Simms v. Constantine

MOYLAN, Judge. The appellants are Stuart O. Simms, who was at the time of the alleged acts that form the basis for the complaint in this case the State’s Attorney for Baltimore City, and Haven Kodeck, who was at the same time an Assistant State’s Attorney for Baltimore City. Both appellants were sued, along with the Mayor of Baltimore City, Kurt L. Schmoke, and the then Police Commissioner of Baltimore City, Edward V. Woods, 1 in the Circuit Court for Baltimore County by three former Baltimore City policemen, the appellees Nicholas Constantine, Chris Wade, and John Mohr, for malicious prosecution and other closely-related tortious acts. The appellants moved to have the complaint against them dismissed on the ground that they enjoyed absolute prosecutorial immunity.

Judge Christian M. Kahl denied their motion and this interlocutory appeal has followed. The single issue before us is whether the governmental immunity, unquestionably enjoyed by the appellants in one form or another for the performance of their official duties, is of the absolute variety or only of the qualified variety. The answer is that for prosecutors it is sometimes the one and sometimes the other, depending upon the particular prosecutorial function for which they are invoking immunity. ²⁹⁴ The Appellate Lens Through Which The Alleged Facts Are To Be Viewed Let it be clear, as we set the necessary factual backdrop for the discussion that is to follow, that we are referring not to evidence but only to allegations. There has yet been no evidentiary hearing at which either side has had an opportunity to present evidence and at which the other side has had an opportunity to test, to challenge, or to contradict such evidence or to present countervailing evidence.

We are dealing only with allegations. The appellants’ motion to dismiss was made pursuant to Maryland Rule 2-322 (Preliminary Motions), which, in subsection (b), provides in pertinent part: Permissive. — The following defenses may be made by motion to dismiss filed before, the answer, if an answer is required: ... (4) governmental immunity ... In discussing appellate review of a trial judge’s decision with respect to a motion to dismiss under Rule 2-322(b), Judge Bloom, in Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 103 Md.App. 749, 757 , 654 A.2d 949 (1995), rev’d in part on other grounds, 342 Md. 169 , 674 A.2d 534 (1996), articulately set out the appropriate standard of review: In reviewing the grant [or the denial] of a motion to dismiss pursuant to Maryland Rule 2-322(b), “we must assume the truth of all relevant and material facts that are well- pleaded and all inferences which can be reasonably drawn from those pleadings.” Sharrow v. State Farm Mut.

Auto. Ins. Co., 306 Md. 754, 768 , 511 A.2d 492 (1986). “[T]he complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein.” Ungar v. State, 63 Md.App. 472, 479 , 492 A.2d 1336 (1985), cert. denied, 475 U.S. 1066 , 106 S.Ct. 1379 , 89 L.Ed.2d 604 (1986). See also Sharrow v. State Farm Mut.

Auto. Ins. Co., 306 Md. 754, 768 , 511 A.2d 492 (1986); Tadjer v. Montgomery County, 300 Md. 539, 542 , 479 A.2d 1321 (1984); Hoffman v. Key Fed. ²⁹⁵ Sav. & Loan, 286 Md. 28, 33-34 , 416 A.2d 1265 (1979); Schwartz v. Merchants Mortgage Co., 272 Md. 305, 307-08 , 322 A.2d 544 (1974). A long line of Maryland cases has consistently affirmed the fact that in ruling on a motion to dismiss (or, in earlier cases, ruling on a demurrer), both the trial court and the reviewing appellate court shall assume to be true not only all of the well pleaded facts in the complaint but also “the inferences which may be reasonably drawn from those well pleaded facts.” Stone v. Chicago Title Ins.

