Opposition Brief — Buonora v. Coggins

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DEC 6 - 2010

OFFIC EOF Vail Cul kK

No. 10-237 Lnctasupmmennneneutanatasered

Jn the Supreme Court of the GAnited States

CRAIG BUONORA.

Petitioner,

DARRYL TIT’. COGGINS

Respondent

On Petition for a Wnt of Certiorari to

the United States Court of Appeals for the

Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

JEFFREY A. MEYER CHARLES A. ROTHFELD

Yale Law School Counsel of Record

Supreme Court Clinic ANDREW J. PINCUS

127 Wall Street PAUL W. HUGHES

New Haven, CT 06511 MICHAEL B. KIMBERLY

(203) 432-4992 Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

Counsel for Respondent

{Additional counsel on inside cover}

FREDERICK K. BREWINGTON Scorr A. KORENBAUM

Law Offices of Frederick Law Offices of Scott A

K. Brewington Korenbaum

556 Peninsula Blvd lll broadway;

Hempstead, New Yor! Suite 1305

11550 New York, NY 1000

(516) 489-6959 919) 587-007

QUESTIONS PRESENTED

a policeman who conspired t

The petitioner

falsely arrest the respondent, fabricate evidencs

against him, and testify perjuriously before a grand

jury. Now confronting respondent's federal civil

inte)

rights lawsuit, petitioner seeks this Court

at the

locutory review of the lower courts’ decision

motion-to-dismiss stage that he is not entitled to ab

olute immunity under Briscoe v. LaHue, 460 U.S

325 (1983). The questions presented are

Whether the Court should grant interlocutor

review to consider whether the Briscoe rule of ab

lute immunity for trial testimony should extend té

an extra-judicial conspira present perjured

rand jury testimo!

Whether the Ce t should grant ter itor

iew to determine whether the district irt

rectly held it premature to de de it tne mol |

lism) tage, whether petitioner was a “complainu

{ tin

TABLE OF CONTENTS

QUESTIONS PR!

TATEMENT

REASONS FOR DENYING THE PET!

bTHIS CASE IS A POOR VEHICLE F*

REVIEW OF THE EXTRA-JUDICIAI

CONSPIRACY EXCEPTION BECAI

RESOLUTION OF THE ISSUE WILI

NOT DETERMINE PETITIONER

ENTITLEMENT TO IMMUNITY

ontinued Litigation Regard

Complaining Witne ic W 4

iry Regardl Of Th

|) DO ition Of} Phe Petit)

TABLE OF CONTENTS—continued

The Extra-Judicial Con pi

exception Follows From This ¢

Recognition That Con piraci Ar

Crimes That Are Ss parate From T!

Omect Of The Conspira

ryé | ’ i ra ih, cel] ; et ,

Are » j I : tl iY,

\vailable At Tria

TABLE OF AUTHORITIES

Page(s)

CASES

Alioto v. City of Shively,

835 F.2d 11738 (6th Cir. 1987)..... 28, 30

Anthony v. Baker,

955 F.2d 1395 (10th Cir. 1992) 13, 16

Ashcroft v. Iqbal,

129 8. Ct. 1937 (2009)... 16

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)....... 17

Briscoe v. LaHue,

460 .2. mA (1983). PasstmM

Buckley v. Fitzsimmons,

509 U.S. 259 (1993)... 32

Buckley v. Fitzsimmons,

20 F.3d 789 (7th Cir. 1994) 22

California v. Green,

399 U.S. 149 (1970). 25

Callanan v. United States

364 U.S. 587 (1961) 19

Celotex Corp. v. Catrett,

477 U.S. 317 (1986). 16

Cignetti v. Healy,

89 F. Supp. 2d 106 (D. Mass. 2000) 28

Crawford v. Washington,

541 U.S. 36 (2004).. 20)

Dory v. Ryan,

25 F.3d 81 (2d Cir. 1994) 9, 31, 32

TABLE OF AUTHORITIES—continued

Page(s)

Erickson v. Pardus,

Oe ORE 2 sy 2 Se a ene cen: Bre trn nnn tse 2

Franklin v. Terr,

201 F.3d 1098 (9th Cir. 2000).......................26, 27

Giles v. California,

BB Re 1. | rr ene yas

Gurary v. Winehouse,

eo ge By ae ee eb: .. | ar 17

Guzman-Rivera v. Rivera-Cruz,

6S F.Sek 26 Chet Cir. TOG) o.oo ccc cisccccedccesccveenena, oO

Harris v. Roderick,

126 F.3d 1189 (9th Cir. 1997)...............-0.0...12, 30

House v. Belford,

956 F.2d 711 (7th Cir. 1992)..................: 21, 22, 26

Ienco v. City of Chicago,

ZEG FS 946 C70 Car, DOG8) .. onaccencccececsvsccossecsccs 29

Johnson v. Jones,

ee Os te a cs eae canvas pas vec dsdnavoeeocceenss) 16

Jones v. Cannon, 174 F.3d 1271 (11th Cir.

i DURRGRAA Be Nears ee tn Retin have Rome Raed 21, 26, 28, 30

Lujan v. National Wildlife Federation,

ME Oe EE CR kink cksnicccdsindesvadexcss: ae ee |.

Maher v. Town of Ayer,

463 F. Supp. 2d 117 (D. Mass. 2006)................. 28

Malley v. Briggs,

475 U.S. 335 (1986)........... Cr Le ee 12,14

Vi

TABLE OF AUTHORITIES— continued

Page(s)

Mejia v. City of New York, 119 ¥. Supp. 2d 232

(K.D.N.Y. 2000) ..... fades ‘lei ee ett 14

Miller v. Glanz,

948 F.2d 1562 (10th Cir. 1991).....0.00 2 .. 26, 28

Mitchell v. City of Boston,

130 F. Supp. 2d 201 (D. Mass. 2001)................. 28

Mitchell v. Forsyth,

472 U.S. 311 U1965)....... snc sneweuabioveubenten eee

Moldowan v. City of Warren,

578 F.3d 351 (6th Cir. 2008).............5... ee

Moses v. Parwatikar,

813 F.2d 891 (6th Cw. 1987)............ eee 27

Mowbray v. Cameron County,

274 F.3d 269 (5th Cir. 2001)..... el, 20, 22

Paine v. City of Lompoc,

265 F.3d 975 (Oth Cir. 2001) 00... 0..cccccceenessosnceay eee

Pearl v. City of Long Beach,

296 F.3d 76 (2d Cr. BOOB) oocccsdckccccca cence

Pinkerton v. United States,

328 U.S. 640 (1946)....... senvanuceccna le uae

Roth v. Jennings,

489 F.3d 499 (2d Cir. 2007) .. jiaevassseupeeeee

Salinas v. United States,

522 U.S. 52 C867) kc 19, 20, 21

San Filippo v. U.S. Trust Co. of New York,

Inc.,737 F.2d 246 (2d Cir. 1984).......... 9, 31, 32

TABLE OF AUTHORITIES—continued

Page(s)

Saucier v. Katz,

533 U.S. 194 (2001). lo

Spurlock v. Satterfield,

167 F.3d 995 (6th Cir. 1999) 29

Thomas v. Hungerford,

23 F.3d 1450 (8th Cir. 1994) 29

Thomas v. Roach,

165 F.3d 137 (2d Cir. 1999)

United States. v. Agurs,

427 U.S. 97 (1976)... 2]

United States v. Calandra,

414 U.S. 338 (1974)...... 25

United States v. Jimenez Reci

pa? U.>. 270 (2003).......... 2]

United States v. Rabinowich

238 U.S. 78 (1915)....... 19, 20

Walczyk v. Rio,

496 F.3d 139 (2d Cir. 2007) 16

Watterson v. Page,

987 F.2d 1 (1st Cir. 1991) 28

White v. Frank,

855 F.2d 956 (2d Cir. 1988) 12 16

Wilkins v. May,

872 F.2d 190 (7th Cir. 1989) 29

Wyatt v. Cole,

504 U.S. 158 (1992)

Vill

TABLE OF AUTHORITIES—continued

Page(s)

