Gill v. Ripley

WILNER, Judge. The issue in this appeal is whether prosecutors and their support staff enjoy absolute immunity from civil liability for conduct committed in the prosecution of a paternity action under Maryland Code, title 5, subtitle 10 of the Family Law Article. After filing such an action, the appellee prosecutors dismissed it, with prejudice, over the objection of the child’s mother. The mother, appellant Joyce Gill, later sued the prosecutors and a clerical employee, alleging a variety of common law torts arising from the dismissal of the paternity action.

Concluding that the prosecutors and the clerical employee were endowed with absolute immunity, the Circuit Court for Harford County dismissed the complaint. We shall affirm that judgment. BACKGROUND This action was filed by appellant, individually and as guardian and next friend of her daughter, Jessica. The defendants/appellees are (1) Joseph Cassilly, the State’s Attorney for Harford County, (2) Jeanne Ripley, formerly an Assistant ⁷⁵⁶ State’s Attorney for that county, (3) Beverly Green, a child support enforcement employee working in or for the State’s Attorney’s Office, (4) the office of the State’s Attorney for Harford County, (5) Harford County, and (6) the State of Maryland.

Because this case comes to us from the dismissal, on the pleading, of appellant’s complaint, we must take as fact the well-pleaded allegations in that complaint, along with the reasonable inferences that may properly be drawn from those allegations. Warner v. Lerner, 348 Md. 733, 735 , 705 A.2d 1169,1170 (1998); Flaherty v. Weinberg, 303 Md. 116, 135 , 492 A.2d 618, 628 (1985). This action stems from an earlier one that reached this Court, however, and much of the background of the current dispute was set forth in the opinion filed in that case, Jessica G. v. Hector M., 337 Md. 388 , 653 A.2d 922 , cert. denied, 516 U.S. 829 , 116 S.Ct. 99 , 133 L.Ed.2d 53 (1995). The recitations are not identical, but neither are they materially inconsistent, so we shall draw from both.

In March, 1985, Joyce Gill had an intimate relationship with Hector Montesdeoca. On December 31, 1985, she gave birth to Jessica. In May, 1986, pursuant to §§ 5-1011 and 10-115 of the Family Law Article, Mr. Cassilly and Ms. Ripley filed a paternity action on behalf of Joyce against Hector in the Circuit Court for Harford County. 1 Although blood tests indicated a 99.97% probability that Hector was Jessica’s father, Hector vigorously contested the action and, for two years, engaged in extensive discovery. Joyce contends in her complaint that “the defendants, and their respective offices, supervisors and staff, became annoyed at the level of effort ⁷⁵⁷ they had to expend to prosecute the paternity case,” that they also became annoyed when Joyce called about her case, that they avoided her calls and visits “because they were forced to contend with a troublesome case, a troublesome opposing counsel, and a frustrated client who was angry after years of litigation and no order of paternity or support,” and that, after two years of litigation and no foreseeable trial date, Ms. Ripley dismissed Joyce’s paternity action with prejudice. 2 The order of dismissal, apparently framed as a consent order, was signed by Hector, Hector’s attorney, Ms. Ripley, and a judge of the circuit court.

Joyce, who objected to the dismissal “with prejudice” and communicated that objection to Ms. Ripley, refused to sign the order. Notwithstanding that objection, Ms. Ripley filed the order on March 1,1988, thereby terminating the action. Promptly and over the next three years, Joyce returned to the State’s Attorney’s office on numerous occasions to ask that the case be reopened, but she was consistently turned away and was not allowed to speak to Ms. Ripley or any other attorney in the office. Finally, Ms. Green, who was not an attorney, informed her that, because of the dismissal, she was forever precluded from bringing a paternity action or support proceeding against Hector.

In 1992, a Uniform Reciprocal Enforcement of Support Act (URESA) action was filed in New York, but in June of that year the New York court, applying res judicata, dismissed the action with prejudice, based on the dismissal of the Harford County action. Joyce then moved the Circuit Court for Harford County to vacate the 1988 dismissal; that motion was ⁷⁵⁸ denied upon a finding that there had been no fraud, mistake, or irregularity in the entry of the judgment and therefore there was no basis for reopening it. Joyce’s pro se appeal to the Court of Special Appeals was dismissed for failure to file a brief. In December, 1992, Jessica filed a paternity action against Hector in the Harford County court.

