Buckley v. Fitzsimmons, s. 89-2441

Citation20 F.3d 789
Decision Date07 June 1994
Docket Number89-2899 and 89-2900,Nos. 89-2441,s. 89-2441
PartiesStephen BUCKLEY, Plaintiff-Appellee, Cross-Appellant, v. J. Michael FITZSIMMONS, et al., Defendants-Appellants, Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

G. Flint Taylor, John L. Stainthorp, Peoples Law Office, Chicago, IL, for Stephen Buckley.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Hervas, Sotos & Condon, Itasca, IL, Steve A. Schwarm, Asst. Atty. Gen., Topeka, KS, James R. Schirott, Phillip A. Luetkehans, Schirott & Luetkehans, Itasca, IL, for J. Michael Fitzsimmons.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Hervas, Sotos & Condon, Itasca, IL, Steve A. Schwarm, Asst. Atty. Gen., Topeka, KS, James R. Schirott, Phillip A. Luetkehans, Schirott & Luetkehans, Itasca, IL, for Thomas Knight, Patrick King, James E. Ryan and Robert Kilander.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Hervas, Sotos & Condon, Itasca, IL, Mary P. Wetting, Office of the Attorney General, Topeka, KS, James R. Schirott, Schirott & Luetkehans, Itasca, IL, for County of DuPage.

Before FAIRCHILD, WOOD, Jr., and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

The Supreme Court returned this case to us with these instructions:

In his complaint, petitioner also charged that the prosecutors violated his rights under the Due Process Clause through extraction of statements implicating him by coercing two witnesses and paying them money. App. 9-11, 19. The precise contours of these claims are unclear, and they were not addressed below; we leave them to be passed on in the first instance by the Court of Appeals on remand.

--- U.S. ---- - ----, 113 S.Ct. 2606, 2619, 125 L.Ed.2d 209 (1993). The Court also remanded more generally "for further proceedings consistent with this opinion." Ibid. The Supreme Court's opinion, and two prior opinions of this court, 919 F.2d 1230 (1990), 952 F.2d 965 (1992), permit us to turn to the legal issues without recapitulating the facts and history of the litigation.

Circuit Rule 54 requires the parties to file statements of position following remands from the Supreme Court. Buckley's statement did not mention the issue that Court instructed us to address; instead he asked us to remand the case for trial without further ado. Such a remand would be inappropriate, however, not only because of the Court's instructions but also because the defendants have yet to answer the complaint, and defenses other than absolute immunity remain to be considered. Defendants' claim of absolute immunity took precedence. Both this court and the Supreme Court assumed that defendants violated the Constitution and asked whether they were functioning as prosecutors in a criminal case, and thus immune, at the time of the acts. See --- U.S. at ----, ---- n. 5, 113 S.Ct. at 2609, 2616 n. 5. Other issues now come to the fore. Are the defendants entitled to qualified immunity given the state of the law when they acted? Answering this question may require the court to determine whether the complaint states a claim on which relief may be granted. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Triad Associates, Inc. v. Robinson, 10 F.3d 492 (7th Cir.1993). Justice Scalia stated that many of the claims "are probably not actionable under Sec. 1983, and so may be dismissed at the pleading stage without regard to immunity". --- U.S. at ----, 113 S.Ct. at 2620 (concurring opinion, particularly discussing the false evidence claim). Justice Kennedy, writing for himself and three others, implied agreement. Id. --- U.S. at ----, 113 S.Ct. at 2622 ("[I]t appears that the only constitutional violations these actions are alleged to have caused occurred within the judicial process."). Such expressions by a majority of the Supreme Court made it inappropriate to remand for trial without any decision on the legal sufficiency of the complaint and the scope of qualified immunity. We therefore called for new briefs The parties ... should spell out the legal foundation for the claim the Supreme Court mentioned. Moreover, because the defendants may be entitled to qualified immunity on the two claims on which the Supreme Court held that they lack absolute immunity (the bootprint and press conference claims), and because opinions filed by several Justices question the legal sufficiency of these two claims, Siegert suggests that the parties should address the legal bases of these two contentions and the possibility of qualified immunity.

