KALINA v. FLETCHER: ANOTHER QUALIFICATION OF IMBLER'S PROSECUTORIAL IMMUNITY DOCTRINE.

AuthorBurkett, Anne H.

Kalina v. Fletcher, 118 S. Ct. 502 (1997).

  1. INTRODUCTION

    In Kalina v. Fletcher,(1) the Supreme Court addressed whether the doctrine of absolute prosecutorial immunity protects a prosecutor from liability for attesting to false facts in an affidavit supporting the issuance of an arrest warrant.(2) A unanimous Court held that a prosecutor is not protected by absolute immunity for her action in executing the affidavit.(3) While absolute immunity protects a prosecutor for activities in initiating and prosecuting a case or by otherwise performing acts "intimately associated with the judicial phase of the criminal process,"(4) the Court concluded in Kalina that "[t]estifying about facts is the function of the witness, not of the lawyer."(5) The Court found that the prosecutor in Kalina functioned as a complaining witness.(6) Since a complaining witness was accorded only qualified immunity at common law(7) and no policy concerns justified extending absolute immunity to a prosecutor for such an action,(8) the Court declined to accord absolute immunity to the prosecutor in Kalina for attesting to facts.(9)

    This Note first argues that Kalina descends directly from Imbler v. Pachtman, and does not follow Imbler's intervening progeny. This Note further argues that for policy reasons besides those articulated by the Court in Kalina, denying the protection of absolute immunity to the prosecutor in Kalina is justified. To hold otherwise would cause substantial harm to the judicial process and the administration of justice.

    Finally, this Note discusses whether lower courts have applied Kalina correctly in light of Imbler. Lower courts have been able to apply Kalina with ease, but the application of Kalina in some contexts triggers policy considerations absent in Kalina but nevertheless worthy of weight due to Imbler. In some cases, the denial of absolute immunity to a prosecutor has accorded with the policies recognized by the Court; in others, courts have extended Kalina too far.

  2. BACKGROUND

    1. SECTION 1983 AND BIVENS CLAIMS AGAINST PROSECUTORS

      Section 1983 of the Civil Rights Act provides a remedy to persons who are deprived of their constitutional rights by a state actor.(10) One who wishes to sue that state actor in his or her individual capacity typically files a [sections] 1983 claim.(11)

      Section 1983 was originally codified as part of the Civil Rights Act of 1871.(12) Following the Civil War, fundamental changes occurred in the area of individual civil rights.(13) Because of the breakdown in the protection of civil rights in the South after the Civil War,(14) the Reconstruction Congress enacted legislation to protect individuals from oppression by state officials.(15) For example, although the Thirteenth Amendment ended slavery,(16) many southern state legislatures enacted laws, known as the Black Codes, which preserved the subordination of African-Americans' rights.(17) Congress countered the Black Codes by ratifying and submitting to the states the Fourteenth(18) and Fifteenth Amendments,(19) and to enforce them, Congress enacted the Civil Rights Act of 1871.(20)

      The right to redress a violation of a constitutional right by a federal actor is not derived from statute, but rather was established by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.(21) A Bivens claim is legally analogous to a [sections] 1983 claim and is available against a federal prosecutor. The law applicable to a Bivens claim against a federal official mirrors that applicable to a [sections] 1983 claim for individual immunity purposes, and [sections] 1983 and Bivens immunity cases are interchangeable.(22)

      A [sections] 1983 or Bivens suit permits a plaintiff to sue directly the state or federal official who allegedly violated her rights.(23) For purposes of [sections] 1983, a state actor includes persons who derive their authority from a state law or custom.(24) A prosecutor is a state actor.(25) Thus, when acting "under color of state authority," a prosecutor is subject to suit for violating rights secured to a plaintiff either by the United States Constitution or by a federal statute.(26) The elements of a [sections] 1983 claim include "(1) a violation of a constitutional or federal statutory right; (2) proximately caused; (3) by a `person;' (4) who acted `under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia....'"(27) The plaintiff may seek compensatory and punitive damages against the official in her individual capacity.(28) For the plaintiff to recover damages in any [sections] 1983 action that would in effect cause the plaintiff's prior conviction or sentence to become invalid, the plaintiff must prove that the prior conviction or sentence has been officially reversed on direct appeal, eliminated by executive order, declared invalid by a state tribunal, or been the subject of a federal court's issuance of a writ of habeas corpus.(29) Thus, until a court or executive order officially invalidates a disputed conviction or sentence, it cannot form the basis for a [sections] 1983 claim.(30)

