kalina “took on a distinct role . . of a ‘complainant’

or ‘witness’ ).“

o Respondent’s assertion that Kalina acted as a “complain-

ing witness” is mistaken. In preparing the probable cause

certification, Kalina was merely relating the statements of

others as contained in the police report; she did not profess

to have first-hand knowledge of the facts set forth in the

certification and would not have tes dd either at the warrant

hearing or in a subsequent trial. See Pet. App. 17a (opening

sentence of the certification) (“Lynn Kalina is a Deputy

Prosecuting Attorney and is familiar with the police

report and investigation conducted in Seattle Police Depart-

ment case No. 92-334054; . . . this case contains the following

upon which this motion for the determination of probable

cause is made.“)

Relating the statements of others in a court filing in order

to persuade a tribunal to rule the desired way is, of course,

17

This argument is flawed. It ignores that in apply-

ing for the warrant, Kalina did not stand in the same

shoes as “any citizen” or a police officer. As the

Court recognized in Imbler, the common law deemed

a public prosecutor to be a “quasi-judicial officer”

required to exercise discretion and independent judg-

ment in determining whether to charge a person with

a crime. See 424 U.S. at 423 n.20; see also Malley,

475 U.S. at 342-43. The Court endorsed this view in

holding that the prosecutor’s immunity as a quasi-

judicial officer extended to Section 1983 actions. See

Imbler, 424 U.S. at 424-29. As a public prosecutor,

Kalina was vested by state law with authority to

determine whether the complaints filed by “any citi-

classic advocacy. It is functionally indistinguishable from a

lawyer’s “making false or defamatory statements in judicial

proceedings” or “eliciting false and defamatory testimony

from witnesses,” conduct which is absolutely immune under

the common law and § 1983. Burns, 500 U.S. at 489-90. More-

over, the common law immunity extends to written statements

as well. As a leading authority explains, the immunity covers

“anything that may be said in relation to the matter at issue,

whether it be in the pleadings, in affidavits, or in open court.”

William L. Prosser, Handbook of the Law of Torts § 94, at

824 (1941) (citations omitted).

That Kalina certified that the statements made in the proba-

ble cause certification were “true and correct,” Pet. App. 18a,

does not demonstrate that she acted as a witness rather than

the State’s advocate. Lawyers routinely certify that the state-

ments contained in the documents they file are correct; these

acts do not transform them from advocates to witnesses.

Cf. Fed. R. Civ. P. 11 (“[{b]y presenting to the court (whether

18

zen” or a police officer warrant the initiation of

formal criminal charges. It is thus disingenuous to

suggest that Kalina acted in the same functional

capacity as “any citizen” or a police officer in pre-

paring and filing the documents necessary to effec-

tuate Fletcher’s arrest. Cf. Wyatt v. Cole, 504 U.S.

158, 164-65 (1992) (“although public prosecutors and

judges were accorded absolute immunity at common

law, such protection did not extend to complaining

witnesses who [as private parties] set the wheels of

government in motion by instigating a legal action“)

(citation omitted). Denying absolute immunity for

this conduct, which is so “intimately associated” with

the initiation of à criminal prosecution that without

it the case cannot go forward, would circumvent

Imbler.“

The court of appeals also asserted that Buckley supported

its holding that Kalina is not entitled to absolute immunity,

presumably relying on the portion of the opinion discussing a

prosecutor’s immunity for conduct occurring while perform-

ing investigative functions. See J.A. 25-26; see also Buckley,

509 U.S. at 275 (“it would be anomalous . . to endow [prose-

cutors] with absolute immunity when conducting investiga-

tive work themselves in order to decide whether a suspect may

be arrested“)

Be that as it may, Kalina was not performing an investiga-

tive function when she sought Fletcher’s arrest. Rather, she

was engaged in the initiation of a criminal prosecution.

Whether or not probable cause actually existed to believe

Fletcher committed the crime is irrelevant; the absolute im-

munity recognized in Imbler encompasses claims that charges

have been initiated without probable cause. See 424 U.S. at

421-24 (discussing Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926),

affirmed, 275 U.S. 508 (1927) (per curiam), and Griffith v.

