Anthony v. Baker

• Decision Date: 05 February 1992
• Docket Number: No. 90-1099,90-1099
• Citation: 955 F.2d 1395
• Parties: Robert Carl ANTHONY, Plaintiff-Appellee, v. Daniel G. BAKER, individually and as Deputy Sheriff of the County of El Paso, Colorado, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1395

955 F.2d 1395

Robert Carl ANTHONY, Plaintiff-Appellee, v. Daniel G. BAKER, individually and as Deputy Sheriff of the

County of El Paso, Colorado, Defendant-Appellant.

No. 90-1099.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1992.

Phillip A. Vaglica (Kathleen A. Carlson, of Susemihl, Lohman, Kent, Carlson & McDermott, P.C., Colorado Springs, with him on the briefs), Colorado Springs, for defendant-appellant.

Elvin L. Gentry (Owen Nitz, of Nitz, Walton & Hammer, Las Vegas, Nev., with him on the brief), of Elvin L. Gentry, P.C., Colorado Springs, for plaintiff-appellee.

Before HOLLOWAY, ANDERSON and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Defendant-appellant Daniel Baker appeals from an interlocutory order of the district court denying his motion to dismiss and motion for partial summary judgment. On appeal, Baker contends (1) that the district court incorrectly applied the "law of the case" doctrine and (2) that he is entitled to absolute immunity from civil liability for testimony he provided to the grand jury of El Paso County, Colorado and to the state trial judge in a preliminary hearing.

We have jurisdiction over an interlocutory decision denying absolute immunity under the "collateral order" doctrine. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979); Abney v. United States, 431 U.S. 651, 657-63, 97 S.Ct. 2034, 2038-43, 52 L.Ed.2d 651 (1977); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A complete recitation of the facts surrounding this case can be found in a prior appeal, Anthony v. Baker, 767 F.2d 657, 659-61 (10th Cir.1985) [hereinafter Anthony v. Baker I.] Here, we discuss only those facts relevant to this appeal. Plaintiff Robert Anthony filed this action against defendant Baker under 42 U.S.C. § 1983 for malicious prosecution. Baker, a deputy sheriff of the Sheriff's Office of El Paso County, Colorado, investigated a fire that occurred in the Springs Motor Inn on September 16, 1980. Anthony, the general manager of the inn at the time of the fire, was indicted, tried and acquitted for felony theft based on insurance fraud in connection with the fire.

Anthony's malicious prosecution complaint challenges Baker's motivation and conduct in nearly all phases of the investigation and resulting criminal prosecution against Anthony. Focusing on the grand jury and probable cause proceedings, Anthony's complaint alleges the following: with Baker's "procurance, advice, and assistance" and based partially on Baker's false assertions, the grand jury began an investigation of the alleged arson; Baker presented "maliciously false, misleading and distorted evidence and testimony" to the grand jury, and these acts led to the grand jury's indictment of Anthony; after a judge dismissed the indictment, a prosecuting attorney filed a criminal information based on "false or created" information supplied by Baker; during the ensuing preliminary hearing on whether there was probable cause to bind Anthony over for trial, Baker testified and "again presented false, distorted, misleading and equivocal testimony"; Baker's false testimony at the probable cause hearing and the transcript from the grand jury proceedings caused the court to find probable cause when probable cause would not have been found "but for the false, contrived and misleading evidence presented by Baker."

Baker moved to dismiss Anthony's complaint, or alternatively for partial summary judgment, on the grounds that Baker is absolutely immune from civil liability for his testimony before the state grand jury and the state trial judge at a preliminary hearing. The district court denied Baker's motion because it found that, in Anthony v. Baker I, we had already ruled against Baker on the issues presented in Baker's motions. The district court also noted that Baker presented the absolute immunity argument in a previous motion to dismiss filed in 1986. This motion was denied by a different district court judge on the grounds that, in Anthony v. Baker I, we ruled against Baker on the absolute immunity issue. In denying the present motion, the district court also determined that it was bound by the prior determinations of the issues presented in Baker's motion under the "law of the case" doctrine. ¹

II. DISCUSSION

We must determine if Anthony v. Baker I decided whether Baker is entitled to absolute immunity for his testimony before a state grand jury and before a state trial judge at a preliminary hearing. If these issues were decided in Anthony v. Baker I, then the district court correctly determined it was bound by that decision as the law of the case. Eastern Cherokees v. United States, 225 U.S. 572, 582, 32 S.Ct. 707, 711, 56 L.Ed. 1212 (1912) ("When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case.") (citation omitted).