STATUTES, RULES, AND REGULATIONS

28 U.S.C. § 1291 ...ceccccccccccsesseseeeeee PEO apron ata. 15

GS GEE. © WE cikscecsenenns Ee Pere Orin eee Nery 5

BLS Ste Dh < SRR one me ama emery Rnd 4404-5 1 passim

en. Be ees Be Fe seco acces sica ccna raat (ey,

Pee. Be. 40. 6 ke irc 16,17

red. KR. Civ. P. 560) ......... ERAN ERED ETA ONT Ry Peg ae

MISCELLANEOUS

Docket Order of Discontinuance, Sheff v. City

of New York,

No. 03-cev-00708 (S.D.N.Y. June 1, 2006).......... 32

Kugene Gressman et al., SUPREME COURT

PRACTICE 280 (9th ed. 2007) ............0..000.. Pens 13

Jury Verdict, Taylor v. Hansen,

No. 85-cev-1643 (N.D.N_Y. June 23, 1993) ......... 32

Michael Avery, David Rudovsky & Karen

Blum, Police Misconduct: Law and

Ee EUEEON © ST FE ook sien cc cena neavcnscavasnnacosauess 28

Order, Dory v. Ryan,

No. 92-cv-04351 (E.D.N.Y. Sept. 18, 1998) ....... 32

P}. Opp. to Def. Mot. to Dismiss, Coggins v.

County of Nassau,

No. 2:07-cv-03624-JFB-AKT (E.D.N.Y. Feb.

es I bis eee 6

TABLE OF AUTHORITIES—continued

Page(s)

Settlement Agreement & Release, Cipolla v

County of Rensselaer,

No. 99-ev-01813 (N.D.N.Y. Feb. 5, 2002) 32

Stipulation and Order of Dismissal, 7ribune

Co. v. Purcigliottt,

No. 93-ev-07222 (S.D.N.Y. Feb. 11, 1998) 32

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT

Petitioner is a policeman who, along with a col-

league, initiated and encouraged respondent’s arrest

and prosecution on trumped-up weapons charges.

Months later, the two officers lied to a grand jury to

secure a criminal indictment of respondent resting

on their false testimony and fabricated evidence; pe-

titioner subsequently pleaded guilty to a charge of

perjury stemming from those events. But petitioner

now asks this Court to protect him from civil liability

under 42 U.S.C. § 1983 for his conspiracy to falsely

arrest, jail, and indict respondent. The Court should

deny this request. The lower courts sensibly declined

at this early motion-to-dismiss stage to grant peti-

tioner absolute immunity for conspiring to prosecute

an innocent man, and this Court should not disturb

that determination.

In seeking review of the decisions below, peti-

tioner maintains that the Second Circuit's recogni-

tion of a conspiracy exception to the immunity from

hability for false grand jury testimony is inconsistent

with this Court’s decision in Briscoe v. LaHue, 460

U.S. 325 (1983), and in conflict with the holdings of

other courts of appeals. Decision of that issue, how-

ever, 1s not necessary for the resolution of this case.

The court below identified a second, independent ba-

sis for denying petitioner immunity from Section

1983 lability, the “complaining witness” doctrine,

and remanded the case for a factual determination

whether the requisites of that doctrine are present

here. If they are, there will be no need for the Court

to resolve the question presented in the petition. For

that reason alone, further review of this case, at least

at this time, is inappropriate.

Even considered on its own terms, the questions

presented by petitioner do not warrant this Court's

attention. The instant case involves allegations of a

broad conspiracy unfolding over many months, while

Briscoe did not involve a conspiracy at all and most

of the appellate decisions cited by petitioner involved

limited conspiracies directed only at the presentation

of false testimony; it is not at all apparent that the

courts issuing those decisions would reject the Sec-

ond Circuit’s approach on the facts here. Moreover,

in contrast to decisions in most other circuits, this

case involves testimony before the grand jury—

where hes are less likely to be uncovered and where,

consequently, more robust hability rules are appro-

priate. And the issue presented in the petition is, in

any event, one of limited practical importance: in

fact, we are not aware of any case in which a court

within the Second Circuit ever has held a defendant

hable through application of the conspiracy excep-

tion. The petition accordingly should be denied.

A. Factual Background

l. Respondent's Encounter With Police

On October 9, 2004, respondent was driving a car

when he was pulled over by Nassau County police of-

ficer James Vara in the Village of Floral Park on

Long Island, New York. Pet. App. 72a.! Vara refused

' These facts are drawn from the complaint and materials in

cluded by petitioner in his petition appendix. Because this case

was resolved at the motion-to-dismiss stage, the allegations in

the complaint musi be presumed true. Frickson v. Pardus, 551

U.S. 89, 93-94 (2007)

to tell respondent the reason for the stop (Pet. App.

72a), although the officer’s conduct strongly sug-

gested that it was motivated by respondent’s race.

Compl. 9{| 31, 34. Vara asked respondent to step out

of the car, administered a sobriety test, and called for

backup. Pet. 4; Pet. App. 72a-73a. Petitioner then ar-

rived on the scene. Pet. App. 72a-73a. One of the offi-

cers grabbed respondent and, when respondent pro

tested, threatened “to do more than grab him.” Pet.

App. 73a. Respondent, scared, began to run. Pet.

App. 73a. One of the officers shouted, “Shoot him in

the back.” Pet. App. 73a. Respondent kept running,

jumped over a fence, and took a cab home. Pet. App.

73a. Respondent did not have a gun during his en-

counter with police. Pet. App. 73a.

2. Respondent’s Arrest

Respondent subsequently turned himself in to

authorities, was arrested and subjected to a strip and

body cavity search, and was charged with two counts

of criminal possession of a weapon. Compl. {|| 19, 37.

As evidenced by the subsequent false testimony of

petitioner and Vara before the grand jury, the appar:

ent basis for the charges was (1) Vara’s representa-

tions that he heard an object fall to the ground as re

spondent was jumping over the fence, and that Vara

later returned and identified the object as a 9

millimeter handgun; and (2) petitioner’s virtually

identical statements that he heard a 9-millimeter

handgun fall from respondent as respondent jumped

the fence, and that petitioner remained with the

handgun until he was relieved by another officer.

Compl. $19, 23, 24. Respondent was jailed for two

days before securing release on bail of $10,000 cash

and a $25,000 bond. Compl. 49{{ 19-20. The charges

carnied a potential penalty of two to seven years in

prison. Compl. 4 19.

°

3. Petitioner's Perjury Before The Grand

Jury

More than five months later, a state grand jury

convened to consider whether to indict respondent on

weapons charges. Compl. {| 20. Both petitioner and

Vara lied to the grand jury. Both claimed that they

heard a gun drop to the ground while chasing re-

spondent. Compl. 4] 23-24. Petitioner testified that

“| heard a noise as [respondent] went to jump the

fence, which sounded like metal hitting the ground *

* * | looked down to see what it was and found the

gun there.” Pet. App. 30a-3la. Petitioner further tes-

tified that he stayed with the gun to “safeguard” it.

Pet. App. 32a. Likewise, Vara testified that, “as [re

spondent] jumped over the fence, I heard a metal

noise hitting concrete, and I looked down, and I saw

an object laying on the driveway * * *. My assisting

officer [petitioner] stayed there at the scene * * *.”

Pet. App. 32a.

Respondent testified before the grand jury and

maintained his innocence. Pet. App. 72a-73a. But fol-

lowing the false, coordinated testimony of petitioner

and Vara (Compl. {/{| 23-24), the grand jury voted to

indict respondent. Compl. § 22. Although the pas-

sengers riding in the car with respondent were pre-

pared to testify in support of his account, their evi-

dence was not presented to the grand jury. Compl.

4]4| 21-22; Pet. App. 74a.

