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STEPHEN BUCKLEY v. MICHAEL FITZSIMMONS ET AL.

SUPREME COURT OF THE UNITED STATES No. 91-7849 113 S. Ct. 2606, 125 L. Ed. 2d 209, 61 U.S.L.W. 4713, 1993.SCT.43949 <http://www.versuslaw.com> decided: June 24, 1993. STEPHEN BUCKLEY, PETITIONERv.MICHAEL FITZSIMMONS ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Stevens, J., delivered the opinion for a unanimous Court with respect to Parts I, II, III, and IV-B, and the opinion of the Court with respect to Parts IV-A and V, in which Blackmun, O'connor, Scalia, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C. J., and White and Souter, JJ., joined. Author: Stevens JUSTICE STEVENS delivered the opinion of the Court. In an action brought under 42 U.S.C. § 1983, petitioner seeks damages from respondent prosecutors for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment. The questions presented are whether respondents are absolutely immune from liability on either or both of these claims. As the case comes to us, we have no occasion to consider whether some or all of respondents' conduct may be protected by qualified immunity. Moreover, we make two important assumptions about the case: first, that petitioner's allegations are entirely true; and, second, that they allege constitutional violations for which § 1983 provides a remedy. Our statement of facts is therefore derived entirely from petitioner's complaint and is limited to matters relevant to respondents' claim to absolute immunity. I


ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Stevens, J., delivered the opinion for a unanimous Court with respect to Parts I, II, III, and IV-B, and the opinion of the Court with respect to Parts IV-A and V, in which Blackmun, O'connor, Scalia, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C. J., and White and Souter, JJ., joined.

Author: Stevens

JUSTICE STEVENS delivered the opinion of the Court.

In an action brought under 42 U.S.C. § 1983, petitioner seeks damages from respondent prosecutors for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment. The questions presented are whether respondents are absolutely immune from liability on either or both of these claims.

As the case comes to us, we have no occasion to consider whether some or all of respondents' conduct may be protected by qualified immunity. Moreover, we make two important assumptions about the case: first, that petitioner's allegations are entirely true; and, second, that they allege constitutional violations for which § 1983 provides a remedy. Our statement of facts is therefore derived entirely from petitioner's complaint and is limited to matters relevant to respondents' claim to absolute immunity.

I Petitioner commenced this action on March 4, 1988, following his release from jail in DuPage County, Illinois. He had been incarcerated there for three years on charges growing out of the highly publicized murder of Jeanine Nicarico, an 11-year-old child, on February 25, 1983. The complaint named 17 defendants, including DuPage County, its Sheriff and seven of his assistants, two expert witnesses and the estate of a third, and the five respondents. Respondent Fitzsimmons was the duly elected DuPage County State's Attorney from the time of the Nicarico murder through December 1984, when he was succeeded by respondent Ryan, who had defeated him in a Republican primary election on March 21, 1984. Respondent Knight was an assistant state's attorney under Fitzsimmons and served as a special prosecutor in the Nicarico case under Ryan. Respondents Kilander (who came into office with Ryan) and King were assistant prosecutors, also assigned to the case.

The theory of petitioner's case is that in order to obtain an indictment in a case that had engendered "extensive publicity" and "intense emotions in the community," the prosecutors fabricated false evidence, and that in order to gain votes, Fitzsimmons made false statements about petitioner in a press conference announcing his arrest and indictment 12 days before the primary election. Petitioner claims that respondents' misconduct created a "highly prejudicial and inflamed atmosphere" that seriously impaired the fairness of the judicial proceedings against an innocent man and caused him to suffer a serious loss of freedom, mental anguish, and humiliation. The fabricated evidence related to a bootprint on the door of the Nicarico home apparently left by the killer when he kicked in the door. After three separate studies by experts from the DuPage County Crime Lab, the Illinois Department of Law Enforcement, and the Kansas Bureau of Identification, all of whom were unable to make a reliable connection between the print and a pair of boots that petitioner had voluntarily supplied, respondents obtained a "positive identification" from one Louise Robbins, an anthropologist in North Carolina who was allegedly well known for her willingness to fabricate unreliable expert testimony. Her opinion was obtained during the early stages of the investigation, which was being conducted under the joint supervision and direction of the sheriff and respondent Fitzsimmons, whose police officers and assistant prosecutors were performing essentially the same investigatory functions.*fn1

Thereafter, having failed to obtain sufficient evidence to support petitioner's (or anyone else's) arrest, respondents convened a special grand jury for the sole purpose of investigating the Nicarico case. After an 8-month investigation, during which the grand jury heard the testimony of over 100 witnesses, including the bootprint experts, it was still unable to return an indictment. On January 27, 1984, respondent Fitzsimmons admitted in a public statement that there was insufficient evidence to indict anyone for the rape and murder of Jeanine Nicarico. Although no additional evidence was obtained in the interim, the indictment was returned in March, when Fitzsimmons held the defamatory press conference so shortly before the primary election. Petitioner was then arrested, and because he was unable to meet the bond (set at $3 million), he was held in jail.

Petitioner's trial began 10 months later, in January 1985. The principal evidence against him was provided by Robbins, the North Carolina anthropologist. Because the jury was unable to reach a verdict on the charges against petitioner, the trial judge declared a mistrial. Petitioner remained in prison for two more years, during which a third party confessed to the crime and the prosecutors prepared for his retrial. After Robbins died, however, all charges against him were dropped. He was released, and filed this action.