Whether Anthony v. Baker I settled the issues of absolute immunity for Baker's grand jury and state preliminary hearing testimony is a question of law. Accordingly, we use a de novo standard of review. Fox v. Mazda Corp. of Am., 868 F.2d 1190, 1194 (10th Cir.1989).

A. IMMUNITY FOR DEPUTY SHERIFF BAKER'S GRAND JURY TESTIMONY

To resolve whether Anthony v. Baker I settled the issue of absolute immunity, we begin by examining the proceedings that led up to our earlier decision. In July, 1983--one year after Anthony filed his suit and before the case had proceeded to trial--defendant Baker moved to dismiss or alternatively for partial summary judgment. Baker argued that the complaint against him should be dismissed because the action was based on his privileged testimony before the jury and grand jury. In October, 1984, the district court granted Baker's motion, ruling that under Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), Baker's testimony "before the grand jury or at plaintiff's trial cannot form the basis of plaintiff's 1983 claim."

The district court's recognition of immunity for Baker's trial and grand jury testimony did not dispose of Anthony's § 1983 claim because Anthony's complaint "alleged other facts which [fell] outside the scope of immunity defined in Briscoe." Accordingly, the district court allowed the case to proceed to trial. After the trial, the district court directed a verdict in favor of Baker, finding that there was insufficient evidence to allow recovery on Anthony's § 1983 claim. Anthony appealed to this court, and we rendered a decision on that appeal in Anthony v. Baker I.

In Anthony v. Baker I, one of the issues we addressed was whether the district court correctly held in its pretrial ruling on summary judgment that Baker was protected by absolute immunity for his grand jury testimony and therefore that none of Baker's grand jury testimony could form the basis of Anthony's § 1983 claim. After reviewing our earlier decision, we conclude that Anthony v. Baker I decided only that the district court erred in granting Baker absolute immunity for his entire grand jury testimony. On his prior appeal to this Court, Anthony specifically argued that the district court erred in finding that, under Briscoe v. LaHue, Baker's testimony before the grand jury could not form the basis of Anthony's § 1983 action for malicious prosecution. Anthony v. Baker I, 767 F.2d at 662. In response, Baker argued that he was entitled to immunity under Briscoe v. LaHue for his testimony during Anthony's criminal prosecution in state district court. Id.

After considering these arguments, we "concurr[ed] in Anthony's contention that, contrary to the district court's finding, Briscoe v. LaHue does not afford immunity for the testimony of the defendants before the Grand Jury." Id. at 663. We did not decide that all grand jury witnesses lack absolute immunity, or even that Baker lacks immunity for each and every word of his grand jury testimony. Instead, without significant discussion, we reversed the district court's holding affording blanket immunity for all statements at the grand jury proceeding, and we left it to the district court on remand to define the scope of immunity that attaches to grand jury testimony.

The district court erroneously dismissed Baker's present summary judgment motion on law of the case grounds because Anthony v. Baker I did not determine the scope of immunity that attaches to Baker's grand jury testimony. Anthony v. Baker I decided only that the district court erred in granting Baker absolute immunity for each and every statement uttered during the grand jury proceedings. Therefore, we must now proceed to define the scope of Baker's immunity for his grand jury testimony.

In addressing questions of absolute immunity under § 1983, we take a functional approach, examining such factors as the recognition of immunity at common law, the risk of vexatious litigation, and the availability of safeguards other than civil litigation to help prevent abuses of authority. Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 1941-44, 114 L.Ed.2d 547 (1991); Mitchell v. Forsyth, 472 U.S. 511, 521-22, 105 S.Ct. 2806, 2812-13, 86 L.Ed.2d 411 (1985). As we analyze this immunity question, we first must focus on the nature of the function Baker performed, rather than on Baker's identity as a deputy sheriff. Forrester v. White, 484 U.S. 219, 230, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988). If we cannot conclude that Baker's claim of absolute immunity would have been recognized at common law, we need not proceed beyond an examination of the immunity available at common law. Robinson v. Volkswagenwerk AG, 940 F.2d 1369,...