That action also was dismissed on the ground of res judicata, but on appeal, we reversed. In presenting her argument, Jessica urged that res judicata should not be applied because of the “procedural and equitable defects” in the dismissal of the original action, namely, the fact that Ms. Ripley docketed the consent order of dismissal without Joyce’s signature and over her objection. She contended that that action “went beyond the scope of the attorney’s authority,” in that “an attorney has no implied authority to compromise a client’s claim.” Jessica G., supra, 337 Md. at 395 , 653 A.2d at 926 . We did not rule directly on that contention, although it played a part in our decision.

Our ruling was based on § 5-1038(b) of the Family Law Article, which, except for “a declaration of paternity,” expressly allows a court to modify or set aside a paternity order “as the court considers just and proper in light of the circumstances and in the best interests of the child.” We concluded that “[t]he action of the State’s Attorney in dismissing the paternity action with prejudice over the objection of the child’s indigent mother in spite of a 99.97% probability of paternity was' certainly contrary to the best interests of the child.” Id. at 402, 653 A.2d at 929 . The record now before us does not reveal what has transpired with respect to Jessica’s claim since our ruling in February, 1995—whether a support order has been entered against Hector. In this tort action, filed in November, 1995, Joyce and Jessica are seeking substantial compensatory and punitive damages as a result of the dismissal of the initial proceeding. They contend that the dismissal without Joyce’s consent was motivated by the defendants’ ill will and malice and was intended to harm and punish Joyce and Jessica.

They aver that Cassilly, Ripley, and Green fraudulently con ⁷⁵⁹ cealed their wrongful behavior by representing that the dismissal was Joyce’s fault and by refusing to allow Joyce to see an attorney to discuss her case. On those allegations, Joyce and/or Jessica sued Ripley and Green for negligence, gross negligence, fraud, detrimental reliance, and intentional infliction of emotional distress. Ripley, in addition, was sued for professional malpractice. Cassilly was sued for professional malpractice, detrimental reliance, intentional infliction of emotional distress, and gross negligence, and Harford County and the State were sued, vicariously, as the alleged employers of Ripley and Green.

These were all common law actions; no claim was made under 42 U.S.C. § 1983 , or under the Maryland Constitution. Ripley, Green, and Cassilly moved to dismiss the complaint on a number of grounds but principally relied on the defense of absolute prosecutorial immunity. The State adopted the individual defenses and argued as well the failure to file a timely claim with the Treasurer, as required by the State Tort Claims Act, Maryland Code, § 12-106 of the State Government Article. Harford County denied that Ripley and Green were its employees.

In a well-reasoned memorandum opinion, Judge Carr granted the motions to dismiss. He concluded that the individual defendants were, indeed, clothed with absolute prosecutorial immunity with respect to the challenged conduct, that the plaintiffs had failed to give timely notice to the Treasurer, thereby dooming their action against the State, and that Ripley and Green were not county employees. The only issue raised in this appeal is that of the individual defendants’ prosecutorial immunity. Appellants do not challenge Judge Carr’s rulings with respect to the State and Harford County.

DISCUSSION Prosecutorial Immunity In General The question of whether a prosecutor enjoys absolute immunity from civil liability was raised in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981). We observed then that we had ⁷⁶⁰ never considered the extent to which a prosecutor may be entitled to such immunity outside of a judicial proceeding, and we found it unnecessary to do so in that case. We deal with the issue now. Although prosecutorial immunity has been recognized for over a century in the United States, it is a relative latecomer. 3 It arose initially as an adjunct to the doctrine of judicial immunity but has been clothed as well with the mantle of executive official immunity; indeed, it is the distinction between those two forms of immunity that has marked much of the development of prosecutorial immunity.

Judicial immunity has the more ancient lineage. As Judge Eldridge pointed out in Parker v. State, 337 Md. 271, 277 , 653 A.2d 436, 439 (1995), “[t]he principle that judicial officers should be immune from all civil liability for their judicial acts has been part of the common law since very early days.” It was “firmly established” in England by the seventeenth and eighteenth centuries and began to be recognized by American courts in the early years of the nineteenth century. Id. at 279-80 , 653 A.2d at 440. The public policy basis of the doctrine was enunciated by the Supreme Court in Bradley v. Fisher, 13 Wall. 335, 347 , 80 U.S. 335, 347 , 20 L.Ed. 646 , 649 (1871): “[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.

