Dellums v. Powell

• Decision Date: 24 July 1981
• Docket Number: No. 80-1331,80-1331
• Parties: Honorable Ronald V. DELLUMS, et al., v. James M. POWELL, Chief, United States Capitol Police, and John N. Mitchell, Department of Justice, Appellants, Jerry V. Wilson, Chief, Metropolitan Police Department, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 802

660 F.2d 802

212 U.S.App.D.C. 403

Honorable Ronald V. DELLUMS, et al., v. James M. POWELL, Chief, United States Capitol Police, and John N. Mitchell, Department of Justice, Appellants, Jerry V. Wilson, Chief, Metropolitan Police Department, et al.

No. 80-1331.

United States Court of Appeals, District of Columbia Circuit.

Argued June 9, 1981.

Decided July 24, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 2271-71).

David H. White, Atty., Dept. of Justice, of the bar of the Supreme Court of Kentucky, Lexington, Ky., pro hac vice, by special leave of court, with whom Alice Daniel, Asst. Atty. Gen. at the time the brief was filed, Washington, D.C., Charles F. C. Ruff, U. S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants. Robert J. Franzinger, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellants.

Judith A. Sandler, Washington, D.C., with whom Arthur B. Spitzer, Warren K. Kaplan, and Richard J. Kendall, Washington, D. C., were on the brief, for appellees.

Before WRIGHT, TAMM and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Opinion concurring in part and dissenting in part filed by Circuit Judge HARRY T. EDWARDS.

J. SKELLY WRIGHT, Circuit Judge:

This appeal raises narrow issues concerning official immunity against suits alleging constitutional violations. The District Court held that defendants John Mitchell and James Powell were entitled to only qualified immunity against a claim of malicious prosecution with intent to violate the First Amendment. Because the District Court erred in denying absolute immunity to defendant Mitchell for actions taken in a prosecutorial role as Attorney General, we reverse that court's denial of his motion for judgment on the pleadings. However, we affirm the District Court's holding as to defendant Powell, since he should receive only qualified immunity for his actions taken while Chief of the Capitol Police. ¹

I. BACKGROUND

The facts underlying this case have been detailed in prior decisions by this court. Dellums v. Powell, 566 F.2d 167; 566 F.2d 216; 566 F.2d 231 (D.C.Cir.1977). We will not repeat them except where necessary to address the issues that this appeal presents.

This civil action was brought on November 11, 1971 by U.S. Representative Ronald Dellums and nine other persons seeking to represent a class of all persons arrested on the steps of the U.S. Capitol on May 5, 1971 while engaged in a protest against the Vietnam War. Defendants included John N. Mitchell, then Attorney General of the United States, and James M. Powell, then Chief of the Capitol Police. The complaint alleged violations of various constitutional and common law rights. The case against Mr. Mitchell was severed and still awaits trial. The claims against Mr. Powell proceeded to trial before a jury, which held him liable for money damages for false arrest and false imprisonment, for violations of First Amendment rights, and for malicious prosecution.

On appeal, this court (a) affirmed Mr. Powell's liability for false arrest and false imprisonment; (b) affirmed his liability for violation of First Amendment rights, but vacated as excessive and remanded for redetermination the award of damages for the violation; ² and (c) vacated the judgment against defendant Powell for malicious prosecution and remanded for a new trial on this portion of the verdict. ³

On remand, defendant Powell moved for a judgment on the pleadings. ⁴ He was joined in this motion by Mr. Mitchell, who after his earlier severance now appears before this court for the first time in this action. The basis for the motion was an asserted defense of absolute official immunity from civil suit for malicious prosecution.

In dealing with the motion in its Memorandum Order and Opinion, the District Court distinguished three separate bases for the malicious prosecution cause of action. It granted defendants' motion as to a common law claim for malicious prosecution, and it refused to provide plaintiffs a damage remedy for malicious prosecution claims based on the Fifth Amendment. However, the District Court denied defendants' motion as to the plaintiffs' claim of malicious prosecution with intent to violate their First Amendment rights. Dellums v. Powell, 490 F.Supp. 70 (D.D.C.1980). Defendants Mitchell and Powell then brought this appeal challenging the denial.