4. Petitioner’s Perjury Is Exposed

The perjury of petitioner and Vara came to light

in July 2005, when a police officer from the Village of

Floral Park contacted respondent’s counsel to advise

that it was that officer—not petitioner or Vara—who

had first discovered a handgun lying on the ground

in the area where Vara had chased respondent. The

Floral Park officer also stated that he had not seen

the gun until approximately forty minutes after the

pursuit had begun. Compl. {| 25. Radio transmissions

from the date of the incident confirmed the local] offi

cer’s account. Compl. 4] 25-26. These disclosures led

the prosecutor to dismiss the entire case against re

spondent and, in turn, to charge petitioner with per

jury before the grand jury. Compl. 4/4 27-28. Peti

tioner eventually pleaded guilty to criminal perjury.

Compl. 4] 28.

B. Proceedings Below

1. The Complaint

On August 28, 2007, respondent filed this suit

against petitioner and other defendants pursuant to

42 U.S.C. §§ 1981 and 1983 and state tort law.

Compl. § 1. The allegations in the complaint focus

chiefly on petitioner’s role as a “complaining wit-

ness[].” Compl. § 23. The complaint alleges, for ex

ample, that petitioner “actively instigated and en-

couraged the baseless prosecution” of respondent.

Compl. 4 19. In addition, it states that “each of the

Defendants took an active role in creating and manu-

facturing the charges against [respondent], solely for

the purposes of effecting an arrest and conviction.”

Yompl. | 46.

The complaint also alleges misconduct by peti

tioner, including the false arrest and false imprison

ment of respondent, that ovcurred several months

prior to petitioner's eventual perjury before the

grand jury. It alleges, for example, that petitioner

“deprived [respondent] of his Fourth, Fifth, Sixth,

and Fourteenth Amendment rights, and caused such

deprivation of rights by unlawfully stopping, falsely

detaining, unlawfully accusing, wrongfully arresting

and falsely imprisoning [respondent] for two days.”

Compl. §{| 31, 40. The complaint further alleges that

the “seizure {of respondent] was made without prob

able cause” as petitioner was “of the knowledge that

[respondent] had committed no crime” (Compl. 4 42),

that petitioner and the other defendants “prolonged

captivity by failing to investigate [his]

lrespondent’s

protests that he was not the alleged perpetrator and

by conspiring to set bail at an unreasonable amount”

(Compl. {| 33), and that petitioner and the other de

fendants “withheld information which would have

exonerated [respondent] of the criminal charges” he

faced. Compl. 4] 44.

2. Petitioner’s Motions

Petitioner moved to dismiss the claims or, alter-

natively, for summary judgment, on the grounds of

absolute testimonial immunity. He relied chiefly on

Briscoe v. LaHue, 460 U.S. 325 (1983), in which this

Court concluded that a police officer has absolute

immunity from civil damages under Section 1983 for

giving perjured testimony at a criminal trial.

Respondent countered that petitioner was not

entitled to absolute immunity for several reasons. PI.

Opp. to Def. Mot. to Dismiss 8-11.* Furst, respondent

contended—as alleged in the complaint (Compl. ‘

23)—that petitioner was a “complaining witness”

who, 1n contrast to ordinary testimonial witnesses, is

not entitled to absolute immunity under Briscoe. Re

Coggins v. County of Nassau, No. 2:07-cv-03624-JFB-AKT

(I.D.N.Y. Feb, 29, 2008)

spondent contended that later discovery would fa

tually substantiate petitioner's complaining witne

role

Second, respondent argued that the complaint

against petitioner involved more than just his false

testimony at the grand jury proceedings. See, e.g

Compl. {4 19, 36, 72, 79, 80. Respondent contended

that the Briscoe rule of absolute testimonial immu

nity does not extend retroactively to immunize pre

testimonial conduct of police officers who engage in

unlawful arrest, fabrication of evidence, and the ini

tiation or instigation of a malicious prosecution

Third, respondent noted that, even if the focu

were on only petitioner's false grand jury testimony

the holding in Briscoe is limited to perjured test

mony at trial and therefore does not apply to peti

tioner's testimony before the grand jury. See Briscoe

460 U.S. at 328 n.5 (leaving open the question of

immunity for testimony at pre-trial proceedings)

3. The District Court's Ruling

Because discovery had not yet begun, the district

court treated petitioner’s motion solely as one to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and not

as a motion for summary judgment pursuant to Fed

R, Civ. P. 56. Pet. App. 13a-15a (citing Celotex Corp

v. Catrett, 477 U.S. 317, 326 (1986)). On the basis of

respondent's substantiated showing of need for dis

covery,® the district court concluded that petitioner’:

Summary judgment motion was premature and

' Respondent submitted an affidavit pursuant to Fed R. Civ. P

56(f) attesting to the need for discovery. The district court

sessment of that affidavit, which petitioner asks this Court to

review. 1s discussed helow at 17-18

should be dismissed without prejudice to his renew

ing it at the close of discovery. Pet. App. 15a-18a.

Turning to the merits of the motion to dismiss,

the district court denied petitioner's claim of absolute

immunity on two independent grounds.’ First, it

noted the well-established law of the Second Circuit

that a “complaining witness” is not entitled to the

benefit of absolute testimonial immunity. Pet. App.

24a (citing, e.g., White v. Frank, 855 F.2d 956, 958-

959 (2d Cir. 1988), which held, in reliance on Malley

v. Briggs, 475 U.S. 335 (1986), that a “complaining

witness’ is not subject to the Briscoe immunity rule).

The district court concluded, however, that it was not

possible at the Rule 12(b)(6) stage to determine as a

factual matter whether petitioner had acted as a

“complaining witness.” Pet. App. 25a-27a. The dis-

trict court noted that the complaint “alleges acts by

|petitioner|—separate and apart from perjury—that

served to initiate [respondent]’s prosecution,” includ-

ing allegations that petitioner “ordered and directed’

lrespondent]’s arrest and detention (Compl. {| 43),

and ‘withheld information which would have exoner-

ated [respondent] of the criminal charges with which

he was charged’ (Compl. {| 44) * * *.” Pet. App. 25a.

* In deciding to treat petitioner's motion as one to dismiss, the

district court took judicial notice of transcripts from respon-

dent's grand jury proceedings that were addressed in the com.

plaint, See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir

2007) (noting that “[iJn certain circumstances, the court may

permissibly consider documents other than the complaint in

ruling on a motion under Rule 12(b)(6)"). The district court de-

clined to consider various other exhibits proffered by petitioner,

but held that even had they been considered, “those additional]

documents would not change the Court’s analysis at this stage

of the litigation.” Pet. App. 19a-20a

Thus, while stressing that “the availability of abso-

lute immunity should be decided at the earliest pos-

sible juncture,” the district court “decline|d] to rule

as a matter of law at this stage” on the immunity

claim because it could not resolve the factual ques

tion whether petitioner was a complaining witness.

Pet. App. at 26a.

Second, apart from the “complaining witness”

doctrine, the district court noted “an additional, in

dependent obstacle to [petitioner’s] assertion of abso

lute immunity at this juncture” (Pet. App. 27a): the

Second Circuit has recognized an exception to

Briscoe for extra-judicial conspiracies to present per-

jured testimony before a grand jury. Pet. App. 27a

28a (citing Dory v. Ryan, 25 F.3d 81 (2d Cir. 1994),

and San Filippo v. U.S. Trust Co. of N.Y., Inc., 737

F.2d 246 (2d Cir. 1984)). Accordingly, petitioner

could not qualify for absolute immunity to the extent

that “the complaint alleges that Vara and [peti-

tioner] conspired to commit perjury during [respon-

dent]’s grand jury proceedings.” Pet. App. 27a. The

court noted that there was no dispute that petitioner

pleaded guilty to perjury and found that the com-

plaint alleged facts sufficient to support an inference

of an extra-judicial conspiracy to commit perjury, in-

sofar as petitioner and Vara offered interlocking ac-

counts to the grand jury falsely claiming that both

heard respondent drop a gun. Pet. App. 30a-33a. The

court cautioned that it “reaches this conclusion [con-

cerning application of the extra-judicial conspiracy

exception to absolute immunity] without prejudice to

[petitioner] arguing that he is entitled to immunity

at the summary judgment stage, after the parties

10

have had the opportunity to conduct discovery.” Pet.