Co., 330 Md. 329, 333-34 , 624 A.2d 496 (1993); Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333, 337-38 , 329 A.2d 681 (1974); Hall v. Barlow Corp., 255 Md. 28, 42 , 255 A.2d 873 (1969); Parish v. Maryland and Virginia Milk Producers Ass’n, 250 Md. 24, 71 , 242 A.2d 512 (1968), cert. denied, 404 U.S. 940 , 92 S.Ct. 280 , 30 L.Ed.2d 253 (1971); Killen v. Houser, 239 Md. 79, 83 , 210 A.2d 527 (1965). In characterizing the prism or lens through which both the trial court and the appellate court should examine a complaint that is being subjected to a motion to dismiss, Ungar v. State, 63 Md.App. 472 , 492 A.2d 1336 (1985), cert. denied, 475 U.S. 1066 , 106 S.Ct. 1379 , 89 L.Ed.2d 604 (1986), explained that the complaint need not specify with minute particularity every fact that need ultimately be proved. It is enough that the complaint state with reasonable certainty the cause of action. A motion to dismiss should not be granted unless it appears that no plausible evidence could be offered to support the claim.

As Judge Robert M. Bell (now of the Court of Appeals) observed for this Court in Ungar, 63 Md.App. at 479 , 492 A.2d 1336 : I’Wjell pleaded allegations of fact contained in the complaint are taken as true and the complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein. (Emphasis supplied). Judge Bell relied not only on Nistico v. Mosler Safe Co., 43 Md.App. 361, 363 , 405 A.2d 340 (1979), but also on Baltimore Import Car Serv. & Storage, Inc. v. Maryland Port Auth., 258 ²⁹⁶ Md. 335, 339-40, 265 A.2d 866 (1970). That case, in turn, relied on and quoted with approval the following statement from Smith v. Shiebeck, 180 Md. 412, 420 , 24 A.2d 795 (1942): The material facts essential to the complainant’s right to obtain relief should be alleged, but a general statement of the facts is sufficient.

It is not necessary to state minutely all the circumstances which may conduce to prove the general charge, as these circumstances are properly matters of evidence which need not be recited to enable them to be admitted as proof. Even though every particular circumstance is not stated, the bill will be held sufficient if it states the complaint with reasonable certainty, clearness and accuracy so as to apprise the defendant of the nature of the claim brought against him. (Citations omitted). See also Flaherty v. Weinberg, 303 Md. 116, 135-36 , 492 A.2d 618 (1985); Morris v. Osmose Wood Preserving, 99 Md.App. 646, 652-53 , 639 A.2d 147 (1994), aff'd in part and rev’d in part, 340 Md. 519 , 667 A.2d 624 (1995).

It was Judge Adkins in Berman v. Karvounis, 308 Md. 259, 264 , 518 A.2d 726 (1987), who then articulated the decided slant or bias that an appellate court should adopt in viewing the presumptively true allegations and all of the inferences that can reasonably be drawn from them: Since we are dealing with a motion to dismiss, we consider appellants’ well-pleaded allegations in the light most favorable to them. See also Board of Educ. v. Browning, 333 Md. 281, 286 , 635 A.2d 373 (1994); Baker v. Miles & Stockbridge, 95 Md.App. 145, 186 , 620 A.2d 356 (1993). In Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993), Chief Judge Murphy wrote to the same effect: In determining whether the trial court erred in granting the motions to dismiss, we must accept as true all well-pleaded facts and allegations in the complaints, together with reasonable inferences properly drawn therefrom. Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven. ²⁹⁷ See also Davis v. DiPino, 337 Md. 642, 648 , 655 A.2d 401 (1995); A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 249 , 634 A.2d 1330 (1994); Briscoe v. City of Baltimore, 100 Md.App. 124, 128 , 640 A.2d 226 (1994).

What these guidelines must produce should be very clear. The narrative that follows may appear to be slanted and one-sided, but that is inevitable when the allegations of the complainants are all we have to go on. A freely acknowledged slant in support of sustaining the viability of the complaint is, moreover, mandated at this stage of the proceedings on this particular issue (the pre-trial dismissal of a complaint). A denial of a motion to dismiss a complaint says nothing about the merits of the complaint.

It only establishes that the complaint states a cause of action that is entitled to a full evidentiary examination to see to what extent the allegations may be true. The Factual Allegations in the Light Most Favorable to the Appellees The taproot of all of the difficulty in this case was the execution of a search and seizure warrant at 2814 Taney Road in Baltimore City on July 17, 1991. The warrant, authorizing a search for illegal drugs, was issued by a judge of the Circuit Court for Baltimore City. The affiant on the warrant was one of the appellees, Officer Nicholas S. Constantine.

