Fields v. Wharrie

• Decision Date: 14 March 2014
• Docket Number: No. 13–1195.,13–1195.
• Citation: 740 F.3d 1107
• Parties: Nathson FIELDS, Plaintiff–Appellee, v. Lawrence WHARRIE and David Kelley, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

740 F.3d 1107

Nathson FIELDS, Plaintiff–Appellee,

v.Lawrence WHARRIE and David Kelley, Defendants–Appellants.

No. 13–1195.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 1, 2013.

Decided Jan. 23, 2014.

Rehearing En Banc Denied Mar. 14, 2014.^*

Molly E. Armour, Attorney, Law Office of Molly Armour, Leonard Goodman, Attorney, H. Candace Gorman, Attorney, Chicago, IL, for Plaintiff–Appellee.

Stephen L. Garcia, Attorney, Office of the Cook County State's Attorney, Chicago, IL, for Defendants–Appellants.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

Before us are appeals by two Illinois prosecutors, Wharrie and Kelley, who claim absolute immunity from being sued by Nathson Fields under 42 U.S.C. § 1983. Appeals from denial of immunity, though interlocutory because the case against them remains pending in the district court, are immediately appealable provided that, as in this case, the claim (in this case claims) of immunity depends on an issue of law rather than one of fact. Mitchell v. Forsyth, 472 U.S. 511, 527–30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Fields' suit charges the defendants with depriving him of liberty in violation of the Fourteenth Amendment's due process clause and committing torts of malicious prosecution, intentional infliction of emotional distress, and conspiracy, in violation of Illinois law. Specifically he accuses the defendants of having coerced witnesses to give testimony that the defendants (as well as the witnesses) knew to be false, resulting in Fields' conviction of two murders and his imprisonment for 17 years until he was acquitted in a retrial; he later received a certificate of innocence from the court in which he had been tried. 735 ILCS 5/2–702.

This is the defendants' second round of appeals. Our decision in round one sets forth the factual details relating to Fields' claims, 672 F.3d 505, 508–09 (7th Cir.2012); we needn't repeat them. Fields accuses Wharrie of two separate acts (one in 1985, the other in 1998) of coercing false testimony from witnesses, and Kelley of similar coercion in 1998. We should clarify the terminology used by Fields to describe his claims. He uses “coerced,” “fabricated,” and “false” testimony interchangeably to mean testimony procured by a prosecutor who knows it's false. The use of the three terms to denote the same conduct is confusing. For they mean three different things. Coerced testimony is testimony that a witness is forced by improper means to give; the testimony may be true or false. Fabricated testimony is testimony that is made up; it is invariably false. False testimony is the equivalent; it is testimony known to be untrue by the witness and by whoever cajoled or coerced the witness to give it. Much testimony is inaccurate, but not deliberately so and therefore not false or fabricated as we are using these words.

Originally the district court had dismissed, on the ground of absolute prosecutorial immunity, only the federal claim against Wharrie that was based on his alleged misconduct in 1985. Fields did not appeal, but the prosecutors did, challenging the district court's refusal to dismiss the other claims. Our decision in that first appellate round ordered the dismissal of the remaining federal claims against both defendants on grounds of absolute prosecutorial immunity. 672 F.3d at 519. The state law claims, also a subject of the prosecutors' appeal, remained in the case. But we didn't discuss them, because we expected that with the federal claims dismissed the district judge would relinquish jurisdiction over the state law claims; for they were supplemental claims, which normally are dismissed when the federal claims to which they are supplemental drop out of the case before trial. See 28 U.S.C. § 1367(c)(3); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993); Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254–55 (6th Cir.1996); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995). Indeed we suggested he do that. 672 F.3d at 518–19.

So the case was still alive in the district court, if barely, when unexpectedly the district judge granted the plaintiff's motion to reconsider the dismissal of one of his federal claims—Wharrie's alleged fabrication of testimony by a witness during the investigation in 1985 that led to Fields' indictment and trial—in light of our intervening decision in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir.2012). The judge also decided to retain supplemental jurisdiction of several of Fields' state law claims. By thus partially stripping the defendants of absolute prosecutorial immunity, the judge's rulings precipitated this, the defendants' second appeal.

The claim that the district judge reinstated against Wharrie is the one concerning Wharrie's investigation of Fields in 1985. Prosecutors, like judges, enjoy absolute immunity from federal tort liability, whether common law or constitutional, because of “concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler v. Pachtman, 424 U.S. 409, 423, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); see also Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949) (L.Hand, J.). But the absolute immunity is only for acts they commit within the scope of their employment as prosecutors. Buckley v. Fitzsimmons, 509 U.S. 259, 273–76, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Thomas v. City of Peoria, 580 F.3d 633, 638–39 (7th Cir.2009); Pinaud v. County of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995). Often their employment duties go beyond the strictly prosecutorial to include investigation, and when they do nonprosecutorial work they lose their absolute immunity and have only the immunity, called “qualified,” that other investigators enjoy when engaged in such work. Buckley v. Fitzsimmons, supra, 509 U.S. at 275–76, 113 S.Ct. 2606. Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).” Messerschmidt v. Millender, ––– U.S. ––––, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012).

Fields was not arrested until June 1985. Wharrie's alleged procurement of false statements from a prospective witness in Fields' forthcoming trial had taken place a month earlier. The trial (the first of Fields' two trials) took place a year later. Wharrie was one of the prosecutors at that trial. Though as we said a prosecutor's absolute immunity is limited to the performance of his prosecutorial duties, and not to other duties to which he might be assigned by his superiors or perform on his own initiative, such as investigating a crime before an arrest or indictment, Wharrie argues that he is insulated from liability for his investigative work by our decision in Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir.1994). The plaintiff in that case, which like this one was a malicious prosecution suit against prosecutors, claimed that at the investigative stage of the criminal case against the plaintiff the prosecutors had coerced witnesses to testify against him. We held that he could not base a legal claim on those acts because until the evidence obtained by the improper acts was introduced at his trial he had not been injured and therefore no tort had been committed. “Events not themselves supporting recovery under § 1983 do not become actionable because they lead to injurious acts for which the defendants possess absolute immunity,” id. at 796—namely presenting the coerced evidence at trial. Presenting evidence at trial is a core prosecutorial function, protected by absolute prosecutorial immunity and therefore an insuperable bar to an award of damages in a suit for malicious prosecution against the prosecutor.

The analysis in our Buckley decision thus rests on the principle that there is no tort without an actionable injury caused by the defendant's wrongful act, 20 F.3d at 796. That is indeed the law. See, e.g., Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir.2013). But the act that causes an injury need not be simultaneous with the injury (indeed it will never be exactly simultaneous) for the actor to be liable. Think of products liability. The defect that caused a pipe to burst and flood your home may have been present when the pipe was manufactured years earlier. The manufacturer would be liable despite the lapse of time. The statute of limitations would not have begun to run until the pipe burst and caused damage (though if there were a statute of repose, the deadline created by that statute may have passed). It may seem difficult to understand why a prosecutor who, acting in an investigative role before judicial proceedings against a criminal defendant began, coerced a witness or fabricated testimony, intending that it be used against the defendant and knowing that it would be used against him, should be excused from liability just because the defendant was not harmed until the witness testified and, as a result, the defendant was convicted and sentenced. He who creates the defect is responsible for the injury that the defect foreseeably causes later. Nor is the only harm that resulting from the conviction and the sentence. In the present case, as in our recent decision in Julian v. Hanna, 732 F.3d 842, 847 (7th Cir.2013), the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him.

But consider a case in which a prosecutor, whom we'll call A, acting in a purely investigative role, fabricates...