Briefs and replies have been received.

Buckley protests that any issues other than absolute immunity are outside our appellate jurisdiction. As our first opinion discusses at some length, 919 F.2d at 1236-39, appellate jurisdiction of the prosecutor's appeal concerning the press conference depends on the collateral order doctrine, elaborated in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). That decision permits a public official to take an interlocutory appeal to assert both absolute and qualified immunity, and Siegert establishes that the best way to resolve a claim of qualified immunity may be to hold that a particular right was not "clearly established" at the time of the defendant's acts because it was and is not "established" at all. Buckley's cross-appeal depends not on Nixon but on a partial final judgment entered under Fed.R.Civ.P. 54(b) absolving some defendants on all claims. A litigant may defend his judgment on appeal with arguments in addition to those that persuaded the district court. Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976). Our jurisdiction is secure; the right question is whether the extent of qualified immunity is ripe for decision.

Assuredly the defense has not been waived. Although the case is five years old, defendants have yet to answer the complaint. Motions preceding the answer led to the decisions on absolute immunity. If we were to return the case to the district court, defendants could assert qualified immunity in their answer and move to dismiss under Rule 12(b)(6). If either motion were granted, Buckley would take another appeal; if a motion based on immunity were denied, defendants could appeal under Nixon. In either event, the case would come back to this panel like a yo-yo under this court's Operating Procedure 6(b). (This would not be a successive appeal proscribed by Abel v. Miller, 904 F.2d 394 (7th Cir.1990), for defendants prevailed in the district court on all claims other than the press conference, and this case is principally here on Buckley's appeal.) Time would be lost, and nothing gained, by these additional steps.

Although qualified immunity is an affirmative defense, Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), no principle forbids a court to notice that such a defense exists, is bound to be raised, and is certain to succeed when raised. So much is established for res judicata and the statute of limitations, two other affirmative defenses. Salahuddin v. Jones, 992 F.2d 447 (2d Cir.1993); Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992); Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1156 (3d Cir.1986); cf. United States National Bank of Oregon v. Independent Insurance Agents of America, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 2173, 2177-79, 124 L.Ed.2d 402 (1993) (discussing circumstances under which a court of appeals may consider issues not presented by the parties); Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir.1993) ("Of course if [the plaintiff] pleads facts that show that his suit is time-barred or otherwise without merit, he has pleaded himself out of court."). Defendants inform us that they want the benefit of qualified immunity. Because this is a legal defense, we would not defer to the district court's resolution. Courts should resolve immunity issues at the earliest possible time, preferably before allowing discovery. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Elliott v. Thomas, 937 F.2d 338, 344-45 (7th Cir.1991). That time is now. The parties have briefed the questions in response to our order, and we also have the benefit of the Solicitor General's brief on these matters for the United States as amicus curiae in the Supreme Court. Instead of dragging out this litigation, already unduly extended, we shall resolve as much of it as we can.

The Supreme Court found "unclear" the "precise contours" of Buckley's claim that the prosecutors violated the due process clause "through extraction of statements implicating him by coercing two witnesses and paying them money." --- U.S. at ----, 113 S.Ct. at 2619. It evidently expected Buckley to elaborate on remand; so did we. Instead, Buckley simply referred us to the very paragraphs of the complaint that perplexed the Justices. Despite this uncooperative stance, Buckley has supplied enough information to establish two things: (i) the prosecutors are not entitled to absolute immunity for these events, which (ii) do not violate any of his constitutional rights. The Supreme Court established a temporal line for absolute immunity: a prosecutor is not functioning as an advocate, and hence does not have absolute immunity, "before he has probable cause to have anyone arrested." --- U.S. at ----, 113 S.Ct. at 2616. According to the complaint, the interrogation and payments took place early in the investigation, while the prosecutors were just beginning to piece events together. Thus there cannot be absolute immunity. But qualified immunity is available unless the acts violated "clearly established" constitutional norms. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). What this...

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