Curtis v. Bembenek

Decision Date23 February 1995
Docket NumberNo. 92-3434,92-3434
Citation48 F.3d 281
PartiesRandall CURTIS, Plaintiff-Appellant, v. Brian BEMBENEK, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Randall Curtis, pro se.

Gina Brock, Chicago, IL (argued), for Randall Curtis.

Michael G. Cainkar, Chicago, IL (argued), for Brian Bembenek.

Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

In this appeal from the dismissal of a civil rights suit brought by a prisoner, the principal question before us is whether a police officer who gives allegedly perjurious testimony during a preliminary hearing and a pretrial suppression hearing is entitled to absolute witness immunity from liability under 42 U.S.C. Sec. 1983 for damages caused by his testimony. We believe that a police officer who testifies in court at these adversarial pretrial hearings is absolutely immune from Sec. 1983 liability, and we affirm.

BACKGROUND

Although the details of this case are sketchy, the following facts can be gleaned from the complaint. Plaintiff Randall Curtis was arrested without a warrant at the scene of a crime sometime before March 21, 1990 by the Burbank Police Department and was taken into custody. 1 A preliminary hearing was held in Cook County Circuit Court to determine whether probable cause existed to support the warrantless arrest. Defendant Brian Bembenek, a City of Burbank police officer, was the only witness to testify at the preliminary hearing. At the hearing, Curtis alleged, Officer Bembenek "falsely proclaimed [that] at the scene [of the crime] he conducted an on scene investigation and obtain[ed] crucial and vital information from victim and parent which warrant my arrest and confinement." (Compl. at 7.) Aside from Officer Bembenek's "malicious and false testimony," Curtis further alleged, "there was no other testimony submitted at the hearing to cause or perpetuate my false imprisonment." Id. Curtis added that Bembenek's perjured testimony was the "direct cause of my false imprisonment." Id.

Several months later, however, at the hearing on Curtis' motion to quash arrest and suppress evidence, Officer Bembenek allegedly changed his testimony. According to Curtis, Bembenek testified at the suppression hearing that he did not speak to the victim or the parent at the scene, but only saw the victim in the car shaking her head On July 14, 1992, Curtis, then an Illinois prisoner on mandatory supervised release, filed a pro se complaint in the district court seeking compensatory and punitive damages under 42 U.S.C. Sec. 1983 3 against Bembenek. Officer Bembenek moved to dismiss the complaint, arguing that as a duly appointed government law enforcement officer, he was entitled to absolute immunity under Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Curtis did not respond to the motion to dismiss.

yes. To corroborate his claim that Bembenek had committed perjury, Curtis alleged that a second police officer testified at the suppression hearing that Bembenek had no opportunity to speak to the victim or the parent at the scene. 2

The district court granted the motion to dismiss without leave to amend. Relying on Briscoe, Judge Lindberg observed that "[t]he Supreme Court has made clear that governmental witnesses testifying in any court action are entitled to absolute immunity from Sec. 1983 liability." Curtis v. Bembenek, No. 92 C 3733 (N.D.Ill. Sept. 22, 1992). The judge added that "[s]ince the only conduct referred to in Curtis's complaint involves testimony in a state criminal proceeding, the court finds that defendant is entitled to absolute immunity." Id.

On October 6, 1992, Curtis, acting pro se, filed a motion to reconsider and a notice of appeal. After the parties filed their appellate briefs, this court appointed counsel for Curtis.

ANALYSIS

Curtis challenges the district court's ruling that Bembenek enjoys absolute witness immunity from liability under Sec. 1983 for his testimony at the pretrial proceedings. He contends that the district court erred in dismissing his complaint because this circuit has not extended absolute immunity to police officers who commit perjury during testimony at adversarial pretrial proceedings. He also argues that the district court erred by failing to ensure that he, a prisoner proceeding pro se, was notified of the consequences of failing to respond to the motion to dismiss. Under Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), he contends, he was entitled to such notice.

In considering these issues, we accept all well-pleaded facts as true, draw all inferences in favor of the plaintiff, and resolve all ambiguities in favor of the plaintiff. Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir.1994). Moreover, in reviewing a pro se complaint, we must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Del Raine v. Williford, 32 F.3d 1024, 1050 (7th Cir.1994).