II We are not concerned with petitioner's actions against the police officers (who have asserted the defense of qualified immunity), against the expert witnesses (whose trial testimony was granted absolute immunity by the District Court, App. 53-57), and against DuPage County (whose motion to dismiss on other grounds was granted in part, id., at 57-61). At issue here is only the action against the prosecutors, who moved to dismiss based on their claim to absolute immunity. The District Court held that respondents were entitled to absolute immunity for all claims except the claim against Fitzsimmons based on his press conference. Id., at 53. With respect to the claim based on the alleged fabrication of evidence, the District Court framed the question as whether the effort "to obtain definitive boot evidence linking [petitioner to the crime] was in the nature of acquisition of evidence or in the nature of evaluation of evidence for the purpose of initiating the criminal process." Id., at 45. The Court concluded that it "appears" that it was more evaluative than acquisitive.

Both petitioner and Fitzsimmons appealed, and a divided panel of the Court of Appeals for the Seventh Circuit ruled that the prosecutors had absolute immunity on both claims. Buckley v. Fitzsimmons, 919 F.2d 1230 (1990). In the Court of Appeals' view, "damages remedies are unnecessary," when "courts can curtail the costs of prosecutorial blunders . . . by cutting short the prosecution or mitigating its effects," Thus, when "out-of-court acts cause injury only to the extent a case proceeds" in court, the prosecutor is entitled to absolute immunity and "the defendant must look to the court in which the case pends to protect his interests," By contrast, if "a constitutional wrong is complete before the case begins," the prosecutor is entitled only to qualified immunity. Applying this unprecedented theory to petitioner's allegations, the Court of Appeals concluded that neither the press conference nor the fabricated evidence caused any constitutional injury independent of the indictment and trial.*fn2

Judge Fairchild dissented in part. He agreed with the District Court that Fitzsimmons was entitled only to qualified immunity for his press statements. He noted that the majority had failed to examine the particular function that Fitzsimmons was performing, and concluded that conducting a press conference was not among "the functions that entitle judges and prosecutors in the judicial branch to absolute immunity." in part and concurring in part). Responding directly to the majority's reasoning, he wrote:

"It is true that procedures afforded in our system of justice give a defendant a good chance to avoid such results of prejudicial publicity as excessive bail, difficulty or inability of selecting an impartial jury, and the like. These procedures reduce the cost of impropriety by a prosecutor, but I do not find that the courts have recognized their availability as a sufficient reason for conferring immunity." Ibid.

We granted Buckley's petition for certiorari, vacated the judgment, and remanded the case for further proceedings in light of our intervening decision in Burns v. Reed, 500 U.S. (1991). 502 U.S. (1991). On remand, the same panel, again divided, reaffirmed its initial decision, with one modification not relevant here. 952 F.2d 965 (CA7 1992) (per curiam). The Court of Appeals held that "nothing in Burns undermined" its initial holding that prosecutors are absolutely immune for "normal preparatory steps"; unlike the activities at issue in Burns, "talking with (willing) experts is trial preparation." 952 F.2d at 966-967 . In similar fashion, the court adhered to its conclusion that Fitzsimmons was entitled to absolute immunity for conducting the press conference. The court recognized that the press conference bore some similarities to the conduct in Burns (advising the police as to the propriety of an arrest). It did not take place in court, and it was not part of the prosecutor's trial preparation. 952 F.2d at 967 . The difference, according to the court, is that "an arrest causes injury whether or not a prosecution ensues," whereas the only constitutional injury caused by the press conference depends on judicial action. Ibid.

Judge Fairchild again dissented. He adhered to his earlier conclusion that Fitzsimmons was entitled to only qualified immunity for the press conference, but he was also persuaded that Burns had drawn a line between "'conduct closely related to the judicial process'" and conduct in the role of "'administrator or investigative officer.'" He agreed that trial preparation falls on the absolute immunity side of that line, but felt otherwise about the search for favorable evidence that might link the bootprint to petitioner during "a year long pre-arrest and pre-indictment investigation" aggressively supervised by Fitzsimmons. Id., at 969 (opinion dissenting in part). We granted certiorari for a second time, limited to issues relating to prosecutorial immunity. 506 U.S. (1992).*fn3 We now reverse.

III

The principles applied to determine the scope of immunity for state officials sued under Rev. Stat. 1979, as amended, 42 U.S.C. § 1983 are by now familiar. Section 1983 on its face admits of no defense of official immunity. It subjects to liability "every person" who, acting under color of state law, commits the prohibited acts. In Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), however, we held that Congress did not intend § 1983 to abrogate immunities "well grounded in history and reason." Certain immunities were so well established in 1871, when § 1983 was enacted, that "we presume that Congress would have specifically so provided had it wished to abolish" them. Pierson v. Ray, 386 U.S. 547, 554-555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). See also Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). Although we have found immunities in § 1983 that do not appear on the face of the statute, "we do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy." Tower v. Glover, 467 U.S. 914, 922-923, 81 L. Ed. 2d 758, 104 S. Ct. 2820 (1984). "Our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice." Malley v. Briggs, 475 U.S. 335, 342, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).

Since Tenney, we have recognized two kinds of immunities under § 1983. Most public officials are entitled only to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 807, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Butz v. Economou, 438 U.S. 478, 508, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). Under this form of immunity, government officials are not subject to damages liability for the performance of their discretionary functions when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818 . In most cases, qualified immunity is sufficient to "protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. at 506 .

We have recognized, however, that some officials perform "special functions" which, because of their similarity to functions that would have been immune when Congress enacted § 1983, deserve absolute protection from damages liability. "The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. at (slip op., at 6); Antoine v. Byers & Anderson, Inc., 508 U.S. , , and n. 4 (1993) (slip op., at 3, and n. 4). Even when we can identify a common-law tradition of absolute immunity for a given function, we have considered "whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions." Tower v. Glover, 467 U.S. at 920 . ...


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