Slinkard, 44 N. E. 1001 (Ind. 1896)); see also Buckley, 509

U.S. at 275 n.5 (“we have found a common-law tradition of

19

Contrary to respondent’s suggestion, see Opp. at

14-18, Kalina can point to a common law tradition

demonstrating that her conduct is absolutely immune

—the well-settled immunity of the attorney for con-

duct occurring during the course of judicial proceed-

ings. As the Court observed in Burns, “prosecutors

and other lawyers were absolutely immune from dam-

ages liability at common law for making false or

defamatory statements in judicial p

and also for eliciting false and defamatory testimony

from witnesses.” 500 U.S. at 489-90. Moreover, the

common law immunity covers “anything that may be

said in relation to the matter at issue, whether it be

in the pleadings, in affidavits, or in open court.”

Prosser, supra, § 94, at 824 (citations omitted); see

also Thomas M. Cooley, The Elements Of Torts 69

(1895) (“Pleadings and other papers filed by parties

in the course of judicial proceedings are privileged;

and so are affidavits made for commencing proceed-

ings before magistrates, and the preliminary proceed-

ings and information taken or given for bringing

supposed guilty parties to justice.”) (footnotes

omitted); 7 William Wait, Actions and Defenses § 2,

immunity for a prosecutor’s decision to bring an indictment,

whether he has probable cause or not“).

It would thus be anomalous to hold that Kalina’s decision

to file charges is absolutely immune, but her companion deci-

sion to seek the issuance of an arrest warrant in order to

proceed with the prosecution of those charges is not. Indeed,

in both Griffith and Yaselli, which held that the prosecutors

were absolutely immune, the plaintiffs alleged that the prose-

cutor had, following the indictment, caused their arrests with-

out probable cause. See Griffith, 44 N.E. at 1002; Yaselli, 12

F. 2d at 397. Neither case differentiated between the prosecu-

tor’s conduct in obtaining the indictment and causing the

— Buckley thus does not support the court of appeals’

on.

20

at 437 (1885) The common law privilege thus fully

encompasses the allegations respondent offers as the

basis for his suit—that in the probable cause certifica-

tion, 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.” J.A. 5 (Complaint

43.3); see also id. at 5-6 (Complaint . 3.4-3.7) ;

Opp. at 1 (Mr. Fletcher’s allegation has always been

limited to Ms. Kalina’s separate and distinct action

in ‘prepar[ing] and fil ing] a Certification for De-

termination of Probable Cause.’”) (quoting Com-

plaint).

In preparing the probable cause certification and

filing it in court, Kalina functioned as an attorney

for the State. She is thus entitled to the same absolute

immunity which the common law has long conferred

on attorneys for their role in judicial proceedings.

See Burns, 500 U.S. at 489-91; Prosser, supra, § 94,

at 824. And as explained below, the policy consider-

ations which underlie the common law rule are

equally applicable to § 1983 actions.

B. Absolute Immunity For Procuring An Arrest Warrant

To Obtain The Presence Of A Person Charged With A

Crime Is Necessary To Prevent Impairment Of The

Criminal Justice System

Having determined that prosecutors were immune

under the common law for their role in initiating and

conducting a prosecution, the Imbler Court next con-

cluded that “the same considerations of public policy

that underlie the common-law rule likewise counte-

nance absolute immunity under § 1983.” 424 U.S.

5 See also Kemper v. Fort, 219 Pa. 85, 90 (1907) ; Maulsby

v. Reifsnider, 69 Md. 148 (1888) ; Burke v. Ryan, 36 La. Ann.

951 (1884); Hart v. Baxter, 47 Mich. 198 (1881).

21

at 424. The very reasons that led to Imbler’s conclu-

sion that absolute immunity applied to the prosecu-

tor’s conduct in that case support the recognition that

absolute immunity applies to a prosecutor’s act of

seeking an arrest warrant in conjunction with the

filing of criminal charges.