The warrant was based, in whole or in part, on information received by Officer Constantine from a confidential police informant. The other appellees, Officer Chris Wade and Officer John Mohr, although not affiants on the warrant application, participated with Officer Constantine in the execution of the warrant. The homeowner at 2814 Taney Road, chagrined at the police invasion, denied that there were any illegal drugs on the premises. He identified himself, moreover, as a cousin of the wife of Mayor Schmoke.

He informed the three officers that “he would, in effect, solicit the Mayor’s intervention into the situation.” The three officers allege that they “had no knowl ²⁹⁸ edge whatsoever that the home they intended to search was owned and/or rented” by a cousin of the Mayor’s wife. A key allegation that followed was that the Mayor, “after having been notified of the attempted search of said residence, broke the normal chain of command as it existed within the hierarchy of the Baltimore City Police Department, personally intervened into the matter, and interfered with the lawful search of the premises by [the three officers] involved in the raid.” A more concrete allegation is that even while the search was in progress, someone higher in the chain of command did somehow intervene and, as a result, the three officers “were forbidden and prevented from completing the search of the residence in question.” How the order to terminate the search was communicated to the officers, who issued such an order, who requestéd that such an order be issued, what basis there could have been for overriding the judicially-issued order to execute the search, and how the termination process could have been effectuated with such speed are, of course, questions that must abide discovery or an evidentiary hearing. Even taking all inferences in the light most favorable to the appellees, however, the State’s Attorney and the Assistant State’s Attorney would not even inferentially be implicated in the events surrounding the termination of the search on July 17, 1991. The significance of the allegations with respect to the events of that night is that, viewing the matter in the light most favorable to the appellees, they supply the motivation, arguably retaliatory, for the investigations and the prosecutions of the officers that followed.

The three officers allege that “the Mayor ... viewed the raid in question as a personal affront to himself, his political career and/or his family and sought to avenge either himself or his family for the July 17 raid.” It is alleged that, because of “the Mayor’s desire to avenge the perceived affront to his career and his family,” he “retaliated” against the three officers “by initiating and/or causing the initiation of a criminal prosecution of their actions as they related to the [July 17, ²⁹⁹ 1991] search in question and to other actions in which [they] had engaged as police officers, including but not limited to search warrants for which they had made application prior to the raid of July 17,1991.” It is further alleged that because of the Mayor’s animus toward the officers because of “the perceived affront to his career and his family,” he “enlisted the assistance of’ State’s Attorney Simms, Assistant State’s Attorney Kodeck, and Police Commissioner Woods. With respect to these three additional defendants, it is further alleged that they “either of their own volition or in response to personal and political pressure imposed upon them by the Mayor, carried out the Mayor’s direction to institute criminal charges against” the three officers. With respect to the appellants Simms and Kodeck, it is alleged that they “manipulated evidence and, in effect, falsified evidence against [the three officers] so as to cause the initiation of criminal prosecutions against them and to ensure that an indictment against them would be forthcoming.” When later in this opinion we turn our attention to the question of whether the prosecutorial activities of the appellants, Simms and Kodeck, were part of their “investigative” function or part of their “adjudicative” function, the timing of whatever actions were taken against the officers may take on significance. On November 1, 1991, three-and-a-half months after the search on Taney Road, the Baltimore City Grand Jury indicted Officer Constantine for perjury.

It was charged that he perjured himself in his affidavit in support of his application for the search warrant. There is no indication of who, other than inferentially the four defendants in this complaint, might have initiated the perjury charge; of who investigated the possibility of perjury; or of who testified as a witness before the Grand Jury. Someone had to pull the search warrant application from the case file, to examine the supporting affidavit allegation by allegation, and then to go to some investigative lengths to run down the truthfulness or falsity of ³⁰⁰ the various allegations. At this stage of the proceedings, however, there is not sufficient detail available to conclude with any certainty what the allegedly perjurious statement or statements may have been, what the investigation of perjury consisted of, and who conducted that investigation.