App. 34a n.8.6

4. The Court Of Appeals Decision

By unpublished summary order, the court of ap

peals affirmed in part and dismissed in part. Pet.

App. la-4a. First, with respect to the district court’s

ruling concerning the extra-judicial conspiracy ex-

ception, the Second Circuit noted that “ijn this Cir

** * absolute Immunity does not extend to alle-

cult,

vations of conspiracy to present false testimony.” Pet.

App. 8a. Second, the court concluded that “[a]bsent a

more developed record of undisputed facts, we are

unable to determine as a matter of law that Buonora

was not a complaining witness.” The court therefore

held that “we Jack jurisdiction to consider this issue”

on interlocutory appeal from the denial of a motion to

dismiss. Pet. App. 3a. The court remanded the case

for further proceedings

REASONS FOR DENYING THE PETITION

In seeking review, petitioner maintains that the

Second Circuit’s recognition of an extra-judicial con-

spiracy exception to the immunity rule of Briscoe de-

parts from this Court’s holding in that case and con-

flicts with the decisions of most other courts of ap-

peals. But he is wrong on both counts. Briscoe did not

purport to immunize extra-judicial acts of conspir-

acy, like those committed by petitioner here, and the

theory underlying Briscoe offers no support for that

With regard to respondent's state-law claims, the district

court dismissed without prejudice the claims for abuse of proc:

ess and malicious prosecution and granted respondent “leave to

replead the requisite special damages with sufficient specific

ity.” Pet. App. 43a

1]

expansive rule of immunity. Similarly, although

some courts of appeals have rejected a general con-

spiracy exception to Briscoe, the decisions from other

circuits cited by petitioner differ from this case in

material respects, and there is reason to believe that

those courts, if presented with facts like those here,

would accept the Second Circuit’s rule.

Petitioner, however, also has a more immediate

and basic problem in seeking review: decision of the

principal question he presents in the petition is un-

necessary now and very likely would have no bearing

on the ultimate outcome of this case. Wholly apart

from the conspiracy exception to testimonial immu-

nity, the district court held below that petitioner’s

immunity might be pierced by application of the

separate complaining witness doctrine; the court of

appeals, which lacked jurisdiction to consider peti-

tioner’s challenge to that ruling, remanded the case

for a factual determination whether the complaining

witness rule applies in this case. If it does, there

would be no reason ever to decide the conspiracy is-

sue presented in the petition. In such circumstances,

review of this case now plainly is unwarranted.

I. THIS CASE IS A POOR VEHICLE FOR RE-

VIEW OF THE EXTRA-JUDICIAL CON-

SPIRACY EXCEPTION BECAUSE RESO-

LUTION OF THE ISSUE WILL NOT DE-

TERMINE PETITIONER’S ENTITLEMENT

TO IMMUNITY.

Petitioner’s principal contention is that the Court

should grant review to determine the validity of the

conspiracy exception to testimonial immunity. Pet. 7-

24. But even if that question might warrant this

and, as we show

‘ ’ . ~ bo : .

Court's consideration In some Case

below, it does not-—-review in this case would be 1im-

l2

proper. This question is of only academic, and secon

dary, importance here: whatever the application of

the conspiracy exception to testimonial immunity,

this case will proceed on remand to determine apph.-

cation of the separate complaining witness doctrine.

And if that doctrine is held to apply after further fac

tual development below, resolution of the conspiracy

question presented in the petition will be wholly un-

necessary. For that reason alone, the petition should

be denied.

A. Continued Litigation Regarding The

Complaining Witness Issue Will Be Nec-

essary Regardless Of The Disposition Of

The Petition.

Even if this Court were to grant review and re-

ject the extra-judicial conspiracy exception to immu-

nity, this suit would still proceed. As petitioner rec-

ognizes, the complaining witness doctrine offers a

separate basis for piercing his immunity. See Pet. 9.

Rooted in this Court’s recognition that “complaining

witnesses were not absolutely immune at common

law” (Malley v. Briggs, 475 U.S. 335, 340 (1986)),

that doctrine strips immunity from “one who pro-

cured the issuance of an arrest warrant by submit-

ting a complaint” that “was made maliciously and

without probable cause.” Jd. at 340-41; see also Wyatt

v. Cole, 504 U.S. 158, 164-165 (1992) (complaining

witness is one who “set[s] the wheels of government

in motion by instigating a legal action’). As the Sec

ond Circuit and other courts of appeals accordingly

have recognized, a complaining witness who “ini-

tiat|es] a baseless prosecution” through “testimony at

a judicial proceeding” is “hable to the victim under

section 1983.” White v. Frank, 855 F.2d 956, 961 (2d

Cir. 1988); see also, e.g., Harris v. Roderick, 126 F.3d

1189, 1199 (9th Cir. 1997); Anthony v. Baker, 955

F.2d 1395, 1399 (10th Cir. 1992).

Here, respondent invoked the complaining wit

ness rule. The district court left the application of the

doctrine unresolved, finding that further factual de-

velopment was necessary to determine whether re-

spondent was in fact a complaining witness. Pet.

App. 23a-27a. And the court of appeals correctly de-

termined that it did not have jurisdiction to decide

whether petitioner was a complaining witness on 1n-

terlocutory appeal because the factual record is un-

developed. Pet. App. 3a.

In these circumstances, review by this Court

plainly is premature: the case is interlocutory, fur-

ther proceedings below are unavoidable, and those

proceedings could moot the conspiracy issue pre-

sented in the petition. This is the paradigm of the

situation in which “the lack of finality in the judg-

ment below may ‘of itself alone’ furnish ‘sufficient

ground for the denial of the [petition].”” Eugene

Gressman et al., SUPREME COURT PRACTICE 280 (9th

ed. 2007) (quoting Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 258 (1916)); see also id. at

82 (‘[RJeview of a nonfinal order may induce incon-

venience, litigation costs, and delay in determining

ultimate justice.” (citing Gillespie v. U.S. Steel Corp.,

379 U.S. 148, 152-153 (1964))). Here, moreover, there

would be no countervailing interest to be served by

immediate review. Ordinarily, as petitioner notes

(Pet. 20), there is value in a quick resolution of im-

munity claims “so that the costs and expenses of trial

are avoided where the [immunity] defense is disposi-

tive.” Saucier v. Katz, 533 U.S. 194, 200 (2001). But

that consideration 1s wholly absent in this case be-

cause further proceedings will be held in the district

14

court in any event. And if petitioner is held to be a

complaining witness after remand, there will be no

need at all for the Court to resolve the conspiracy

question presented here.

This consideration militates against immediate

review with particular force here because the facts

alleged in the complaint strongly suggest that peti-

tioner will be found to be a complaining witness. As

the Court explained in Malley, a police officer who

causes a victim to be arrested unconstitutionally

does not receive absolute immunity. Malley, 475 U.S.

at 341. In Mejia v. City of New York, a case illustra-

tive of how the district court will determine peti-

tioner’s complaining witness status here, the court

stated that an individual 1s a complaining witness “if

the information [he] falsely gave the prosecutor 1n-

duced the prosecutor to act.” 119 F. Supp. 2d 232,

272 (E.D.N.Y. 2000).

That would seem to be this case. Petitioner has

already pled guilty to perjuring himself before the

grand jury that indicted respondent. Pet. App. lla.

The Nassau County District Attorney’s Office dis-

missed the charges against respondent when it dis-

covered petitioner’s perjury, suggesting that the per-

jured testimony, along with the manufactured evi-

dence, was central to the decision to indict. /bid. In

addition, respondent alleged that petitioner “ordered

and directed” respondent’s arrest and detention

(Compl. {| 438) and “withheld information which

would have exonerated [respondent] of the criminal

charges.” Compl. {| 44. Such actions also amounted to

an inducement for the prosecutor to act. On the facts

alleged, it thus is likely the district court on remand

will find petitioner to be a complaining witness not

entitled to absolute immunity. And that will make a

ruling by this Court on the conspiracy exception un-

necessary.

