Buckley v. Fitzsimmons

• Citation: 952 F.2d 965
• Decision Date: 02 January 1992
• Docket Number: Nos. 89-2441,89-2899 and 89-2900,s. 89-2441
• Parties: Stephen BUCKLEY, Plaintiff-Appellee--Cross-Appellant, v. J. Michael FITZSIMMONS, et al., Defendants-Appellants--Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 965

952 F.2d 965

Stephen BUCKLEY, Plaintiff-Appellee--Cross-Appellant, v. J. Michael FITZSIMMONS, et al.,

Defendants-Appellants--Cross-Appellees.

Nos. 89-2441, 89-2899 and 89-2900.

United States Court of Appeals,

Seventh Circuit.

Submitted Nov. 15, 1991.

Decided Jan. 2, 1992.

G. Flint Taylor (argued), John L. Stainthorp, Peoples Law Office, Chicago, Ill., for plaintiff-appellee.

Charles E. Hervas, James G. Sotos (argued), James R. Schirott, Michael W. Condon, Phillip A. Luetkehans, Schirott & Hervas, Itasca, Ill., Steve A. Schwarm, Asst. Atty. Gen., Mary P. Wetting, Office of Atty. Gen., Judicial Center, Topeka, Kan., for defendants-appellants.

Before WOOD, JR., and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

PER CURIAM.

The Supreme Court remanded this case to us for reconsideration in light of Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). --- U.S. ----, 112 S.Ct. 40, 116 L.Ed.2d 19 (1991). Burns potentially affects the availability of immunity on two subjects: Fitzsimmons' press conference announcing Buckley's indictment, and the prosecutors' and witnesses' preparations for trial. Buckley contends that we should reconsider our decisions concerning appellate jurisdiction, but his petition for certiorari did not present any jurisdictional question to the Supreme Court. As instructed, we limit our consideration to the effect of Burns.

Burns holds that prosecutors are not entitled to absolute immunity for advice to police concerning the propriety of hypnosis and probable cause to make an arrest. It also holds that prosecutors are absolutely immune from damages on account of injuries they inflict during the course of an ex parte probable cause hearing that led to the issuance of a search warrant. Our case is not directly governed by Burns. Indeed, our initial decision recognized that Burns was awaiting decision by the Supreme Court, and we observed that the subjects are distinct. 919 F.2d 1230, 1239, 1242 (7th Cir.1990). Still, the reasoning of a case may reach beyond its holding, and the Court has invited us to revisit the subject.

First we take up the preparation for trial. Law enforcement officials asked four persons to determine whether Buckley's shoe made the bootprint found on the Nicaricos' door. One said no; a second said maybe; a third said probably, and the fourth said yes. All but the one who said no testified against Buckley, who seeks damages from all three. He also seeks damages from the prosecutors for their "supervision of and participation in a year long pre-arrest and pre-indictment investigation". Our initial opinion held that both the witnesses and the prosecutors are entitled to absolute immunity for these activities, save to the extent they independently violated Buckley's rights. (We remanded for further proceedings on Buckley's claim that the prosecutors coerced him to give pretrial statements.) According to Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), both prosecutors and witnesses are entitled to absolute immunity for what happens in court. We remarked: "It would be a hollow immunity if the aggrieved party could turn around and say, in effect: 'True, your delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.' " 919 F.2d at 1245.

Nothing in Burns undermines that holding. It would be a hoax to proclaim immunity for presentation of testimony in court if the person aggrieved by that testimony may attack its preparation. Immunity is not limited to unprepared events at trial! Allowing evasion through litigation about preparation for trial would make no more sense than undermining judicial immunity by entertaining a suit against the law clerk who participated in the preparation of the opinion. See Mitchell v. McBryde, 944 F.2d 229 (5th Cir.1991); Oliva v. Heller, 839 F.2d 37 (2d Cir.1988). Immunities cover not only the core functions sought to be protected but also normal preparatory steps. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503-07, 95 S.Ct. 1813, 1821-23, 44 L.Ed.2d 324 (1975).

Although Burns distinguishes "prosecutorial" activities from "investigative" ones, it is word play to call prosecutors' endeavors in asking experts for assistance "investigative" in the way hypnotizing or arresting suspects is. Talking with (willing) experts is trial preparation, no different from putting evidence under a microscope in a laboratory. (Interrogating Buckley is a different matter, which is why we directed further proceedings on claims about the prosecutors' treatment of him.) Slapping the label "conspiracy" on the process, as Buckley does, adds nothing.

Imbler said it straight: "[T]he duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution". 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. Burns did not express a different view; instead it quoted this language with approval. 111 S.Ct. at 1941-42. What goes for prosecutors goes for witnesses too. We therefore reiterate the conclusion of our initial decision: unless the act of gathering and evaluating the evidence independently violates someone's rights (as, for example, by seizing persons or things in violation of the fourth amendment), both witnesses and prosecutors are entitled to the same immunity they possess when they present the evidence in court. See also Millspaugh v. Wabash County Department of Public Welfare, 937 F.2d 1172, 1175 (7th Cir.1991), concluding that Burns "reinforces Buckley's approach."

Burns bears more strongly on Buckley's claim arising out of the press conference. Like the advice to the police in Burns, the press conference took place out of court and was not part of preparation for trial. The prosecutor acted as a public official informing residents about the activities of his office--and perhaps preparing for an election campaign--rather than as an advocate. It does not follow, however, that the press conference should be assimilated to advising police to arrest a suspect, the subject of Burns. An arrest causes injury whether or not a prosecution ensues. So too a press conference may cause injury no matter what happens later--but the injury in question is defamation, which under Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), is not a constitutional wrong. See also Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Fitzsimmons does not need immunity to defeat a claim of defamation, because Buckley has none. (Buckley contends that our original decision misapplies Paul. But this topic was not raised in the Supreme Court--the petition for certiorari does not cite Paul--and so is not encompassed within the remand.)

According to Buckley, the press conference violated his rights because the publicity deprived him of a fair bail hearing and trial. Buckley protests, in other words, what happened in court--that the judge erred in refusing to dismiss the prosecution on account of prejudicial publicity, or at least to enlarge him pending trial. Because the sting (apart from the defamation) depends on judicial action, Imbler confers immunity. So we remarked in Millspaugh, 937 F.2d at 1175: "the dividing line between absolute and qualified immunity is whether the injury depends on the judicial decision. If there would be no loss but for the judge's acts, then the prosecutor or witness who induces the judge to act has absolute immunity.... Burns held a lawyer absolutely immune from liability for acts while representing the state during a probable cause hearing but only qualifiedly immune for giving legal advice to the police; the principal distinction was that the advice (and the officers' acts in reliance on that advice) could cause injury without the mediation of a judge." Fitzsimmons' press conference could cause no actionable harm without the mediation of a judge. The defamation aspect of Buckley's claim fails under Paul and Siegert, the remainder under Imbler.

Burns identifies three considerations governing the scope of prosecutorial immunity: the common law in 1871 (when Congress enacted 42 U.S.C. § 1983), the risk of vexatious litigation if immunity is unavailable, and the role of the judicial process in controlling the prosecutor if damages are unavailable. The first of these favors Buckley, for common law immunity did not extend to press conferences. This may be an artifact: if courts do not recognize particular conduct as actionable, they have no reason to discuss immunity. No court would have thought a prosecutor's announcement of an indictment actionable in the...