The allegation charges the two appellants in this appeal with having “manipulated evidence” and “falsified evidence” against Officer Constantine so as “to ensure that an indictment against him would be forthcoming.” Only Officer Constantine was charged with perjury with respect to the Taney Road search warrant. The other two officers were not affiants on that warrant application and were not charged with that or any other violation as of November 1, 1991. They did not, however, remain unscathed. The officers allege that as a direct consequence of the July 17, 1991 search of 2814 Taney Road, they “were investigated over a period of years.” Officers Wade and Mohr further allege that, as a result of the investigation, they “were removed from duty as Drug Enforcement Officers, [and] given menial positions within the Baltimore City Police Department that were beneath their ability and accomplishments.” Inferentially, the investigative mill did not stop grinding as of that first indictment of Officer Constantine on November 1, 1991.

Three-and-one-half months later, on February 14, 1992, a batch of indictments was handed down by the Baltimore City Grand Jury against all three officers. An additional indictment was filed against Officer Constantine, charging a separate case of perjury in an application for another search warrant obtained at some time prior to the obtaining of the July 17, 1991 search warrant for Taney Road. Officer Wade was also charged with perjury in applying for a search warrant at some time prior to July 17, 1991. Officer Mohr was charged with two such acts of perjury, also for warrants obtained prior to July 17,1991.

Looking at these spare allegations in the light most favorable to the appellees, it may be inferred that there is usually one affiant per warrant application and that the four charges ³⁰¹ of perjury represent, therefore, four separate warrant applications. Again, drawing all plausible inferences and looking at them in the light most favorable to the appellees, it is reasonable to assume that an extensive examination of numerous warrant applications was involved in coming up with these four additional charges of perjury. An extensive combing of files and a painstaking examination of those files involves something quite distinct from the day-to-day, garden-variety filing of routine criminal charges. The reasonable inference is that of a high-intensity investigative effort.

We have nothing but the allegations of the three officers as to a possible motive for such an obviously major investigative effort. Even if a close scrutiny of the application for the Taney Road search warrant were called for, what explanation is there for examining other and earlier warrant applications filed by Officer Constantine? Were there prior complaints about him? Who ordered such an investigation?

Who conducted such an investigation? How long did it go on? Officers Wade and Mohr had not even been involved in applying for the Taney Road search warrant. Why were their earlier records also pulled and investigated?

There may be innocuous answers to those obvious questions, but they are not before us at this stage of the proceedings. All three officers also allege that all charges against them were ultimately “dismissed as being legally insufficient and otherwise baseless.” As a result of the February 14, 1992 indictments, however, all three officers were “arrested and placed in jail.” When we come to examine the critical distinction between the adjudicative function of a prosecutor’s office, on the one hand, and the investigative function or the administrative function of a prosecutor’s office, on the other hand, one other allegation may take on significance. All three officers allege that at “some point during the criminal investigation and/or prosecution of them,” Assistant State’s Attorney Kodeck “offered to refrain from charging [them] with criminal activity or to dismiss charges already instituted against them were they ³⁰² to resign from their employment with the Baltimore City Police Department.” Looking at that allegation in the light most favorable to the appellees, it is inferable that an Assistant State’s Attorney would not take such a step without first consulting with others involved with him in a presumably high-intensity and major investigation. It was also alleged by each of the officers that the activities of all four defendants were undertaken not simply with the intention of bringing criminal charges against them but “were also undertaken with the intent and with the desire that [the officers] resign or be pressured into resigning from the Baltimore City police force.” Assuming, as we must when examining a Motion to Dismiss, the truth of all of those facts contained in the pleadings, and looking at all the reasonable inferences that can be drawn from those facts in the light most favorable to the complainants, can it be said that the appellants, Simms and Kodeck, enjoyed absolute prosecutorial immunity, as a matter of law, and were, therefore, entitled to have their Motion to Dismiss granted?

To answer that question, we must examine the nature of prosecutorial immunity. Supreme Court Precedents As Highly Persuasive Authority With the exception of judicial immunity, the forays of the Maryland case law into the broad subject of the immunity of governmental officials from civil suits for tortious acts have been modest. Indirectly if not directly, however, there is a vast repository of case law that has received the stamp of approval by the Maryland courts. In Parker v. State, 337 Md. 271, 276-291 , 653 A.2d 436 (1995), Judge Eldridge engaged in a thorough-going and perceptive tracing of the subject of judicial immunity.