B. Petitioner’s Procedural Criticisms Of

The District Court’s Denial Of Summary

Judgment Are Meritless.

In fact, petitioner evidently recognizes that he

cannot prevail on immunity grounds (and that con-

sideration of the case by this Court therefore is inap-

propriate) so long as the complaining witness issue

remains 1n the case. He accordingly asks the Court to

review not only the conspiracy question, but also the

district court’s denial of his motion for summary

judgment on the complaining witness issue. But as to

that, petitioner does not contest the validity of the

complaining witness doctrine generally; instead, he

asserts only that the Second Circuit misapplied its

own summary judgment law. Pet. 24-31. That con-

tention is self-evidently insupportable for several

reasons. As a consequence, petitioner’s argument for

review of the complaining witness issue addressed

below lacks merit; the case necessarily will proceed

no matter how the conspiracy issue is resolved-—~-and

review accordingly should be denied.

First, the simple fact is that the Second Circuit

had—and this Court has—no jurisdiction to consider

petitioner's challenge to the interlocutory denial of

his summary judgment motion. Generally, the denial

of a motion to dismiss or for summary judgment is

not a final judgment subject to appeal under 28

U.S.C. § 1291. Appeal is permitted where the motion

is premised on a defendant’s immunity from suit, but

only “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Thus,

where “the district court’s determination |is] that the

1 * * * raised a genuine is-

summary judgment recore

lo

sue of fact,” a decision relating to immunity is “not

appealable.” Johnson v. Jones, 515 U.S. 304, 313

(1995); see also Walezyk v. Rio, 496 F.3d 139, 153 (2d

Cir. 2007) (denial of motion to dismiss is appealable

only “to the extent the immunity claim presents a

‘purely legal question” (quoting Mitchell, 472 U.S. at

530)). That is the case here: the court below held that

resolution of the complaining witness issue required

factual inquiry, to be undertaken by the district

court, into the circumstances of petitioner’s grand

jury testimony. Thus, the court of appeals not only

had no obligation to engage in an interlocutory de

novo review of this fact-intensive evidentiary ques-

tion, as petitioner demands (Pet. 25, 28-29); it had no

appellate jurisdiction to do so. See Pet. App. 3a;

White, 855 F.2d at 957; Anthony, 955 F.2d at 1399.°

Second, even if there were jurisdiction to con

sider petitioner's challenge, he would be wrong in

contesting the district court’s conclusion that sum-

mary judgment was premature because respondent

had not yet had an opportunity to conduct discovery.

See Pet. 29. Summary judgment is proper only if ma-

* *&* *

terials such as “depositions, admissions, [and]

* * * do not establish the ab-

interrogatory answers

sence or presence of a genuine dispute.” Fed. R. Civ.

P. 56(c)(1). Rule 56 contemplates “adequate time for

discovery” prior to the entry of summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see

also Lujan v. National Wildlife Federation, 497 U.S.

871, 884 (1990) (reaffirming Celotex). But respondent

* Petitioner appears to suggest that Ashcroft v. Iqbal, 129 S. Ct

1937 (2009), held all immunity claims appealable. Pet. 21 n. 4

In fact, Jqgbal did not depart from the settled rule limiting inter

locutory immunity appeals to matters that “turn|] on an issue of

law.” 1298. Ct. at 1946 (quoting Mitc/ t 530)

17

has not at this juncture sad the opportunity to de

pose petitioner, or anyone else. The district court

therefore lacked sufficient information to evaluate

petitioner’s motion pursuant to Rule 56(c).

Significantly, while petitioner argued before the

court of appeals that he was entitled to summary

judgment, he did not dispute the district court’s

analysis of his motion to dismiss pursuant to Rule

12(b)(6). Petitioner has therefore waived any chal.

lenge to the district court’s finding, under Rule

12(b)(6), that the complaint adequately alleged spe

cific acts by petitioner that served to initiate and

continue respondent’s prosecution. Pet. App. 25a-

26a. Because the sufficiency of the pleading has

clearly been established in accordance with the stan-

dard this Court set out in Bell Atlantic Corp. v

Twombly, 550 U.S. 544 (2007), petitioner’s reliance

on cases such as Thomas v. Roach, 165 F.3d 137, 147

(2d Cir. 1999), where summary judgment was

granted prior to discovery because the pleadings were

facially deficient, is unavailing.

Third, petitioner quarrels with the = district

court’s evaluation of the affidavit that respondent

submitted in support of his averment of the need to

conduct discovery before responding to a summary

judgment motion. See Pet. 27-28. The Second Circuit

has specified the required showing to be made in

such a Fed. R. Civ. P. 56(f) affidavit. See Gurary v.

Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (stating

that an affidavit must show “(1) what facts are

sought [to resist the motion] and how they are to be

obtained, (2) how those facts are reasonably expected

to create a genuine issue of material fact, (3) what ef

fort affiant has made to obtain them, and (4) why the

affiant was unsuccessful 1n those efforts” (alteration

18

in original)). Petitioner does not contend that these

standards are in conflict with those of other circuits

or with this Court’s opimons. He merely attempts to

second-guess the district court’s application of Sec-

ond Circuit precedent to respondent’s affidavit in

this case.’ This claim does not merit this Court’s re-

view.

Il. THE DECISION BELOW IS CORRECT.

For the reasons explained above, consideration of

the issues presented in the petition are premature.

But even if that were not so, review of this case

would not be warranted. We explain below why peti-

tioner is incorrect in asserting that there is a perva-

sive conflict in the circuits on the question presented

here. But before turning to that issue, we address pe-

titioner’s initial contention that the holding below is

inconsistent with Briscoe. See Pet. 9-13. On this, pe-

titioner is wrong: the Second Circuit’s decision is a

faithful apphcation of this Court’s precedent.

A. The Extra-Judicial Conspiracy Excep-

tion Follows From This Court’s Recogni-

tion That Conspiracies Are Crimes That

Are Separate From The Object Of The

Conspiracy.

|. In Briscoe, the decision on which petitioner

principally relies, the Court held that a police officer

’ Respondent’s affidavits, Pet. App. 64a-76a, laid out in detail

the disputed facts for which discovery is necessary. The district

court found that respondent had “wholly compliel|d] with the

standard the Second Circuit has set forth for compliance with

Rule 56(f); he has particularized the discovery required — the

* * * is beyond dispute — and has ex-

materiality of which

plained why he has not obtained discovery to date.” Pet. App.

16a.

19

is immune from Section 1983 hability for false testi

mony offered at a criminal trial in support of the

plaintiffs conviction. The Court relied on common

law history, observing that “[t]he immunity of par

ties and witnesses from subsequent damages liability

for their testimony in judicial proceedings” was es

tablished at the time of Section 1983’s enactment

460 U.S. at 330-333, 336 n.15. This doctrine was

premised on the understanding that absolute witness

immunity was necessary to prevent “two forms of

self-censorship.” /d. at 333. First, immunity ensures

that witnesses will not be “reluctant to come forward

to testify.” Ibid. Second, “once a witness is on the

stand, his testimony might be distorted by the fear of

subsequent lability.” /bid. Immunity thus encour

ages witnesses to make “full disclosure of all pert)

nent information within their knowledge.” /d. at

336.

But these rationales for immunity have no apph

cation when the Section 1983 suit challenges, not

false testimony offered in court, but an extra-judicial

conspiracy to commit perjury. Insofar as immunity

rests on “functional categories” (Briscoe, 460 U.S. at

342) or an official witness’s “critical! role in the judi

cial process” (id. at 336), the conduct meriting pro

tection is the testimony itself; it 1s not the extra

court agreement to further an unwarranted prosecu

tion.

