Rehberg v. Paulk
| Decision Date | 16 July 2010 |
| Docket Number | No. 09-11897.,09-11897. |
| Citation | 611 F.3d 828 |
| Parties | Charles A. REHBERG, Plaintiff-Appellee,v.James P. PAULK, in his individual capacity, Kenneth B. Hodges, III, in his individual capacity and in his official capacity as District Attorney of Dougherty County Kelly R. Burke, in his individual capacity, Defendants-Appellants,Dougherty County, Defendant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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John Custer Jones, Marietta, GA, Michelle J. Hirsch, Devon Orland, State of GA Dept. of Law, Atlanta, GA, for Appellants.
Cindy A. Cohn, Kevin Bankston, Jennifer Granick, Kurt Bradford Opsahl, Electronic Frontier Found., San Francisco, CA, Bryan A. Vroon, Atlanta, GA, for Rehberg.
Paul K. Ohm, University of Colorado Law School, Boulder, CO, Ralph O. Scoccimaro, Brown & Scoccimaro, P.C., Albany, GA, for Amicus Curiae.
Appeal from the United States District Court for the Middle District of Georgia.
ON PETITION FOR PANEL REHEARING
Before CARNES, HULL and ANDERSON, Circuit Judges.
Upon consideration of Plaintiff-Appellee's petition for rehearing and to the extent it seeks panel rehearing, we vacate the prior opinion in this case, issued on March 11, 2010 and published at 598 F.3d 1268 (11th Cir.2010), and substitute the following opinion in its place. Plaintiff-Appellee's petition for panel rehearing is granted in part and denied in part.
In this § 1983 action, Plaintiff Charles Rehberg sued former District Attorney Kenneth Hodges, specially appointed prosecutor Kelly Burke, and Chief Investigator James Paulk, alleging federal claims for malicious prosecution, retaliatory investigation and prosecution, evidence fabrication, and conspiracy to violate Rehberg's constitutional rights. Defendants Hodges Burke, and Paulk, in their individual capacities, appeal the district court's denial of absolute and qualified immunities. After review and oral argument, we affirm in part and reverse in part.
We review Rehberg's version of the events as alleged in his complaint, accepting them as true.1
From September 2003 to March 2004, Plaintiff Rehberg sent anonymous faxes to the management of Phoebe Putney Memorial Hospital (the “hospital”). The faxes criticized and parodied the management and activities of the hospital.
Defendant Hodges, then the District Attorney of Dougherty County, Georgia, and Defendant Paulk, the Chief Investigator in the District Attorney's Office, investigated Rehberg's actions as a “favor” to the hospital, to which Hodges and Paulk are alleged to have political connections. Rehberg alleges Hodges and Paulk lacked probable cause to initiate a criminal investigation of him.
From October 2003 to February 2004, Defendants Hodges and Paulk prepared a series of subpoenas on Hodges's letterhead and issued the subpoenas to BellSouth and Alltel (later Sprint), requesting Rehberg's telephone records. “Mr. Paulk also prepared and issued a subpoena to Exact Advertising, the Internet service provider of one of Mr. Rehberg's email accounts, and obtained Mr. Rehberg's personal e-mails that were sent and received from his personal computer.” Compl. ¶ 37. Although no grand jury was impaneled at the time, the subpoenas purported to require appearance before a Dougherty County grand jury. Rehberg's case was not presented to a grand jury until December 14, 2005.
Defendant Paulk gave the results of the subpoenas, consisting of Rehberg's personal emails and phone records, to private civilian investigators, who allegedly directed the substance of the subpoenas. These civilian investigators paid the District Attorney's Office for Rehberg's information, often making payments directly to BellSouth and the other subpoenaed parties, allegedly to pay debts of the District Attorney's Office.
After receiving unfavorable press coverage of his relationships with the hospital, Hodges recused himself from prosecuting Rehberg. Burke was appointed a special prosecutor in Hodges's place. Hodges continued to supervise Paulk and remained in communication with Burke throughout the investigation, but he “never served as the actual prosecutor of the charges against Mr. Rehberg before the Grand Jury.”