Liability to answer to every one who might feel himself aggrieved by the action of the judge, ⁷⁶¹ would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.” 4 We concurred with that view in Parker , pointing out that, with the important issues at stake in an adversarial context, “absolute immunity is needed to forestall endless collateral attacks on judgments through civil actions against the judges themselves.” Parker v. State, supra, 837 Md. at 287, 653 A.2d at 443 . The immunity given to judges is not entirely unlimited, but, as confirmed in Mireles v. Waco, 502 U.S. 9, 11-12 , 112 S.Ct. 286 , 116 L.Ed.2d 9 (1991), it may be overcome “in only two sets of circumstances”—when the conduct is nonjudicial, “ie., actions not taken in the judge’s judicial capacity,” and when the conduct “though judicial in nature, [is] taken in the complete absence of all jurisdiction.” See also Forrester v. White, 484 U.S. 219 , 108 S.Ct. 538 , 98 L.Ed.2d 555 (1988); Antoine v. Byers & Anderson, Inc., 508 U.S. 429 , 113 S.Ct. 2167 , 124 L.Ed.2d 391 (1993); Mandel v. O’Hara, 320 Md. 103 , 576 A.2d 766 (1990); Parker v. State, supra, 337 Md. 271 , 653 A.2d 436 . The doctrine of judicial immunity, first applied with respect to judges, eventually was expanded to include others involved with the judicial process—to justices of the peace, to military officials exercising authority to order courts-martial, to grand and petit jurors, and to witnesses, parties, and attorneys, at least with respect to defamatory statements “uttered in the ⁷⁶² course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.” Di Blasio v. Kolodner, 233 Md. 512, 522 , 197 A.2d 245, 250 (1964). See Yaselli v. Goff, 12 F.2d 396 (2d Cir.1926), aff'd, 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 (1927); Munster v. Lamb, 11 Q.B.D. 588 (1883); Hayslip v. Wellford, 195 Tenn. 621 , 263 S.W.2d 136 , cert. denied, 346 U.S. 911 , 74 S.Ct. 243 , 98 L.Ed. 408 (1953); Griffith v. Slinkard, 146 Ind. 117 , 44 N.E. 1001 (1896); Engelke v. Chouteau, 98 Mo. 629 , 12 S.W. 358 (1889); Turpen v. Booth, 56 Cal. 65 (1880); Hunter v. Mathis, 40 Ind. 356 (1872); T. Cooley, law of torts 408-09 (1880).

We have expressly recognized a limited, but absolute privilege for witnesses, Hunckel v. Voneiff, 69 Md. 179 , 14 A. 500 (1888); Rosenberg v. Helinski, 328 Md. 664, 676 , 616 A.2d 866, 872 (1992), cert. denied, 509 U.S. 924 , 113 S.Ct. 3041 , 125 L.Ed.2d 727 (1993), for parties to litigation, Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518 (1888), and for attorneys, at least as to communications with the client, the examination of witnesses, statements made to the court or jury, and statements made in pleadings, Maulsby v. Reifsnider, 69 Md. 143 , 14 A. 505 (1888); Di Blasio v. Kolodner, supra, 233 Md. 512 , 197 A.2d 245 ; Kennedy v. Cannon, 229 Md. 92 , 182 A.2d 54 (1962). These extensions all rest on principles of imperative public policy. Judicial immunity was extended to officials other than judges “because their judgments are ‘functionality] eomparab[le]’ to those of judges—that is, because they, too, ‘exercise a discretionary judgment’ as a part of their function.” Antoine v. Byers & Anderson, supra, 508 U.S. at 436 , 113 S.Ct. at 2171 , 124 L.Ed.2d at 399 , quoting from Imbler v. Pachtman, 424 U.S. 409, 423 , 96 S.Ct. 984, 991 , 47 L.Ed.2d 128 , 139 n. 20 (1976). The public policy notions articulated in Bradley v. Fisher with regard to judges thus justified an immunity for the judicial acts or omissions of those officials as well.