This conclusion follows directly from the Court’s

consistent recognition that conspiracies are “evil”

acts, quite “distinct” from the substantive crimes

they are formed to commit. Salinas v. United States,

522 U.S. 52, 65 (1997); see also Callanan v. United

States, 364 U.S. 587 (1961); Pinkerton v. United

States, 328 U.S. 640 (1946); United States v. Rabi

VAG)

nowich, 238 U.S. 78 (1915). “It is elementary that a

conspiracy may exist and be punished whether or not

the substantive crime ensues” (Salinas, 522 U.S. at

65); a conspiracy is “an offense of the gravest charac-

ter, sometimes quite outweighing, in injury to the

public, the mere commission of the contemplated

crime.” Rabinowich, 238 U.S. at 88. This characteri-

zation of conspiracies as separate from, and often

worse than, substantive crimes weighs heavily in fa-

vor of recognizing that immunity for testimony does

not extend to prior conspiracies to falsify testimony.

By the same token, the prophylactic policies that

favor absolute witness immunity—policies that jus-

tify allowing witnesses to escape liability for their

testimony even when they commit perjury—have no

direct application to conspiracies to commit criminal

acts. On the one hand, the injury inflicted by con:

spiratorial conduct may be vastly greater than that

caused by a perjurer who acts alone, as the existence

of the criminal agreement both cements each partici

pant’s intent to testify falsely and magnifies the im-

pact of the false testimony. The Court has noted that

conspiracies “involve[] deliberate plotting to subvert

the laws, educating and preparing the conspirators

for further and habitual criminal practices,” and are

“characterized by secrecy, rendering [them] difficult

of detection, requiring more time for [their] discov-

ery, and adding to the importance of punishing

(them; when discovered.” Pinkerton, 328 U.S. at 644

(internal quotations omitted). And on the other hand,

the benefits of immunity are greatly diminished in

the conspiracy context: when the focus is on extra-

judicial agreement rather than in-court testimony,

the prospect of liability is much less likely to deter

truthful testimony. In this setting, the balance tips

in favor of the additional deterrence Section 1983 lhi-

ability provides to discourage the extra-judicial con

spiracy in the first place.

2. In punishing the conspiracy and not the testi

mony, the conspiracy exception in no way under-

mines the absolute immunity awarded legitimate

testimony. The exception serves only to discourage

non-testimonial, extra-judicial conduct committed be

fore a judicial proceeding. Those witnesses who mis-

takenly offer false evidence in good faith, and even

those who deliberately perjure themselves but do not

do so as part of an extra-judicial conspiracy, remain

entitled to Briscoe immunity

In nevertheless rejecting the conspiracy excep-

tion, the Seventh Circuit, in an analysis that has

been followed by other circuits, reasoned that some

one “may not be prosecuted for conspiring to commit

an act that he may perform with impunity.” House v

Belford, 956 F.2d 711, 720 (7th Cir. 1992); see also

Mowbray v. Cameron County, 274 F.3d 269, 277 (Sth

Cir. 2001) (quoting House, 956 F.2d at 720); Jones v

Cannon, 174 F.3d 1271, 1289 (11th Cir. 1999) (quot-

ing House, 956 F.2d at 720). But this argument does

not stand up to scrutiny. Conspirators may be prose-

cuted for agreeing to break the law even if their

plans do not succeed. See United States v. Jimenez

Recio, 537 U.S. 270, 274 (2003); Salinas, 522 U.S. at

65. And, of course, even though Briscoe holds that a

perjurer may not be made civilly liable for false tes

timony under Section 1983, perjury remains “a cor

ruption of the truth-seeking function of the trial

process’ (United States. v. Agurs, 427 U.S. 97, 104

(1976)) and a criminal! act, as demonstrated by peti

tioner’s prosecution and conviction for perjury in this

case. Compl. {| 28. Persons who conspire to commit

perjury thus manifestly may not perform the object

of their conspiracy “with impunity. Kor thi rea

son-~as the Seventh Circuit itself noted shortly after

its decision in House—‘“constitutional wrongs com

pleted out of court are actionable even if they lead to

immunized acts.” Buckley v. Fitzsimmons, 20 F.3d

789, 796 (7th Cir. 1994)

3. That especially should be so because immunity

for conspiratorial conduct, at least as petitione:

seems to contemplate it operating, would protect a

wide range of misbehavior that is only tangentially

connected to testimony in court Petitioner present

this case as though it involves only false testimony

But that is not so: as we have explained, the com

plaint alleges that petitioner’s conspiracy was not

limited to coordinating plans to commit perjury, but

also included further violations of respondent's civil

rights, such as fabrication of evidence and false ar

rest. See Pet. App. 25a. And more generally, thi

practical reality is that conspiracy to commit perjury

never comes to life, fully formed, in the grand jury

room. The conspirators almost inevitably have had,

as part of the conspiracy, pre-testimonial dealing:

with police officers, prosecutors, and others in the

criminal justice process. And their conspiratorial act

necessarily extend well beyond the testimony itself

Invariably, for example, conspiratorial grand jury

witnesses first tell their false stories to the prosecu

tor outside the jury room, an action closely akin to

that of complaining witnesses who sign accusatory

instruments that initiate a prosecution

In such circumstances, petitioner present no

reason why he should be wholly immune from liabil

ity for conspiratorial actions taken prior to his pe!

jury. Barring hability for wrongful conduct that 1

not wholly testimonial threatens to immunize action

23

with only a tenuous connection to false testimony.

But surely, absolute immunity should not be allowed

to “spread backwards like an inkblot, immunizing

everything it touches.” Guzman-Rivera v. Rivera-

Cruz, 55 F.3d 26, 29 (ist Cir. 1995); see also

Moldowan v. City of Warren, 578 F.3d 351, 390 (6th

Cir. 2009) (“[Immunity] does not extend to [defen-

dant’s] non-testimonial conduct, ‘despite any connec-

tion these acts might have to later testimony.”), cert.

demed, 130 S. Ct. 3504 (2010); Paine v. City of

Lompoc, 265 F.3d 975, 981 (9th Cir. 2001) (“This [ab-

solute] immunity, however, is not limitless. * * * [It]

does not shield non-testimonial conduct.”). And al-

though witnesses may not be held hable for theu

false testimony, evidence of coordinated perjury by

conspirators may be used to establish a broader

agreement to deny the plaintiff his or her civil

rights—as it manifestly does in this case. See, e.g.,

Pearl v. City of Long Beach, 296 F.3d 76, 87 (2d Cir.

2002) (finding that “it was a reasonable inference

that the officers had agreed to present their allegedly

false” testimony because it was identical).

A rule that recognized immunity in such circum-

stances would have bizarre and destructive conse-

quences, allowing the fact of perjurious testimony at

the end of the conspiracy to immunize the fabrication

of evidence, false arrest, and malicious prosecution

that took place at the outset. It also would create pe-

culiar problems of administration. Petitioner’s ap-

proach, for example, evidently would mean that suits

could proceed against defendants who entered into a

conspiracy to commit perjury that was uncovered be-

fore the testimony was offered (assuming, of course,

that the conspiracy still injured the plaintiff), but

that suit contesting that same conspiracy would be

barred by immunity if the conspirators actually testi-

24

fied. There can be no justification for such a peculiar

rule.

And to the extent there is any doubt on this

score, it counsels in favor of delaying review of this

case. The district court, “accepting all allegations in

the complaint as true, and drawing all reasonable in-

ferences in [respondent's] favor,” found “that the al-

legations of an extra-judicial conspiracy in [respon-

dent's] suit are sufficient to overcome [petitioner's]

claim of absolute immunity at the motion to dismiss

stage.” Pet. App. 28a-29a. But additional fact-finding

will proceed on this question, and the court specifi-

cally noted that it reached its conclusion “without

prejudice to [petitioner] arguing that he is entitled to

immunity at the summary judgment stage, a:ter the

parties have had the opportunity to conduct discov-

ery.” Pet. App. 34a n.8. It accordingly is possible that

petitioner will be awarded immunity on remand. If

he is not, additional factual development about the

scope of the conspiracy would greatly assist the

Court in its consideration of the issue presented by

petitioner (assuming that issue warrants the Court's

attention at all), as it would allow the Court to ad-

dress both the extent of, and limits on, the extra-

judicial conspiracy exception. In either case, review

at this point 1s inappropriate.

