Kincaid v. Eberle, 80-1003

• Decision Date: 08 August 1983
• Docket Number: No. 80-1003,80-1003
• Citation: 712 F.2d 1023
• Parties: Darrell D. KINCAID, Plaintiff-Appellant, v. Daniel EBERLE, individually and in his capacity as an agent or employee of the Lafayette, Indiana Police Department, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1023

712 F.2d 1023

Darrell D. KINCAID, Plaintiff-Appellant, v. Daniel EBERLE, individually and in his capacity as an agent or employee of the Lafayette, Indiana Police Department, Defendant-Appellee.

No. 80-1003.

United States Court of Appeals, Seventh Circuit.

Submitted June 28, 1983.

Decided Aug. 8, 1983.

Darrell D. Kincaid, Michigan City, Ind., for plaintiff-appellant.

Robert L. Bauman, Heide, Gambs & Mucker, Jay T. Seeger, Lafayette, Ind., for defendant-appellee.

Before BAUER, CUDAHY and POSNER, Circuit Judges.

PER CURIAM.

This appeal presents a question of first impression but little difficulty: whether a witness before a grand jury has, as the district court held, absolute immunity from a suit under 42 U.S.C. § 1983 for giving false testimony to the damage of the plaintiff. Briscoe v. LaHue, --- U.S. ----, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), holds that a witness at trial has such immunity, and although the Court reserved the question whether its holding applied to pretrial proceedings, id. at 1112 n. 5, we cannot see how a different result could be reached. The position at common law, on which the Court laid heavy emphasis, see id. at 1113-15, was the same: the witness before a grand jury had absolute immunity. See Lake v. King, 1 Wms.Saund. 131, 132, 85 Eng.Rep. 137, 139 (K.B.1679); The King v. Skinner, 1 Lofft 55, 56, 98 Eng.Rep. 529, 530 (K.B.1772); Kidder v. Parkhurst, 3 Allen 393, 396 (Mass.1862); Schultz v. Strauss, 127 Wis 325, 328, 106 N.W. 1066, 1067 (1906). Turning from history to policy, we think it apparent that the concern that the Supreme Court expressed with regard to the impact of liability on witnesses at trial, see 103 S.Ct. at 1115, 1119-20, is every bit as forcefully presented by the prospect of imposing liability on witnesses before the grand jury. A police officer (the defendant here, as in Briscoe ) who faces the prospect of a section 1983 suit every time he testifies in a grand jury proceeding will be distracted from and impeded in the performance of his official duties. If anything, the argument for absolute immunity is stronger in the grand jury setting than in the trial setting, because false testimony before the grand jury is less harmful than false testimony at trial; the grand jury can indict, but cannot convict.

AFFIRMED.

CUDAHY, Circuit Judge, concurring:

I reluctantly concur because I believe the majority does correctly invoke the principles underlying Briscoe v. LaHue, --- U.S. ----, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). I do, however, seriously question the wisdom of deciding important matters of first impression (in this and the other federal circuits) in a published opinion, on the basis of a 9-page pro se brief of a prisoner-petitioner (written long before the decision in Briscoe ), and without the benefit of oral argument. As the majority notes, in Briscoe v. LaHue, the Supreme Court took...