Though of only tangential applicability to the question of prosecutorial immunity now before us, the Parker v. State analysis was illuminating in several regards. Generally speaking, judicial immunity is the fountainhead from which our immunity law ³⁰³ has flowed; other varieties of governmental immunity have branched off from it. Judge Eldridge referred to judicial immunity as a “common law defense” and traced the principle, as “part of the common law,” to as early as 1607. He traced the development of that doctrine through subsequent English case law and then to the broad body of case law articulated by the Supreme Court of the United States, beginning with Bradley v. Fisher, 13 Wall. 335 , 20 L.Ed. 646 (1872), “which remains today the leading American case on judicial immunity.” 337 Md. at 280, 653 A.2d 436 .

One statement made in Parker v. State with respect to judicial immunity is equally pertinent to other varieties of governmental immunity: The common law principle of absolute judicial immunity for judicial acts has neither been abrogated nor been modified in Maryland. 7 337 Md. at 283, 653 A.2d 436 . Although the almost absolute quality that judicial immunity enjoyed at the common law has remained essentially intact, there has been a marked retreat from absolute immunity (and, concomitantly, a marked departure from the common law) with respect to other forms of governmental immunity. In Mandel v. O’Hara, 320 Md. 103, 113 , 576 A.2d 766 (1990), dealing with the immunity of the Governor when acting in his legislative capacity, Judge Rodowsky noted this general trend: Previously, high officials in the executive department enjoyed an absolute immunity. Currently, however, there is a “federal retreat from absolute immunity in its most stringent form[.]” Prosser § 132, at 1062.

Whether an official of the executive department enjoys a § 1983 immunity, and whether that immunity is absolute or qualified, is determined in relation to the function which gives rise to the federal law claim. What is pertinent for present purposes is that Judge Rodowsky then undertook a thorough survey of the prevailing ³⁰⁴ law on governmental immunity, 320 Md. at 112-21 , 576 A.2d 766 , and thirteen of the fifteen cases he discussed were opinions of the Supreme Court of the United States. By the same token, the analysis of the law governing the immunity of governmental officials in Parker v. State discussed no less than ten opinions of the Supreme Court of the United States. What emerges from these cases, and from other cases as well, is that the extensive case law emanating from the Supreme Court of the United States on the subject of the immunity of governmental officials, albeit not of constitutional dimension and not, therefore, binding authority in Maryland, is nonetheless a highly persuasive body of law to which this State has regularly looked for enlightenment.

Indeed, in Mandel v. O’Hara, 320 Md. at 112-113 , 576 A.2d 766 , Judge Rodowsky referred to the highly persuasive character of the federal case law on the subject of immunity of public officials: For at least the past two decades in the United States the principal vehicles for developing law concerning public official immunity have been actions under 42 U.S.C. § 1983 (1982). The Supreme Court has said that “§ 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman [ 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 ] (1976). Thus, § 1983 cases and their first cousins, tort actions based directly on certain alleged violations of the United States Constitution by officials of the federal government, may be persuasive authority as to the Maryland common law of public official immunity in a state law, nonconstitutional tort action against a state official, as presented here. (Footnote and citations omitted).

On only one prior occasion has the specific subject of prosecutorial immunity reached the appellate courts of this State.; In Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981), a Baltimore City Assistant State’s Attorney raised the defense of absolute immunity for an action allegedly undertaken in his prosecutorial capacity. At the outset, the Court of Appeals ³⁰⁵ acknowledged that that specific issue had never before been considered in Maryland: Gersh maintains that he is entitled to absolute immunity ... as a prosecutor ... If he is entitled to [that defense], such immunity would completely bar suit. We have never considered the extent to which a prosecutor may be entitled to absolute immunity outside of a judicial proceeding. [2] (Emphasis supplied) 291 Md. at 189-90 , 434 A.2d 547 .

