Bernard v. County of Suffolk

• Decision Date: 30 January 2004
• Docket Number: No. 02-9313.,02-9313.
• Citation: 356 F.3d 495
• Parties: Michael BERNARD, Ronald Kluesener, and Douglas Jacob, Plaintiffs-Appellees, v. COUNTY OF SUFFOLK and James M. Catterson, Jr., individually and in his capacity as Suffolk County District Attorney, Defendants, Richard T. Dunne, individually and in his capacity as Suffolk County Assistant District Attorney, Christopher A. McPartland, individually and in his capacity as Suffolk County Assistant District Attorney, and Peter Kelleher, individually and in his capacity as Suffolk County Detective, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

356 F.3d 495

Michael BERNARD, Ronald Kluesener, and Douglas Jacob, Plaintiffs-Appellees, v. COUNTY OF SUFFOLK and James M. Catterson, Jr., individually and in his capacity as Suffolk County District Attorney, Defendants, Richard T. Dunne, individually and in his capacity as Suffolk County Assistant District Attorney, Christopher A. McPartland, individually and in his capacity as Suffolk County Assistant District Attorney, and Peter Kelleher, individually and in his capacity as Suffolk County Detective, Defendants-Appellants.

No. 02-9313.

United States Court of Appeals, Second Circuit.

Argued: June 19, 2003.

Decided: January 30, 2004.

Appeal from the United States District Court for the Eastern District of New York, Joanna Seybert, J.

COPYRIGHT MATERIAL OMITTED

Orrit Hershkovitz, (Paul F. Millus, of counsel) Snitow, Kanfer, Holtzer & Millus, New York, New York, for Defendants-Appellants.

William D. Wexler, (Kevin G. Snover, of counsel), North Babylon, New York, for Plaintiffs-Appellees.

Before: B.D. PARKER and RAGGI, Circuit Judges, SWAIN, District Judge.¹

RAGGI, Circuit Judge.

Defendants-Appellants, Richard T. Dunne and Christopher A. McPartland, Suffolk County Assistant District Attorneys, and Peter Kelleher, a Suffolk County Detective, appeal from an order of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge), denying their motion to dismiss, on the ground of absolute prosecutorial immunity, the complaint of Plaintiffs-Appellees, Michael Bernard, Ronald Kluesener, and Douglas Jacob, filed pursuant to 42 U.S.C. § 1983. Plaintiffs accuse defendants of misusing and conspiring to misuse their public offices and the judicial process for political purposes by investigating and prosecuting plaintiffs without probable cause. Accepting these allegations as true, as it was obliged to do on consideration of a motion to dismiss, the district court denied dismissal, holding that defendants' alleged political motivation removed their conduct from the scope of activities shielded by absolute immunity. We reverse with respect to the denial of absolute immunity for advocative functions, reiterating what this court has held in other cases: as long as a prosecutor acts with colorable authority, absolute immunity shields his performance of advocative functions regardless of motivation. We remand the case to the district court so that it can enter an order dismissing plaintiffs' claims of advocative misconduct, specifically their claims for malicious and selective prosecution, as well as for misconduct in the presentation of evidence to grand juries.

Plaintiffs submit that defendants nevertheless are not entitled to dismissal of the entire complaint on remand because it further pleads defendants' misconduct in their performance of investigative functions, for which absolute immunity provides no shield. Defendants do not claim absolute immunity for investigative functions; instead, they submit that plaintiffs' pleadings fail to state a claim for investigative misconduct. This court declines to exercise pendent interlocutory jurisdiction over the issue. Instead, we dismiss this part of the appeal without prejudice to the parties' pursuing the matter further on remand.

I. Background

On August 10, 2001, the date this suit was filed, all of the plaintiffs were registered Democrats who had been appointed to various official positions in the Town of Babylon by the Democratic Town Supervisor Richard H. Schaffer: Michael Bernard was the Town Commissioner of Buildings and Grounds, Ronald Kluesener served as Commissioner of Environmental Control, and Douglas Jacob was Director of Finance and Town Comptroller. In their complaint, plaintiffs allege that defendant Suffolk County, as well as individual defendants, Suffolk County District Attorney James M. Catterson, Jr., Assistant District Attorneys Richard T. Dunne and Christopher A. McPartland, and Suffolk County Police Detective Peter Kelleher, all Republicans, misused their law enforcement authority and the judicial process to pursue a series of politically motivated investigations and indictments without probable cause in a failed effort to discredit Babylon's Democratic leaders. Plaintiffs allege that by naming them in three such indictments, defendants subjected them to malicious and selective prosecution in violation of their constitutional rights. We review the specific misconduct alleged in connection with these three indictments.