    2. IMMUNITY TO SECTION 1983 LIABILITY

      On its face, [sections] 1983 makes no exception to liability for any state official.(31) Furthermore, the legislative history reveals Congress did not consider creating any exceptions to the liability.(32) However, in Tenney v. Brandhove,(33) the Supreme Court interpreted the absence of an exemption to mean that Congress accepted the immunities generally recognized at the time of [sections] 1983's passage in 1871.(34) Tenney involved the immunity available to state legislators charged with violating what is presently [sections] 1983.(35) The Court acknowledged that the Constitution explicitly conferred immunity on federal legislators,(36) and that both the English and American common law granted legislative immunity to legislators to prevent nuisance suits from infringing upon legislative decision-making.(37) The Court concluded that if Congress had wished to abolish immunities "well grounded in history and reason," such as the legislative immunity, it would have expressly stated such an intent when it enacted [sections] 1983.(38)

      Tenney's "history and reason" standard established "a two-prong test to determine whether Congress intended to extend immunity to a particular defendant under [sections] 1983."(39) Hereafter, courts used this two-prong test to analyze [sections] 1983 immunity defenses.(40) The "historical" criterion focused on "whether Congress was aware of the immunity claimed when it enacted [sections] 1983, [yet] chose not to expressly abrogate [it]."(41) The "reason" component focused on the public policy supporting the extension of the immunity in the particular case.(42)

      In both [sections] 1983 and Bivens claims, immunity is an affirmative defense available to the defendant.(43) A defendant may claim either absolute or qualified immunity.(44) Absolute immunity provides an affirmative defense to state officials whose special functions or status require complete protection from civil suit.(45) Absolute immunity can immediately defeat a civil suit as long as the official's alleged acts are within the scope of the applicable immunity, even where the offending official knew that her conduct was unlawful, malicious, or otherwise without justification.(46) The Supreme Court only accords absolute immunity where specially justified by public policy considerations.(47)

      Conversely, establishing qualified immunity does not automatically defeat the suit against the public official; rather, it sets the standard against which the defendant-official's conduct will be examined.(48) Qualified immunity protects the state actor from liability as long as she does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."(49) In the context of [sections] 1983 or Bivens claims, qualified immunity is presumed to provide adequate protection for official acts.(50) It reflects a "reasonable balance between the need to protect individual rights and the public interest in promoting the vigorous exercise of official authority."(51)

      The qualified immunity standard presents a threshold question to the trial court: whether the currently applicable law was clearly established at the time of the alleged constitutional deprivation.(52) If the law was clearly established at the time of the violation, the qualified immunity defense will ordinarily fail, since a public official is expected to know the law governing his office.(53) By contrast, an absolute immunity defense does not require this initial determination. Thus, "the procedural advantage of absolute immunity, the avoidance of civil suit significantly earlier in the legal process, makes it a much more attractive and coveted defense than qualified immunity...."(54)

    3. DEVELOPMENT OF THE PROSECUTORIAL IMMUNITY DOCTRINE

      The United States Supreme Court has specifically addressed the issue of prosecutorial immunity to [sections] 1983 suits four times.(55)

      1. Imbler v. Pachtman

        Relying primarily on public policy, the Court in Imbler v. Pachtman(56) held that a prosecutor is absolutely immune from civil suit for activities in initiating and prosecuting a case or by otherwise performing acts "intimately associated with the judicial phase of the criminal process."(57)

        After admitting to his involvement in a robbery, Paul Imbler was charged with the murder of a victim who was killed during prior robbery.(58) Despite Imbler's alibi for the first robbery, police believed that Imbler had committed it as well.(59) Imbler was convicted of first-degree murder and sentenced to death.(60) Released after nine years of incarceration due to the discovery of new evidence, Imbler sued Pachtman, the prosecuting attorney, and various other police officers under [sections] 1983, alleging a conspiracy to violate his civil rights.(61)

        The district court found...

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