The District Court's denial of a motion for summary judgment that is based on absolute immunity constitutes a final order appealable under 28 U.S.C. § 1291 (1976). ⁵ Thus, the narrow scope of issues this court must now address involves the claim of official immunity as to the alleged malicious prosecution with intent to violate the First Amendment. ⁶ In dealing with the District Court's denial of the motion, the status of defendant Mitchell should be distinguished from that of defendant Powell.

II. ABSOLUTE IMMUNITY OF DEFENDANT MITCHELL

A. Immunity Principles

In general, executive officials charged with constitutional violations are entitled to only qualified immunity from personal damages liability. Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978). However, the Supreme Court has recognized "exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business." Id. at 507, 98 S.Ct. at 2911. In identifying such situations, the Court has undertaken " 'a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.' " Id. at 508, 98 S.Ct. at 2912 (quoting Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976)).

The immunity of judges for acts within their jurisdiction has long existed at common law. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). The same considerations underlying the common-law immunity of judges provided the basis for a commonlaw immunity of prosecutors. Imbler v. Pachtman, supra, 424 U.S. at 422-423, 96 S.Ct. at 991-92. Thus, prosecutors have been deemed "quasi-judicial" officers ⁷ entitled to the absolute immunity granted judges when their activities are "intimately associated with the judicial phase of the criminal process." Id. at 430, 96 S.Ct. at 994-95.

Ample justification exists for the protection afforded to those making prosecutorial decisions.

The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate.

Id. at 424-425, 96 S.Ct. at 992.

In line with its origins, the scope of prosecutorial immunity is limited to performance of "quasi-judicial" functions. As this court has made clear, absolute immunity does not extend to a prosecutor engaged in essentially investigative or administrative functions. Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff'd by equally divided Court per curiam, --- U.S. ----, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981); Briggs v. Goodwin, 569 F.2d 10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978); Apton v. Wilson, 506 F.2d 83, 93 (D.C.Cir.1974). However, when a prosecutor is engaged "in initiating a prosecution," his absolute immunity from civil suit is firmly established. Imbler v. Pachtman, supra, 424 U.S. at 431, 96 S.Ct. at 995. ⁸

B. Immunity of Defendant Mitchell

Plaintiffs allege that defendant Mitchell is liable for malicious prosecution. In order to prevail on this claim, they must establish that the defendant "instituted" a criminal action against them. ⁹ Yet, instituting a criminal action is precisely the sort of activity that falls within the scope of absolute immunity granted to a prosecuting official such as the Attorney General. ¹⁰ Indeed, in concluding that absolute immunity was the settled rule at common law, the Supreme Court did so in the context of suits for malicious prosecution. Id. at 421-424, 96 S.Ct. at 990-92.

The District Court attempted to distinguish this case from one where absolute immunity is appropriate by arguing that it presents "another twist." Dellums v. Powell, supra, 490 F.Supp. at 74. The plaintiffs do not allege merely a malicious prosecution, but rather a malicious prosecution with intent to violate the First Amendment. "When the state's machinery is misdirected for the express purpose of violating a substantive constitutional right, * * * no society-wide interest in law enforcement can outweigh the imperative of a remedy in the courts." Id.

If accepted, the District Court's reasoning would debilitate the defense of absolute immunity. Any allegation of a constitutional tort of malicious prosecution necessarily asserts a deliberate violation of constitutional liberties. ¹¹ Nonetheless, in delineating the scope of absolute prosecutorial immunity, the Supreme Court has already struck a balance against providing a remedy in such cases.

To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.

Imbler v. Pachtman, supra, 424 U.S. at 427-428, 96 S.Ct. at 993-94.

In their brief, ¹² plaintiffs seek to distinguish Imbler v. Pachtman by noting that it retained the standard of qualified immunity for actions taken in an administrative or investigative capacity. See id....