A. The March 31, 1997 Indictment

On March 31, 1997, at the request of defendants Dunne and McPartland, a Suffolk County grand jury returned an indictment against plaintiffs Bernard and Kluesener, charging them with three counts of offering a false instrument for filing and three counts of falsifying business records. Kluesener stood trial and, on January 9, 1999, a petit jury acquitted him on all charges. On August 31, 2001, the court dismissed all charges against Bernard.

Plaintiffs allege that defendants pursued the indictment for political purposes, that they never possessed probable cause to support the counts charged, and that, throughout the investigation of the case, they "were aware that inculpatory evidence was manufactured and/or contrived" at the same time that they "disregarded exculpatory evidence." Complaint at ¶¶ 36-37. In support of these allegations, plaintiffs assert that certain defendants — not identified by name — endeavored to conceal their political animosity toward plaintiffs and the Schaffer Administration by misrepresenting to the public, the press, and the court that the prosecution had its origins in a referral to the District Attorney's Office from the New York State Comptroller.

They further allege that on March 30, 1997, the day before the indictment was filed, when Kluesener was interviewed at his home by defendant Kelleher and other investigators of the District Attorney's Office and proffered documentary evidence demonstrating his innocence, Kelleher summarily dismissed the proffer stating that District Attorney Catterson was determined "to get" Town Supervisor Schaffer through Kluesener. Id. at ¶ 31. Similarly, in a November 1997 conversation, Suffolk County Republican leader John Powell allegedly told plaintiff Bernard that his indictment was politically motivated and that the District Attorney's Office was pursuing a "witch hunt to get Schaffer." Id. at ¶ 25.

B. The March 31, 1998 Indictment

On March 31, 1998, defendants Dunne and McPartland procured a second indictment from the grand jury charging defendants Kluesener and Jacob with grand larceny, falsifying business records, conspiracy, and several counts of official misconduct. Following a jury trial, both defendants were acquitted of all charges.

Once again, plaintiffs assert that defendants' sole motive in pursuing these charges was to damage the Babylon Democratic leadership. Toward that end, a "member of the District Attorney's Office" — apparently not any of the named defendants — met with Republican leader Powell and solicited his assistance in securing a witness who could testify against Kluesener and Jacob. Powell and the unidentified member of the District Attorney's Office thereafter met secretly with Dominick Testa, who did, in fact, testify against plaintiffs, and who subsequently "admitted that he embellished his testimony because it was what Powell and a member of the District Attorney's Office wanted, because they were on a witch hunt for Schaffer." Id. at ¶ 55. Indeed, plaintiffs allege that "Testa stated that he perjured himself because Powell and defendants wanted to `hammer Schaffer.'" Id.

Plaintiffs do not identify the "defendants" referenced by Testa. The only allegations naming a specific defendant concern Dunne. The complaint alleges that "on numerous occasions during the investigation of the case and prior to criminal charges," defendant Dunne met with Testa at sites outside the District Attorney's office, including a landfill, a donut shop, and a shopping mall. Plaintiffs do not suggest that Dunne himself induced or even encouraged Testa to commit perjury at any of these meetings. Rather, the complaint alleges that "Dunne was aware that Testa had met with Powell and with a member of the District Attorney's Office to create testimony," that he nevertheless subpoenaed Testa to testify before the grand jury, that he concealed from the grand jury the fact of the witness's meetings with Powell, and that "on information and belief [Dunne] suborned [Testa's] perjury before the Grand Jury." Id. at ¶ 52.

C. The July 2, 1998 Indictment

On July 2, 1998, "defendants" — again not identified by name — procured a third indictment, this time charging plaintiff Jacob with receiving a bribe, receiving a reward for official misconduct, conspiracy, and two counts of official misconduct. Plaintiffs assert that throughout the investigation and prosecution of this case, defendants never had any evidence to support a bribery charge; their sole purpose was to secure a politically embarrassing indictment. "Upon information and belief," plaintiffs charge that unidentified defendants "coerced and threatened" witness James Rogers to testify against Jacob. Id. at ¶ 69. When Rogers refused to testify at trial, defendants were obliged to dismiss the indictment.

Further, as evidence of selective prosecution, plaintiffs allege, "upon information and belief," that defendants decided not to prosecute another person implicated in a bribery scheme because his political ties were Republican rather than Democratic. Id. at ¶ 66.

D. The Charged Causes of Action

Plaintiffs' complaint pleads seven causes of action, the first three pursuant to 42 U.S.C. § 1983, the last four under state law.

The first federal claim sweeps broadly, charging defendants with violating plaintiffs' "rights under the Fourteenth Amendment to be secure in their persons, to be free from punishment without due process and equal...