B. The Truth-Seeking Mechanisms Of The

Grand Jury Should Be Augmented By

The Conspiracy Exception Because

They Are Significantly Weaker Than

Those Available At Trial.

In addition, the rationale for trial witness immu-

nity identified in Briscoe applies with greatly dimin-

ished force in the grand jury setting. Grand juries

need truthful information to protect citizens from

unwarranted indictments, yet they lack truth-

seeking tools such as cross-examination with which

to determine the veracity of witness testimony. The

Court relied heavily on these truth-seeking mecha-

nisms when it held in Briscoe that absolute immu-

nity is desirable for trial witnesses because “the

truth-finding process is better served if the witness's

testimony is submitted to the crucible of the judicial

process so that the fact-finder may consider it, after

cross-examination, together with the other evidence

in the case to determine where the truth hes.”

Briscoe, 460 U.S. at 333-34 (internal quotations

omitted).

Cross-examination has famously been identified

by the Court as the “greatest legal engine ever in-

vented for the discovery of truth.” California v.

Green, 399 U.S. 149, 158 (1970) (internal quotations

omitted). But grand juries are “ex parte investiga-

tion[s]” rather than “adversary hearing[s],” and so do

not permit cross-examination of witnesses. United

States v. Calandra, 414 U.S. 338, 343 (1974). Other

truth-seeking mechanisms used by trial courts, such

as confrontation by the opposing party (see Crawford

v. Washington, 541 U.S. 36, 50-51 (2004)) and de-

meanor evidence (see Green, 399 U.S. at 158), are

also less available to the grand jury. Defendants may

not attend grand jury proceedings and, indeed, may

never discover who appeared to testify. See Giles v.

California, 128 S. Ct. 2678, 2689 (2008). And al-

though oaths to tell the truth are administered be-

fore the grand jury, in the context of a conspiracy to

commit perjury the value of the oath 1s negated be-

cause the conspirators have already committed a

crime by agreeing to disregard it.

26

In Briscoe, this Court recognized that, when all

of these tools are brought to bear on a trial witness's

testimony, the fact-finder is provided with a suffi-

cient basis on which to determine the truth. 460 U.S.

at 333-334, 342. In contrast, the absence of these

truth-seeking mechanisms in grand jury testimony

makes the conspiracy exception essential to deter-

ring extra-judicial conspiracies of the type alleged in

this case.

Ill. PETITIONER OVERSTATES THE EXTENT

AND EFFECT OF ANY DISAGREEMENT IN

THE CIRCUITS.

Finally, petitioner maintains that, “|w]ith the ex-

ception of the Second Circuit, the totality of the Cir-

cuit Courts of Appeals that have considered this 1is-

sue have held that a witness is entitled to the Briscoe

grant of absolute immunity from habuility from both

the witness’ testimony and from any conspiracy to

commit perjury” (Pet. 14)—asserting that no fewer

than seven circuits have rejected the conspiracy ex-

ception recognized by the Second Circuit. Pet. 14-20.

On examination, however, this assertion of a perva-

sive conflict in the courts of appeals on the question

presented here collapses. To be sure, a number of

other courts have rejected a general conspiracy ex-

ception to Briscoe, and some have specifically dis-

agreed with the Second Circuit’s reasoning on that

question. See Mowbray, 274 F.3d at 277; Franklin v.

Terr, 201 F.3d 1098, 1102 (9th Cir. 2000): Cannon,

174 F.3d at 1288-1289; Miller v. Glanz, 948 F.2d

1562, 1570 (10th Cir. 1991). But the decisions cited

by petitioner differ in material respects from this

one; it is not at all apparent that this case would

have been decided differently in those courts. Par-

ticularly because the issue here ts one that arises in-

frequently, there accordingly is no need for interven-

tion by this Court now.

A. This Case Is Distinguishable From

Those Decided By Other Circuits Be-

cause It Involves A Broader Conspiracy.

At the outset, most of the decisions cited by peti-

tioner did not squarely address the question pre-

sented in this case. Petitioner conspired to (1) falsify

evidence leading to respondent’s arrest, (11) synchro-

nize post-arrest statements with Officer Vara, and

(ili) falsify testimony leading to a er jury indict-

ment. See Pet. App. 8a-10a, 30-338a; Compl. 4/4] 27,

46. Yet most of the allegedly fear vies decisions

cited by petitioner considered conspiracies that were

directed exclusively at testimony: those conspiracies

were conceived close to the date of the testimony and

aimed specifically at procuring false testimony. Thus,

it is not clear that the courts deciding those cases

would have rejected a conspiracy exception on the

facts of this case.

Two of the decisions cited by petitioner involved

conspiracies to coerce expert witnesses to provide

false or prejudicial testimony. Given this focus on the

expert witnesses’ role at trial, these conspiracies

were necessarily directed at the testimony itself. See

Franklin, 201 F.3d at 1101-1102 (conspiracy between

prosecution psychiatrist and state’s witness to coor-

dinate false testimony); Moses v. Parwatikar, 813

F.2d 891, 891 (8th Cir. 1987) (conspiracy between

prosecutor and court-appointed psychiatrist to find

defendant competent to stand trial). A third similarly

involved assertions that a state social worker and a

state psychologist conspired to give false testimony

28

in support of child abuse charges. Watterson v. Page,

987 F.2d 1 (1st Cir. 1991).8 A fourth, although alleg-

ing a conspiracy that began well before the assert-

edly false testimony was given, was concerned exclu-

sively with an agreement to present perjurious tes-

timony. Alioto v. City of Shively, 835 F.2d 11738, 1174

(6th Cir. 1987). In two other cases, the plaintiffs, al-

though also alleging a number of other significant

wrongful acts by the defendants, limited their allega-

tions of conspiracy to the claim that the defendants

“conspire|d| to present perjured testimony in fur-

therance of a criminal conviction” (Glanz, 948 F.2d at

1571) or “suborned false testimony.” Cannon, 174

F.3d at 1288. Finally, petitioner cites two Seventh

Circuit cases, both of which involved a conspiracy

similarly limited to the testimony itself. House, 956

F.2d at 720 (“|Plaintiff] alleged [an] underlying con-

spiracy between [defendant] and Robbins to present

8 And, in any event, the language in Watterson on which peti

tioner relies is dicta. See 987 F.2d at 8-9. District courts in the

First Circuit have recognized that, as a result, Watterson is not

binding law for conspiracies to commit perjury. See, e.g., Maher

v. Town of Ayer, 463 F. Supp. 2d 117, 122 n.10 (D. Mass. 2006)

(“To the extent that Maher is suggesting a pretrial conspiracy

between Taylor and Goss to present perjyured testimony at trial,

there is case law supportive of a cause of action on this basis.”);

Mitchell v. City of Boston, 130 F. Supp. 2d 201, 211 (D. Mass.

2001) (“The First Circuit has not yet had the opportunity to

speak with a firm voice in the post-Briscoe debate.”); tbid. (find-

ing that plaintiffs in First Circuit cases have never pled ade-

quate facts to demonstrate an extra-judicial conspiracy excep-

tion to Briscoe); Cignetti v. Healy, 89 F. Supp. 2d 106, 117 (D.

Mass. 2000) (“[W]itmesses may be sued under § 1983 for their

testimony if the testimony they gave was part of a conspiracy

consisting of their testimony and other non-testimonial acts.”);

see also Michael Avery, David Rudovsky & Karen Blum, Police

Misconduct: Law and Litigation § 3:1 (2010).

