Barr v. Abrams

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before KAUFMAN, TIMBERS and MAHONEY; IRVING R. KAUFMAN; In dismissing the criminal charge against Barr
• Citation: Barr v. Abrams, 810 F.2d 358 (2nd Cir. 1987)
• Decision Date: 28 January 1987
• Docket Number: D,No. 541,541
• Parties: Sheldon BARR, Plaintiff-Appellant, v. Robert ABRAMS, Orestes J. Mihaly, Mark A. Tepper, Rebecca Mullane, William Bottiglieri, and Janey Renee O'Connor, Defendants-Appellees. ocket 86-7757.

Page 358

810 F.2d 358

Sheldon BARR, Plaintiff-Appellant, v. Robert ABRAMS, Orestes J. Mihaly, Mark A. Tepper, Rebecca Mullane, William Bottiglieri, and Janey Renee O'Connor, Defendants-Appellees.

No. 541, Docket 86-7757.

United States Court of Appeals Second Circuit.

Argued Dec. 10, 1986.

Decided Jan. 28, 1987.

Howard L. Jacobs, New York City, for plaintiff-appellant.

Frank J. Wenick, Asst. Atty. Gen., of New York (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Christopher Keith Hall and Richard G. Liskov, Asst. Attys. Gen., of counsel), for defendants-appellees.

Before KAUFMAN, TIMBERS and MAHONEY, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

It is an indispensable foundation of our system of justice that no man, however exalted the position he holds, is above the law. At the same time, because public officials entrusted with discretionary responsibilities must have breathing space within which to perform their functions for the common good, doctrines of immunity protect them against many claims of wrongdoing. In this case, we find ourselves between these lofty principles, in a small clearing that has been left unilluminated.

Specifically, we are called upon to decide what, if any, degree of immunity should be enjoyed by state prosecutors who are charged with violating constitutional rights while proceeding in excess of their jurisdiction.

FACTS

In March, 1983, Assistant Attorneys General Orestes J. Mihaly, Mark A. Tepper, and Rebecca Mullane commenced an investigation pursuant to Article 23-A of the New York General Business Law into alleged violations of state securities laws. Subsequently, on April 10, 1984, the Attorney General's office moved ex parte for an order requiring fifty-nine persons, including Sheldon Barr, an attorney, to appear for an examination under oath and to produce papers, books and records pertaining to the offer and sale of equipment leasing tax shelters. On April 11, 1984, Supreme Court Justice Thomas J. Hughes granted the relief requested.

Barr refused to abide by the court's order to appear. Instead, on April 27, 1984, he moved the New York Supreme Court for an order vacating so much of the April 11, 1984 order as applied to him, on the ground that his testimony would not in any way be relevant to the investigation and taking it would thus be an unwarranted invasion into his affairs. On June 5, 1984, Justice Hughes denied the motion. On February 5, 1985, the Appellate Division, First Department, unanimously affirmed that decision, and on June 11, 1985, the New York Court of Appeals denied Barr's motion for leave to appeal.

On August 7, 1985, Barr appeared with counsel at the office of the Attorney General. At the commencment of the inquiry Assistant Attorney General Tepper advised Barr that he had the right to remain silent, that anything he said would be used against him, and that he could stop the examination at any time he wished not to answer a question. On the advice of his counsel, Barr then refused to produce any documents or answer any questions, invoking his fifth amendment privilege.

On August 14, 1985, Assistant Attorney General Tepper filed a criminal information charging Barr with criminal contempt in violation of Section 215.50 of the New York Penal Law for his failure to comply with Justice Hughes's order. On the basis of the information, Criminal Court Judge Murray Mogel signed an arrest warrant for Barr's apprehension. The same day, William Bottiglieri and Jane Renee O'Connor, investigators on the staff of the Attorney General, executed the warrant by arresting Barr at his office.

At the initial hearing following his arrest, Barr contended that the criminal charges had been filed for improper purposes and that the Attorney General had no authority to commence such a criminal proceeding. In addition, Barr argued that the contempt charges were without substance. On October 21, 1985, by order and opinion, Criminal Court Judge Max Sayah dismissed the information on the ground that Barr had a fifth amendment right to refuse to answer the questions posed by Assistant Attorney General Tepper and to produce the requested documents.