The extension to witnesses, attorneys, and parties also was regarded by us as necessary to the proper administration of justice. Subject, of course, to prosecution for perjury, witnesses, who testify under compulsion, must be free to testify according to their belief of the truth, free from apprehension of civil ⁷⁶³ liability for what they may say. Hunckel v. Voneiff, supra, 69 Md. at 187, 14 A. at 501 . Attorneys, obliged in the discharge of a professional duty to prosecute and defend the most important rights and interests of their clients “should be allowed the widest latitude in commenting on the character, the conduct and motives of parties and witnesses and other persons directly or remotely connected with the subject-matter in litigation.” Maulsby v. Reifsnider, supra, 69 Md. at 151, 14 A. at 505 .

A second form of immunity, protecting legislators and civil and military officers, also originated in English law. An absolute immunity for legislators, with respect to conduct and statements made in the course of legislative proceedings, is as venerable as judicial immunity, having been traced back to 1399. Barr v. Matteo, 360 U.S. 564, 579 , 79 S.Ct. 1335, 1343 , 3 L.Ed.2d 1434, 1446 (1959) (Warren, C.J., dissenting). It has been recognized both through Speech and Debate Clauses in the Federal and State Constitutions and, more anciently, as a matter of common law.

See Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 , reh. denied, 342 U.S. 843 , 72 S.Ct. 20 , 96 L.Ed. 637 (1951); Mandel v. O’Hara, 320 Md. 103 , 576 A.2d 766 (1990); Montgomery County v. Schooley, 97 Md.App. 107 , 627 A.2d 69 (1993). Immunity for executive officials arose later and has been modified over time. Initially, it too was cast as absolute in nature, at least with respect to claims of defamation. See Dawkins v. Paulet, L.R.5 Q.B. 94 (1869); Dawkins v. Rokeby, L.R. 8 Q.B. 255 (1873), aff'd, L.R. 7 H.L. 744; Spalding v. Vilas, 161 U.S. 483 , 16 S.Ct. 631 , 40 L.Ed. 780 (1896).

That view has since been clarified and modified, however, both by the Supreme Court and by this Court. See Butz v. Economou, 438 U.S. 478, 493-94 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978); Mandel v. O’Hara, supra, 320 Md. 103 , 576 A.2d 766 . As a general rule, Federal, State, and local executive officials, when exercising executive functions, currently enjoy either a qualified immunity of one kind or another or no immunity at all. Butz, supra; Parker v. State, supra, 337 Md. 271 , 653 A.2d 436 .

Depending to some extent on the nature of the claim, they may be subject to civil liability ⁷⁶⁴ for common law torts if they exceed their lawful authority or, in some instances, if they commit an intentional tort or act with malice, and they remain subject to liability under 42 U.S.C. § 1983 if their conduct violates “clearly established statutory or constitutional rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396, 410 (1982). Because the office of public prosecutor was largely unknown in England, we did not inherit any separate doctrine of prosecutorial immunity from English common law. That doctrine developed largely in the American courts, Burns v. Reed, 500 U.S. 478, 493 , 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991), mostly in the context of malicious prosecution, false arrest, and defamation claims. The case generally thought to be the progenitor of the doctrine was Griffith v. Slinkard, 146 Ind. 117 , 44 N.E. 1001 (Ind.1896).

A prosecutor was charged with malicious prosecution and defamation based on his insertion of the plaintiffs name, as a co-defendant, in an indictment, after the grand jury had concluded that there was insufficient evidence against the plaintiff and voted not to indict him. As a result of the wrongful indictment, the plaintiff was arrested, detained, and put to some expense. The Indiana court regarded the prosecutor as a “judicial officer,” exercising duties of a judicial nature. It therefore applied the rule that “[n]o public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it,” and concluded that there was “no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause.” Id. at 1002.

That view was rejected in Leong Yau v. Carden, 23 Haw. 362 (1916). The defendant prosecutor was charged with having procured the plaintiffs arrest by signing and presenting to a judge a false and malicious affidavit, upon which the judge issued a warrant. In sustaining exceptions to the defendant’s demurrer, the court characterized public prosecutors as executive, rather than judicial, officials, although it acknowledged ⁷⁶⁵ that, as with other executive officials, they sometimes perform quasi-judicial duties. It accorded them a qualified, but not an absolute, immunity, concluding that “[pjublic prosecuting officers are entitled to protection against claims growing out of the discharge of their duties done in good faith though with erroneous judgment, but private individuals are entitled to the protection of the law against any conduct of such officers which is at once reckless, malicious and damaging.” Id. at 369 .

