500 F.2d 1301 (9th Cir. 1974), 72-2518, Imbler v. Pachtman

Docket Nº:72-2518.
Citation:500 F.2d 1301
Party Name:Paul Kern IMBLER, Plaintiff-Appellant, v. Richard PACHTMAN et al., Defendants-Appellees.
Case Date:July 12, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1301

500 F.2d 1301 (9th Cir. 1974)

Paul Kern IMBLER, Plaintiff-Appellant,


Richard PACHTMAN et al., Defendants-Appellees.

No. 72-2518.

United States Court of Appeals, Ninth Circuit.

July 12, 1974

Page 1302

Roger S. Hanson (argued) of Hanson & Milman, Beverly Hills, Cal., for plaintiff-appellant.

Richard G. Brungard, Deputy County Counsel (argued), Los Angeles, Cal., for defendants-appellees.

Before KOELSCH, HUFSTEDLER and KILKENNY, Circuit Judges.

KOELSCH, Circuit Judge:

This matter has a long history. In 1961 plaintiff-appellant Imbler was convicted on a murder charge in Los Angeles Superior Court and sentenced to death. The California Supreme Court affirmed. People v. Imbler, 57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304 (1962). Thereafter, Imbler's state habeas corpus petition was denied following an evidentiary hearing. In re Imbler, 60 Cal.2d 554, 35 Cal.Rptr. 293, 387 P.2d 6 (1963). A subsequent writ set aside the death penalty, In re Imbler, 61 Cal.2d 556, 39 Cal.Rptr. 375, 393 P.2d 687 (1964); and when the state declined to prosecute another 'penalty trial,' Imbler was given a life sentence.

In 1969 the United States District Court, concluding that Imbler's conviction was secured in part by testimony the prosecution knew, or had strong reason to know, was perjured, granted him a writ of habeas corpus. Imbler v. Craven, 298 F.Supp. 795, 809 (1969). We affirmed, Imbler v. Craven, 424 F.2d 631 (9th Cir. 1970), cert. denied, 400 U.S. 865, 91 S.Ct. 100, 27 L.Ed.2d 104.

Imbler then brought this suit for damages. So far as need be noticed, his allegations in substance are that the defendant Pachtman, the district attorney who prosecuted the criminal charges on behalf of the State of California, had knowingly, maliciously, etc., used perjured testimony to secure a conviction and hence was liable in damages for violation of his, Imbler's, civil rights. The district judge dismissed Imbler's complaint as to Pachtman without leave to amend; he ruled that Pachtman, as a prosecuting attorney, enjoyed an immunity from suit for acts committed 'in the performance of duties constituting an integral part of the judicial process . . .', Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1968); see Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); and that as a matter of law the acts complained of came within a quasi-judicial prosecutorial function to which immunity attached. Imbler appeals. 1 We affirm.

The district court's dismissal of appellant's claim was consistent with our prior decisions. Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971); Donovan v. Reinbold, 433 F.2d 738, 743 (9th Cir. 1970); Marlowe v. Coakley, supra; Clark v. Washington, 366 F.2d 678 (9th Cir. 1966); Robichaud v. Ronan, supra; Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Harmon v. Superior Court, 329 F.2d 154 (9th Cir. 1964); Sires v. Cole,320 F.2d 877 (9th Cir. 1963). The acts of the defendant which allegedly harmed appellant occurred during prosecutorial activities which can only be characterized as an 'integral part of the judicial process.' 2 All involved the questioning of

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a witness during the 1961 criminal prosecution. 3

Appellant, in effect, urges us to reject the doctrine of prosecutorial immunity and overrule a long line of this court's decisions. We decline to do so. The protection given a prosecutor acting in his quasi-judicial role protects not simply the prosecutor, but, more importantly, the effective operation of the judicial process, and hence the 'common good.' Because both the honest and dishonest are insulated, on occasion an injury without redress inevitably results; but, as well expressed by Judge Learned Hand:

'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The jurisdiction for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.' Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

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As indicated earlier, the issue is not 'res nova' in this circuit. 4 The 'balance between the evils inevitable in either alternative' has consistently been struck in favor of protecting honest criminal prosecution, at the expense of those injured by scoundrels, 5 by granting immunity from suit to all prosecutors. 6

The judgment is affirmed.

KILKENNY, Circuit Judge (dissenting):

Although appellant's 22 page amended complaint, with 23 pages of exhibits, is admittedly repetitious and in places ambiguous, there is no question but that it charges appellee, Pachtman, with knowingly, wilfully and maliciously using eight different items of false material testimony in securing appellant's initial conviction. If this is true, I believe that appellee violated appellant's procedural due process rights, and that he should be stripped of his official or representative character and subjected in his person to the consequences of his individual conduct.

The Supreme Court decision in Scheuer, Adm'x. v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the most recent expression of the Court on the overall subject, convinces me that, on these charges, the appellee does not have quasi-judicial, or any other immunity. True enough, Scheuer involved state executive, rather than judicial immunity. However, the Court in Scheuer, analyzed the long history behind executive, as well as judicial immunity, and noted that there was a '. . . similarity in the controlling policy considerations in the case of high echelon executive officers and judges . . .' (94 S.Ct. at 1691, n. 8); the policy considerations revolving, in large measure, around the continued assurance that public officials will continue to vigorously perform their public functions without threat of harassment by civil suit. All this being said, the Supreme Court went on to hold that high executive officers do not have an unqualified immunity from civil suit. The Court emphasized:

'Under the criteria developed by precedents of this Court, § 1983 would

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be drained of meaning were we to hold that the acts of a governor or other high executive officer has 'the qualify of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government.' Sterling v. Constantin, 287 U.S. 378, 397 (53 S.Ct. 190, 77 L.Ed. 375) (1932).' 94 S.Ct. at 1692.

If, as held in Scheuer, the highest executive officer of a great state is not clothed with absolute immunity and, assuming that the policy considerations behind executive immunity are similar to those behind judicial immunity, then it must necessarily follow that a prosecuting attorney, shielded only by a form of judicial immunity (Robichaud v. Ronan, 351 F.2d 533 (CA9 1965)), should not be elevated to a status which would place him above the chief executive officer of his state. Otherwise, the office of...

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