I. Absolute Immunity for Witnesses at Adversarial Pretrial Proceedings

We begin our analysis of the applicability of absolute immunity under Sec. 1983 with the Supreme Court's opinion in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

A. Briscoe v. LaHue and Its Progeny

In Briscoe, the Court held that a police officer had absolute immunity from suit under Sec. 1983 for giving perjured testimony at the defendant's criminal trial. The Court rooted its holding in the absolute immunity granted at common law to witnesses who participated in judicial proceedings. At common law, the Court observed, courts were concerned that a witness who was apprehensive about subsequent damages liability might be reluctant to testify, or if the witness did testify, might distort his or her testimony because of fear of liability. Id. at 333, 103 S.Ct. at 1114. Protection for witnesses in the form of absolute immunity was aimed to allay these concerns. Section 1983, the While Briscoe addressed the availability of absolute immunity from Sec. 1983 liability for testimony given at trial, the issue presented here is whether absolute immunity extends to allegedly perjured testimony given by a police officer during certain pretrial proceedings--specifically, a preliminary hearing to determine whether probable cause existed to support a warrantless arrest, and again at a hearing on a motion to quash arrest and suppress evidence. The Briscoe Court explicitly declined to decide whether a witness is absolutely immune from suit based on testimony given at pretrial proceedings such as probable cause hearings, id. at 329 n. 5, 103 S.Ct. at 1112 n. 5, and this question represents one of first impression in this circuit.

Court added, did not abrogate the absolute immunity existing at common law. Id. Finally, the Briscoe Court noted, functional categories, rather than the status of the defendant, governed immunity analysis: because police officers on the witness stand performed the same functions and were subject to the same procedural safeguards as any private witnesses, these officers should be entitled to the same absolute immunity from liability under Sec. 1983 that private witnesses enjoyed. Id. at 342-43, 103 S.Ct. at 1119-20.

This court has held that police officers testifying before a grand jury are entitled to absolute immunity. Kincaid v. Eberle, 712 F.2d 1023, 1023-24 (7th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983). In Kincaid, a one paragraph, per curiam opinion based on a pro se brief and decided without oral argument, we noted that "the argument for absolute immunity is stronger in the grand jury setting than in the trial setting, because false testimony before the grand jury is less harmful than false testimony at trial; the grand jury can indict, but cannot convict." Id. at 1024. Kincaid, however, has not been extended beyond the grand jury context, see Juriss v. McGowan, 957 F.2d 345, 348 (7th Cir.1992) (Kincaid absolute immunity applied only to defendant officer's grand jury testimony, and not to officer's making of alleged false arrest), and at least two other courts have called into question Kincaid 's precedential value. See Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254, 261 n. 16 (5th Cir.) (criticizing Kincaid as unpersuasive and "cursory in the extreme"), modified on other grounds, 744 F.2d 1131 (5th Cir.1984); White v. Frank, 680 F.Supp. 629, 636 n. 10 (S.D.N.Y.1988) (describing the opinion as being of "uncertain ... persuasiveness" and "lack[ing] any in-depth consideration of the various factors at work in the Briscoe decision"), appeal dismissed on other grounds, 855 F.2d 956 (2d Cir.1988).

The majority of the circuits have afforded absolute immunity to witnesses, including police officers, charged under Sec. 1983 for their allegedly perjurious testimony at various types of pretrial proceedings. See Moore v. McDonald, 30 F.3d 616, 619-20 (5th Cir.1994) (deputy sheriff's testimony in criminal defendant's pretrial suppression hearing absolutely immune); Strength v. Hubert, 854 F.2d 421, 423-25 (11th Cir.1988) (investigator for state attorney general's office entitled to absolute immunity regarding grand jury testimony); Daloia v. Rose, 849 F.2d 74, 75-76 (2d Cir.) (FBI agents and police officer entitled to absolute immunity for testimony at pretrial suppression hearing), cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988); Williams v. Hepting, 844 F.2d 138, 142-43 (3d Cir.) (prosecution witness who testified at preliminary hearing absolutely immune), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988); Holt v. Castaneda, 832 F.2d 123, 125-27 (9th Cir.1987) (police officer received absolute immunity for testimony during preliminary examination and a hearing on motion to quash search warrants), cert. denied, 485 U.S. 979, 108 S.Ct. 1275, 99 L.Ed.2d 486 (1988); Macko v....

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