On December 14, 2005, a grand jury indicted Rehberg on charges of aggravated assault, burglary, and six counts of “harassing phone calls.” Burke was the prosecutor, and Paulk was the sole complaining witness against Rehberg before the grand jury. The first indictment alleged Rehberg assaulted Dr. James Hotz after unlawfully entering Dr. Hotz's home. In fact, Rehberg has never been to Dr. Hotz's home, and Dr. Hotz never reported an assault or burglary to law enforcement agencies. Paulk later admitted that he never interviewed any witnesses or gathered evidence indicating Rehberg committed an aggravated assault or burglary. And the alleged “harassing” phone calls to Dr. Hotz all were related to the faxes Rehberg had already sent criticizing the hospital.
The City of Albany Police Department2 did not participate in the investigation. Paulk stated that he and Hodges initiated and handled the investigation on their own because they lacked confidence in the police department's ability to handle the investigation.
Rehberg contested the legal sufficiency of the first indictment. On February 2, 2006, Defendant Burke dismissed and nol-prossed the first indictment.
On February 15, 2006, Defendants Burke and Paulk initiated charges before a second grand jury. Paulk and Dr. Hotz appeared as witnesses. The grand jury issued a second indictment, charging Rehberg with simple assault against Dr. Hotz on August 22, 2004 and five counts of harassing phone calls.
Rehberg contested the sufficiency of the second indictment too. Rehberg alleged he was “nowhere near Dr. Hotz on August 22, 2004,” and “[t]here was no evidence whatsoever that Mr. Rehberg committed an assault on anybody as he was charged.” At a pretrial hearing on April 10, 2006, Defendant Burke announced the second indictment would be dismissed, but Burke did not dismiss it. On July 7, 2006, the state trial court ordered it dismissed.
On March 1, 2006, Defendants Burke and Paulk appeared before a third grand jury and secured a third indictment against Rehberg, charging him with simple assault and harassing telephone calls. At some unspecified time, Rehberg was arrested and briefly detained pursuant to an arrest warrant issued as a result of the second and third indictments.
On May 1, 2006, the state trial court issued two orders dismissing all charges against Rehberg because the third indictment did not sufficiently charge Rehberg with a criminal offense.
The three indictments against Rehberg were widely reported in the local press. Defendant Burke conducted interviews with the press and issued statements saying: (1) “[I]t is never free speech to assault or harass someone, no matter who they are and no matter how much you don't like them,” and (2) “It would be ludicrous to say that an individual has the right to go onto someone else's property and burn a cross under the guise of free speech, which is tantamount to what these defendants are claiming.”
Plaintiff Rehberg filed a verified complaint against Defendants Hodges, Burke, and Paulk, in their individual capacities. Rehberg's complaint alleges ten counts, including these four federal § 1983 claims at issue in this appeal: 3 (1) malicious prosecution against Hodges and Paulk in violation of Rehberg's Fourth and Fourteenth Amendment rights (Count 6); (2) retaliatory investigation and prosecution against Hodges and Paulk, for their alleged retaliation against Rehberg because he exercised First Amendment free speech rights (Count 7); (3) participation in evidence fabrication, calling Paulk to give false testimony to the grand jury, and giving false statements to the media against Burke only (Count 8); and (4) conspiracy to violate Rehberg's constitutional rights under the First, Fourth, and Fourteenth Amendments, against Hodges, Burke, and Paulk (Count 10).4
Defendants Hodges, Burke, and Paulk moved to dismiss these counts pursuant to Federal Rule of Civil Procedure 12(b)(6). They claimed absolute immunity, and, alternatively, qualified immunity. The district court denied the Defendants' motions.
Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal the district court's denials of immunity as to Rehberg's above four federal constitutional claims.5 We discuss absolute and qualified immunity and then Rehberg's claims.
Traditional common-law immunities for prosecutors apply to civil cases brought under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S.Ct. 984, 993-94, 47 L.Ed.2d 128 (1976). “[A]t common law, ‘[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.’ ” Malley v. Briggs, 475 U.S. 335, 342, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986) (quoting Imbler, 424 U.S. at 437, 96 S.Ct. at 998). In § 1983 actions, prosecutors have absolute immunity for all activities that are “ ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein, --- U.S. ----, 129 S.Ct. 855, 860, 172 L.Ed.2d 706 (2009) (quoting Imbler, 424 U.S. at 430, 96 S.Ct. at 995); accord Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999).
Absolute immunity does not depend entirely on a defendant's job title, but involves a functional approach granting immunity based on conduct. Jones, 174 F.3d at 1282. This functional approach looks to “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993); accord Imbler, 424 U.S. at 431 n. 33, ...
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