The Gersh opinion tentatively looked to the Supreme Court decision of Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976), as the authority on which it might rely if it were necessary to address the merits. It mentioned the distinction that Imbler had made between those prosecutorial duties “intimately associated with the judicial phase of the criminal process,” on the one hand, and other prosecutorial functions that “cast him in the role of an administrator or investigative officer rather than that of an advocate,” on the other hand. In the last analysis, however, the Gersh opinion was able to finesse any consideration of the merits of that issue on another ground that obviated any close examination of the particular prosecutorial function being performed. In contrast with Maryland, the Supreme Court has developed an extensive body of law dealing with the subject of prosecutorial immunity.

It is to that body of law that we now shall turn. A Trilogy of Supreme Court Cases The contours of prosecutorial immunity have, over the course of seventeen years, been thoroughly explored by the Supreme Court in a trilogy of cases: 1) Imbler v. Pachtman, ³⁰⁶ 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976); 2) Burns v. Reed, 500 U.S. 478 , 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991); and 3) Buckley v. Fitzsimmons, 509 U.S. 259 , 113 S.Ct. 2606 , 125 L.Ed.2d 209 (1993). A. Imbler v. Pachtman In 1961, Paul Imbler was convicted in a California state court of first-degree felony-murder and was sentenced to death. Over the course of the next eight years, a series of post-trial proceedings were held, which are not directly pertinent here.

The next significant development, for present purposes, is that on a habeas corpus petition, a Federal District Court reversed Imbler’s conviction. Imbler v. Craven, 298 F.Supp. 795 (C.D.Cal.1969). After that decision was affirmed by the Court of Appeals for the Ninth Circuit, Imbler v. Pachtman, 500 F.2d 1301 (9th Cir.1974), the State of California chose not to retry Imbler and he was released. In April of 1972, Imbler filed a civil rights action, under 42 U.S.C. § 1983 , 3 against, inter alia, Richard Pachtman, the Deputy District Attorney who had prosecuted him at the original trial.

Pachtman claimed absolute prosecutorial immunity and requested that the complaint be dismissed as to him. Affirming the decisions of the District and the Circuit Courts, the Supreme Court concluded that Pachtman enjoyed absolute immunity because the acts charged against him “were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.” 424 U.S. at 430 , 96 S.Ct. at 995 . ³⁰⁷ The Supreme Court described, 424 U.S. at 416 , 96 S.Ct. at 988 , the particular prosecutorial acts that were the basis for Imbler’s § 1983 claim: The gravamen of his complaint against Pachtman was that he had “with intent, and on other occasions with negligence” allowed Costello to give false testimony as found by the District Court, and that the fingerprint expert’s suppression of evidence was “chargeable under federal law” to Pachtman. In addition Imbler claimed that Pachtman had prosecuted him with knowledge of a lie detector test that had “cleared” Imbler, and that Pachtman had used at trial a police artist’s sketch of Hasson’s killer made shortly after the crime and allegedly altered to resemble Imbler more closely after the investigation had focused upon him. These were acts intimately associated with the prosecutor’s presentation of the State’s case at the trial table.

In Imbler, the Supreme Court first made it clear that immunities for governmental officials under § 1983 and the common law tort immunities of such officials were essentially indistinguishable. Although the Civil Rights Act of 1871 “on its face admits of no immunities,” 424 U.S. at 417 , 96 S.Ct. at 988-89 , the Supreme Court cited a series of its earlier cases dealing with other varieties of governmental immunity and concluded that § 1983 implicitly incorporates those immunities that are “well grounded in history and reason.” 424 U.S. at 418 , 96 S.Ct. 984 . It concluded “that § 1983 is to be read in harmony with general principles of tort immunities and defenses.” Id. “[T]he considerations underlying the nature of the immunity of the respective officials in suits at common law led to essentially the same immunity under § 1983.” 424 U.S. at 419 , 96 S.Ct. at 990 . Turning specifically to the subject of prosecutorial immunity, the Court acknowledged: This case marks our first opportunity to address the § 1983 liability of a state prosecuting officer. 424 U.S. at 420 , 96 S.Ct. at 990 .

After examining the pros and cons of both qualified immunity and absolute immunity, the Supreme Court concluded that ³⁰⁸ with respect to those prosecutorial activities that are “intimately associated with the judicial phase of the criminál process,” 424 U.S. at 430 , 96 S.Ct. at 995 , the “common-law immunity of a prosecutor is based upon the