Thus, it held that, although a prosecutor is not liable in damages for “an honest mistake or error in judgment,” he is hable “if he prosecutes without probable cause and with malice.... ” Id. In Smith v. Parman, 101 Kan. 115 , 165 P. 663 (Kan.1917), another malicious prosecution case, the Kansas court also questioned whether the prosecutor really was a “judicial officer,” but it concluded that, in determining which prosecutions to bring, “he acts at least in a quasi judicial capacity.” Id. at 663. Noting the immunity that protected judges and grand jurors, the court found that, in deciding whether a particular prosecution should be instituted or pursued, prosecutors perform much the same function as the grand jury, and that the same public policy basis for the immunity enjoyed by judges and grand jurors applied as well to prosecutors. It expressed concern that if, in deciding whether to proceed, the prosecutor “is charged with notice that he may have to defend an action for malicious prosecution in case of a failure to convict, his course may be influenced by that consideration, to the disadvantage of the public.” Id.

Immunity from civil liability, the court concluded, was not likely to foster an abuse of power, as the prosecutor could be called to account criminally or removed from office for official misconduct. Succeeding cases found the views of the Indiana and Kansas courts more persuasive than those of Hawaii, and absolute immunity became the prevailing common law doctrine. See Semmes v. Collins, 120 Miss. 265 , 82 So. 145 (Miss.1919); Watts v. Gerking, 111 Or. 641 , 228 P. 135 (Or.1924); Yaselli v. Goff, supra, 12 F.2d 396; Kittler v. Kelsch, 56 N.D. 227 , 216 N.W. 898 (N.D.1927); Pearson v. Reed, 6 Cal.App.2d 277 , 44 ⁷⁶⁶ P.2d 592 (Cal.App.1935). See also Imbler v. Pachtman, supra, 424 U.S. 409, 422 , 96 S.Ct. at 991 , 47 L.Ed.2d at 138 , noting that “[t]he Griffith view on prosecutorial immunity became the clear majority rule on the issue.” The Supreme Court first addressed the issue, albeit cursorily, in an appeal from the decision of the Second Circuit Court of Appeals in Yaselli v. Goff, supra, 12 F.2d 396 .

In an exhaustive opinion, the court of appeals determined that prosecutors required the same freedom and discretion to carry out their quasi-judicial duties as judges and grand jurors and, on that basis, extended absolute prosecutorial immunity to a special assistant attorney general appointed by the Attorney General of the United States to investigate and prosecute a particular case. In a per curiam memorandum decision, the Supreme Court affirmed “on the authority of Bradley v. Fisher, 13 Wall. 335, 347 , 20 L.Ed. 646 ; Alzua v. Johnson, 231 U.S. 106, 111 , 34 S.Ct. 27 , 58 L.Ed. 142 .” Yaselli v. Goff, 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 (1927). The citation to Bradley and to Alzua , in which the Court applied the absolute judicial immunity established in Bradley to a judge of the Supreme Court of the Philippine Islands, indicates a conclusion that prosecutors were entitled to the same immunity possessed by judges. The question of prosecutorial immunity came before the Court again, in the context of an action under 42 U.S.C. § 1983 , in Imbler v. Pachtman, supra, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 .

The plaintiff, who had been prosecuted by the defendant, convicted, sentenced to death, and later released on Federal habeas corpus, averred that the prosecutor had, in effect, suborned perjury and suppressed favorable evidence. The Supreme Court began its analysis by drawing from Tenney v. Brandhove, supra, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019—the case establishing absolute immunity for legislators as to claims under § 1983—the principle that § 1983 was to be read “in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Id. at 418, 96 S.Ct. at 989 , 47 L.Ed.2d at 136 . ⁷⁶⁷ After determining that, at common law, prosecutors enjoyed an absolute immunity from civil liability with respect to their prosecutorial conduct, the Court observed that “[t]he common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties,” including “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id. at 422-23 , 96 S.Ct. at 991 , 47 L.Ed.2d at 139 . Those same concerns, the Court held, applied as well to liability under § 1983. Focusing on the kinds of suits most often brought against prosecutors—malicious prosecution actions by erstwhile defendants—the Court concluded that, if prosecutors had only a qualified immunity, the threat of § 1983 suits “would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution.” Id. at 424, 96 S.Ct. at 992 , 47 L.Ed.2d at 140 .