29

the false testimony.”); Wilkins v. May, 872 F.2d 190,

192 (7th Cir. 1989) (involving a “charg[e] that they

had conspired to convict him of a crime he had not

committed by giving perjured testimony’).

There is substantial reason to believe that the

more limited nature of the conspiracies alleged in

these cases determined the courts’ rulings on the

conspiracy exception. In fact, five of these circuits

have held that the absolute immunity afforded tes-

timony does not retroactively 1mmunize conduct that

preceded the testimony. See Spurlock v. Satterfield,

167 F.3d 995, 1003-1004 (6th Cir. 1999) (“[A]bsolute

immunity for testimony is a shield[,] * * * not a

sword allowing [witnesses] to trample the statutory

and constitutional rights of others. * * * [Witnesses

are] not entitled to absolute immunity in performing

any nontestimonial or pre/post-testimonial acts.”);

Guzman-Rivera, 55 F.3d at 29 (absolute immunity

does not “spread backwards like an inkblot, immu-

nizing everything it touches”); Jenco v. City of Chi

cago, 286 F.3d 994, 1000 (7th Cir. 2002) (noting that

extra-testimonial conduct is not shielded by absolute

immunity); Paine, 265 F.3d at 981 (same); Thomas v.

Hungerford, 23 F.3d 1450, 1453 (8th Cir. 1994)

(same). It may well be, as a consequence, that these

courts would decline to award immunity when—as in

this case—the conspiracy produced a range of acts, of

which perjury was only the concluding part.9

4% Petitioner cites a total of seven purportedly conflicting cir-

cuits. Pet. 14. He fails to cite Mowbray, which is similar to the

decisions he does cite and distinguishable for the same reasons.

274 F.3d at 275-276 (extending immunity to a conspiracy to

cover up potentially exonerating forensic test results and mis

lead the grand jury)

30

B. This Case Is Distinguishable From Most

Others Because It Involves Grand Jury

Testimony.

In addition, this case involves a conspiracy to

commit perjury before a grand jury. Although the

Second Circuit applies the conspiracy exception to

perjury before both grand and petit juries, it is not at

all clear that other circuits would treat trial and

grand jury testimony equivalently. There 1s no way

to be sure about that: six of the purportedly conflict-

ing circuits have not yet considered the extra-judicial

conspiracy exception in the context of grand jury tes-

timony. The First, Fifth, Seventh, Eighth, Ninth, and

Tenth Circuits have not; only the Sixth and Eleventh

Circuits have. See Cannon, 174 F.3d 1271; City of

Shively, 835 F.2d 1173.

And here, too, there is reason to believe that this

distinction will make a difference: at least one circuit

whose rule is relied upon by petitioner has suggested

that grand jury testimony should not benefit from

the same absolute immunity as trial testimony. See

Harris, 126 F.3d at 1198 (“|Defendants’] argument

here is * * * that if a conspiracy to lie is so successful

that on the basis of the hes a grand jury finds prob-

able cause, the conspirators become immunized for

the constitutional injury they have caused. We dis-

agree.”). This is not surprising; as discussed above,

there are a number of reasons why it makes sense for

absolute Briscoe immunity to govern testimony at

trial but not to shield extra-judicial conspiracies in-

volving perjurious grand jury testimony. It thus can-

not be assumed that circuits that have not had the

opportunity to consider this issue will reject the Sec-

ond Circuit’s rule in the grand jury context.

ol

C. The Second Circuit Applies The Extra-

judicial Conspiracy Exception Too In-

frequently For It To Pose A Significant

Issue Meriting Review By This Court.

Against this background, whatever tension may

exist in the ways in which the Second and other Cir-

cults state their rules governing application of the

conspiracy exception, there is no square conflict be-

tween the decisions of the courts: the courts of ap

peals have not reached differing conclusions in cases

presenting substantially identical facts. There ac-

cordingly is no compelling need for the Court to ad-

dress the matter now.

That is especially so because the issue here

arises in the Second Circuit with great infrequency.

In arguing to the contrary, petitioner contends that

the Second Circuit’s decisions in San Filippo and

Dory “create[] a back door to the hlability of witnesses

for their testimony before a Grand Jury that was not

envisioned by thfis] * * * Court in Briscoe.” Pet. 19.

The Second Circuit's extra-judicial conspiracy excep-

tion, however, creates hability based on the actions

leading to perjurious testimony, rather than for the

testimony itself. See Dory, 25 F.3d at 83. Indeed, San

Filippo anticipated and repudiated the argument

that the exception could be so broadly construed as to

vitiate the immunity afforded by Briscoe. San

Filippo, 737 F.2d at 255. Instead, the court of ap-

peals stressed that the exception must be very cau-

tiously allowed, that it 1s “imperative” for courts to

“examine with great care” suits charging extra-

judicial conspiracies, and that courts must “dismiss

on pre-trial motion those that are clearly baseless.”

Td. at 256.

32

Courts in the Second Circuit have taken this

guidance to heart, construing the conspiracy excep-

tion narrowly and applying rigorously the protec-

tions “provided by the possibility of 12(b)(6) dismissal

or summary judgment in defendants’ favor.” San

Filippo, 737 F.2d at 255. In the 25 years since San

Filippo was decided, it appears that there have been

a total of 23 cases in the Second Circuit bringing a

Section 1983 claim against an individual other than

a prosecutor for conspiracy to commit perjury.!9 Of

these 23 cases, an allegation of extra-judicial con-

spiracy to testify falsely has survived the summary

judgment stage a total of six times prior to the in-

stant case. And of these, our research has revealed

no case in which the defendant was found hable for

participation in an extra-judicial conspiracy to com-

mit perjury.!!

The extra-judicial conspiracy exception thus is

not the significant loophole that petitioner suggests.

10 San Filippo was decided before the Supreme Court’s decision

in Buckley v. Fitzsimmons, 509 U.S. 259 (1993). Dory subse-

quently applied Buckley to limit San Filippo’s rule, holding that

prosecutors are immune from the extra-judicial conspiracy ex-

ception when acting as an advocate. Dory, 25 F.3d at 83-84.

1! Two of these cases settled. See Docket Order of Discontinu-

ance, Sheff v. City of New York, No. 03-cv-00708 (S.D.N.Y. June

1, 2006); Settlement Agreement & Release, Cipolla v. County of

Rensselaer, No. 99-cv-01813 (N.D.N.Y. Feb. 5, 2002). Three oth-

ers were resolved in favor of the defendant. Order, Dory v.

Ryan, No. 92-cv-04351 (E.D.N.Y. Sept. 18, 1998) (charges sub

sequently dropped); Stipulation and Order of Dismissal,

Tribune Co. v. Purcigltotti, No. 93-cv-07222 (S.D.N.Y. Feb. 11,

1998) (dismissed with prejudice); Jury Verdict, Taylor v. Han-

sen, No. 85-cv-1643 (N.D.NLY. June 23, 1993) (verdict for the de

fendant). Electronic records are not available from the remain-

ing case.

It is a narrow doctrine that courts in the Second Cir

cult have carefully limited through the standard pro

cedural tools. As such, petitioner’s suggestion that

the extra-judicial conspiracy exception threatens to

undermine Briscoe is, based on 25 years of experi

ence, plainly false. And for that reason as well, fur

ther review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be de

nied.

Respectfully submitted

JEFFREY A. MEYER CHARLES A. ROTHFELD

Yale Law School Counsel of Record

Supreme Court Clini ANDREW J. PINCUS

127 Wall Street PAUL W. HUGHES

New Haven, CT 06511 MICHAEL B. KIMBERLY

(203) 482-4992 Mayer Brown LLP

1999 K Street, NW

Washington, DC

POO0E

(202) 263-3000

FREDERICK K. BREWINGTON

Law Offices of Frederick K

Brewington

556 Peninsula Blvd

Hempstead, NY 11550

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(516) 489-6959 coTT A. KORENBAI

Law Offices of Scott A

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( ‘ounsel jor Respondent

DECEMBER 2010