The Imbler Court first reasoned that given the

frequency with which criminal defendants could sue

prosecutors who had only qualified immunity, “the

threat of § 1983 suits would undermine [the prosecu-

tor’s] performance of his duties” by constraining the

prosecutor’s decision-making for fear of “his own

potential liability” and diverting his energy and at-

tention to defend against such suits. Jd. Second,

affording prosecutors only qualified immunity “could

have an adverse effect upon the functioning of the

criminal justice system” by, among other things,

limiting the prosecutor’s discretion in the presenta-

tion of evidence by exposing prosecutors to potential

civil liability for reliance on testimony later shown

to be untruthful. Id. at 426. Finally, It he ultimate

fairness of the operation of the system itself could be

weakened” by shifting the focus of post-trial proceed-

ings away from whether the accused has received a

fair trial to whether the prosecutor should be “called

upon to respond in damages for his error or mistaken

judgment.” Id. at 427. Each of these considerations

supports the conferral of absolute immunity on Kalina

for her conduct in seeking an arrest warrant.

First, and foremost, just as in Imbler, denying

Kalina absolute immunity would expose public prose-

cutors to burdensome and distracting lawsuits. While

some States still require that felony prosecutions be

initiated by grand jury indictment or may require

that prosecutions for certain types of felonies be ini-

22

tiated through indictment, a majority of the States

now allow for even felony prosecutions to be initiated

by information. See 1 Sara S. Beale & William C.

Bryson, Grand Jury Law and Practice § 6:37, at 220

(1986). Indeed, most criminal prosecutions are now

initiated by information or complaint. Moreover,

criminal suspects are frequently not in custody at the

time a prosecutor reviews a police investigation and

decides that charges should be filed.

Exposing public prosecutors to suit for seeking a

warrant upon deciding to file charges would thus

divert the time and attention of prosecutors “from

the pressing duty of enforcing the criminal law,”

Imbler, 424 U.S. at 425, to defending themselves

against potentially numerous lawsuits. So long as a

suspect was not in custody at the time the prosecution

was initiated, every prosecutor who fails to obtain a

conviction bears a substantial risk of being sued for

her conduct in seeking a warrant. Like the prosecutor

in this case, those who upon further review admit

that their initial charging decision was mistaken can

expect to be sued in every case.

Such suits will adversely affect the way in which

prosecutors allocate their time. Because the burdens

of discovery and trial are onerous, prosecutors will

* Respondent mistakenly asserts that there is “no factual

basis for Petitioner’s concern that the decision below will re-

sult in a flood of litigation.” Opp. at 24. That there have been

few suits challenging this type of prosecutorial conduct is a

reflection of the legal culture’s understanding of the scope of

prosecutorial immunity. See Imbler, 424 U.S. at 421-22 (dis-

cussing Griffith, 44 N.E. at 1002, which dismissed a false

arrest claim brought against a prosecutor). It is not an indi-

cator of the likelihood of such suits if the scope of the prose-

cutor’s absolute immunity is altered to allow them.

23

spend more time defending themselves in depositions

and trials and less time performing the vital function

of protecting the public by prosecuting criminal of-

fenders. Second, prosecutors will resort to various

mechanisms of self-protective behavior which are of

little benefit to society. One likely result is that prose-

cutors will present more cases to grand juries, not-

withstanding the time-consuming nature of such

proceedings, so that they can rely on the indictment

to shield them from liability for seeking an arrest

warrant. See Gerstein v. Pugh, 420 U.S. 103, 117

n.19 (1975) (citing Ex parte United States, 287 U.S.

241, 250 (1982) ).