Independence of judgment was required both in deciding which cases to prosecute and in the manner of prosecution. In balancing those considerations against the effect of absolute immunity on persons truly wronged by prosecutorial misconduct, the Court noted that the public would not be entirely without remedy—that prosecutors were not only subject to professional discipline as lawyers but may be subject to criminal prosecution under 18 U.S.C. § 242 for wilful deprivations of Constitutional rights. In defining the contour of its decision, the Court approved the functional approach taken by the Ninth Circuit Court of Appeals in the case, applying absolute immunity to conduct “associated with the judicial process.” Id. at 430 , 96 S.Ct. at 995 , 47 L.Ed.2d at 143 . The Court left open whether that immunity would apply as well to investigative and administrative functions performed by prosecutors.

The Supreme Court addressed the open question and clarified and applied the functional approach in two subsequent cases—Burns v. Reed, supra, 500 U.S. 478 , 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991), and Buckley v. Fitzsimmons, 509 U.S. ⁷⁶⁸ 259, 113 S.Ct. 2606 , 125 L.Ed.2d 209 (1993). In Bums, the prosecutor was sued under § 1983 for having (1) advised investigating police officers that it was permissible to interview the plaintiff, a suspect in a multiple shooting, under hypnosis, (2) advised the police that, in light of statements made by the plaintiff while under hypnosis, probable cause existed to arrest the plaintiff, and (3) appeared at a probable cause hearing seeking a search warrant and failed to inform the judge that the plaintiffs “confession” was obtained while she was under hypnosis. A warrant was obtained and charges were brought against the plaintiff, but they were dismissed after the court suppressed the hypnotically-induced statements. Borrowing heavily from Imbler , the Court noted that it had appliéd absolute immunity from liability under § 1983 for 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” but had reserved with respect to investigative and administrative conduct.

Bur ns, supra, 500 U.S. at 486 , 111 S.Ct. at 1935 , 114 L.Ed.2d at 558 . It observed as well that, ordinarily, qualified immunity is sufficient to protect government officials in the exercise of their duties and that officials seeking absolute immunity had the burden of showing that absolute immunity “is justified for the function in question.” Id. Parsing out the conduct at issue, the Court held that the defendant was absolutely immune with respect to his participation as a lawyer at the probable cause hearing. It applied the common law immunity applicable to witnesses and lawyers for statements made in and related to judicial proceedings, including the elicitation of false and defamatory testimony.

A different conclusion was reached with respect to the advice given to the police, however. The Court noted that there was no historical or common law support for extending absolute immunity to that kind of conduct, and it determined that advising the police in the investigative phase of a criminal case was not so intimately involved with the judicial phase of the criminal process to justify an absolute immunity: ⁷⁶⁹ “Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation [citation omitted]. That concern therefore justifies absolute prosecutorial immunity only for actions that are concerned with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Id. at 494 , 111 S.Ct. at 1943 , 114 L.Ed.2d at 563-64 (emphasis in original). In Buckley v. Fitzsimmons, prosecutors were charged under § 1983 with having fabricated false evidence used to indict the plaintiff and for having made false and defamatory statements concerning the plaintiff at a press conference announcing his arrest.

In analyzing the fabrication claim, the Court rejected the plaintiffs view that absolute immunity does not apply until the criminal case is actually filed, confirming instead that “acts undertaken by a prosecutor in preparing 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.” 509 U.S. at 273 , 113 S.Ct. at 2615, 125 L.Ed.2d at 226 . It also confirmed, however, that qualified immunity was the norm and that, “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer,” the lesser immunity available to those officials would also apply to the prosecutor. Upon the facts alleged in the complaint, it was clear that the prosecutors’ mission at the time they fabricated the false evidence was entirely investigative in character, there being no probable cause then to arrest anyone. Only qualified immunity applied.

The prosecutors fared no better with respect to their press conference statements. The conduct of a press conference, the Court held, may be an integral part of a prosecutor’s job and may serve a vital public function, but it “does not involve the initiation of a