Following his vindication in the New York court, Barr filed an action under 42 U.S.C. Secs. 1983 and 1985 against Attorney General Robert Abrams, Assistant Attorneys General Mihaly, Tepper and Mullane, and Investigators Bottiglieri and O'Connor. Claiming to have suffered financial, mental and physical harm, Barr sought compensatory damages of $30 million plus punitive damages of $30 million. Barr also sought to enjoin the prosecutors from utilizing any evidence obtained in violation of his constitutional rights.

Specifically, Barr alleged that the defendants had maliciously, without jurisdiction, and for the improper purpose of punishing him for exercising his fifth amendment rights, instigated criminal contempt proceedings against him and obtained an arrest warrant leading to his unlawful arrest. Barr further alleged that the prosecuting attorneys, acting in concert with their staff investigators, had unlawfully effected his arrest and imprisonment. Finally, Barr alleged that the prosecutors had threatened and harassed prospective witnesses, unlawfully seized property, submitted false statements to the courts, slandered Barr, and illegally conspired with the Internal Revenue Service.

On August 7, 1986, 641 F.Supp. 547, the district court granted the defendants' motion for summary judgment. In a comprehensive opinion, Judge Leval ruled that pursuant to Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), absolute immunity protected the prosecutors from a civil rights suit based on their actions in filing the criminal information and applying to the New York court for an arrest warrant. In any event, Judge Leval held, the prosecutors enjoyed qualified immunity for these actions pursuant to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Judge Leval further decided that Barr's remaining claims were vague and conclusory and subject to dismissal for failure to state a cause of action, on the ground of prosecutorial immunity, or both. Finally, Judge Leval ruled that even if any of the claims surmounted all of these hurdles, Barr's action still would have to be dismissed or stayed based on the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which requires that a federal court ordinarily abstain from entertaining a lawsuit that interferes with a state's conduct of a criminal proceeding.

DISCUSSION

A

In Imbler the Supreme Court held that there is absolute immunity from Sec. 1983 liability for those prosecutorial activities "intimately associated with the judicial phase of the criminal process." Imbler, supra, 424 U.S. at 430, 96 S.Ct. at 995. In Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981), adopting the Imbler holding, we stated that the protected "quasi-judicial" activities include the initiation of a prosecution and the presentation of the government's case. On the other hand, we pointed out where the prosecutors act in an "investigative" or "administrative" capacity, only qualified immunity operates. Kavanagh, supra, 640 F.2d at 452; See also Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984).

Barr concedes that in filing the information charging him with contempt and in applying to the New York court for an arrest warrant based on that charge, the Attorney General and his deputy prosecutors were acting in their core court-related role within the meaning of Imbler. Barr seeks to avoid absolute immunity, however, by arguing that a prosecutor initiating a prosecution loses the protection of Imbler where state law did not empower the prosecutor to bring the charges.

The question thus raised was not specifically decided by the Supreme Court in Imbler. On the contrary, the court took pains in that case to note that the challenged acts of the state prosecutor were "within the scope of his duties." Imbler, 424 U.S. at 410, 420, 96 S.Ct. at 985, 990. Nor can we construe Taylor or Powers as foreclosing Barr's contention. For in those cases, we simply adopted and applied Imbler. See Kavanagh, supra, 640 F.2d at 452, 453; Coe, supra, 728 F.2d at 103, 104.

We are persuaded, however, that a crabbed reading of Imbler, and a holding that a prosecutor is without absolute immunity the moment he strays beyond his jurisdictional limits, would do violence to its spirit. The purpose of the immunity rule is to give to public officials entrusted with sensitive tasks a protected area of discretion within which to carry out their responsibilities. Because we believe that the rule Barr proposes would "cause a deflection of the prosecutor's energies from his public duties," Imbler, 424 U.S. at 423, 96 S.Ct. at 991, and force him to "shade his decisions instead of exercising the independence of judgment required by his public trust," Imbler, 424 U.S. at 423, 96 S.Ct. at 991, we reject it.

It does not follow that the issue whether a prosecutor is acting within his jurisdiction has no relevance to the type of immunity he enjoys. In Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978), the Supreme Court stated that judges are absolutely immune from Sec. 1983 actions only for judicial acts for which they have at least a semblance of jurisdiction. Where a judge proceeded in "the clear absence of all jurisdiction," the Court ruled, a different result would be in order.

We believe the same rule should apply here. Since it is well settled that the immunity of prosecutors is based on the same considerations that underlie...