To be sure, prosecutors could engage in the self-

protective device of “us[ing] the testimony of police

officers or other witnesses, instead of their own, to

support their warrant applications.” Opp. at 26. But

respondent’s suggestion that the use of such affidavits

would “insure a wrongly arrested citizen has recourse

for any deliberate or reckless falsehood,” id. at 27,

ignores the consequences of depriving prosecutors of

absolute immunity. If prosecutors were to use the

testimony of police and other witnesses to support

their warrant applications, it is a likely consequence

of the Ninth Circuit’s approach to functional analysis

that prosecutors would be sued for allegedly relying

upon insufficient affidavits or unreliable witnesses and

informants in seeking an arrest warrant. See, e. g.,

Malley, 475 U.S. at 344-45; Imbler, 424 U.S. at 426.

Cf. Illinois v. Gates, 462 U.S. 213 (1983). Prose-

cutors could also find themselves subject to suit for

having obtained arrest warrants on the basis of evi-

dence which was subsequently suppressed.

Moreover, even under the qualified immunity stand-

ard as reformulated in Harlow v. Fitzgerald, 457 U.S.

24

800 (1982), plaintiffs would frequently be able to

subject prosecutors to burdensome depositions. The

burden of defending themselves from such suits,

which are nothing more than a backhanded way to

subject prosecutors to liability for their otherwise

immune charging decisions, would, of course, be quite

onerous. As prosecutors’ offices are frequently under-

staffed and confronted with a deluge of criminal ac-

tivity, diverting their time, “energy and attention

from the pressing duty of enforcing the criminal

law,” Imbler, 424 U.S. at 425, would harm the public

interest in a most substantial way.

Respondent’s suggestion would sweep far more

broadly than providing recourse for the victim of a

“deliberate or reckless falsehood.” Opp. at 27. Deny-

ing prosecutors absolute immunity for seeking arrest

warrants in conjunction with the filing of criminal

charges would subject them to suit and the burden

of discovery simply for making mistakes in evaluating

or misreading police files. This is of no small moment

as 27% of felony cases result in dismissal or acquittal,

see Bureau of Justice Statistics, Felony Defendants in

Large Urban Counties, 1992 26 (Table 21) (1995),

and “a defendant often will transform his resentment

at being prosecuted into the ascription of improper

and malicious actions to the State’s advocate.” Imbler,

424 U.S. at 425.

Prosecutors are not infallible. The criminal justice

system, however, has established procedures to protect

an accused against unwarranted intrusions. These

include the Gerstein hearing to determine whether

probable cause exists to restrain a suspect’s liberty

pending trial, see Gerstein, 420 U.S. at 119-22, and

the preliminary hearing to determine whether prob-

called upon to respond in damages for his error or

mistaken judgment.” Imbler, 424 U.S. at 427; ef.

Pierson v. Ray, 386 U.S. 547, 554 (1967) (a judge’s

“errors may be corrected on appeal, but he should

not have to fear that unsatisfied litigants may hound

him with litigation charging malice or corruption”).

Moreover, other mechanisms exist to protect against

the potential abuse of prosecutorial powers in filing

for arrest warrants. Imbler, 424 U.S. at 428-29.

That prosecutors in Washington State attest to the

veracity of the statements contained in a probable

cause certification “under penalty of perjury,” J.A.

20, is itself a shield against abuse. See Imbler, 424

U.S. at 429. In addition, state prosecutors are subject

to criminal prosecution under federal law for “willful

deprivations of constitutional rights.” Id. (citing 18

U.S.C. § 242). Furthermore, as an attorney Kalina is

subject to bar discipline for the violation of the rules

of professional conduct. See Wash. Rules of Profes-

sional Conduct (1996). Indeed, “a prosecutor stands

perhaps unique, among officials whose acts could de-

prive persons of constitutional rights, in his amenabil-

ity to professional discipline by an association of his

peers.” Imbler, 424 U.S. at 429 & n.30. As Imbler

recognized, “[t]hese checks undermine the argument

that the imposition of civil liability is the only way

to insure that prosecutors are mindful of the constitu-

tional rights of persons accused of crime.” Id. at 429.

27

CONCLUSION

The judgment of the court of appeals should be

reversed.

April 25, 1997

Respectfully submitted,

RICHARD RUp *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

* Counsel of Record for the

Amici Curiae