Lerwill v. Joslin, 81-1708

• Decision Date: 11 July 1983
• Docket Number: No. 81-1708,81-1708
• Citation: 712 F.2d 435
• Parties: Lynn LERWILL and Penny Lerwill, Plaintiffs-Appellees, v. Gary James JOSLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 435

712 F.2d 435

Lynn LERWILL and Penny Lerwill, Plaintiffs-Appellees, v. Gary James JOSLIN, Defendant-Appellant.

No. 81-1708.

United States Court of Appeals Tenth Circuit.

July 11, 1983.

Gary James Joslin, pro se.

Craig N. Snyder of Howard, Lewis & Petersen, Provo, Utah, for plaintiffs-appellees.

Before BARRETT, McKAY and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

The issue in this case is whether a city attorney, authorized under local law to file only criminal charges based on violations of city ordinances, is absolutely immune from a section 1983 suit for damages arising out of his (a) initiation of a prosecution for violations of state laws he was not authorized to invoke, (b) procurement of an arrest warrant from a Justice of the Peace who did not follow required State procedure in issuing the warrant, and (c) advocacy of excessive bail before a magistrate.

I

Lynn and Penny Lerwill allegedly assaulted an animal control officer of Santaquin, Utah. Gary Joslin, a part-time city attorney for Santaquin, attempted to prosecute the assault. Mr. Joslin was authorized to file only criminal charges based on city misdemeanor ordinances. Nevertheless, he presented a criminal complaint to a Justice of the Peace ("Justice") charging the Lerwills with violations of state felony statutes. The Justice signed the complaint and, at Mr. Joslin's request, issued a warrant for the Lerwills' arrest. After the Lerwills were arrested, Mr. Joslin requested that bail be set at $1,000 for Mr. Lerwill and $500 for Mrs. Lerwill, and that they not be permitted to pay by personal check. After approximately nineteen hours in jail, the Lerwills bailed themselves out. They then brought this suit against Mr. Joslin under 42 U.S.C. § 1983 (Supp. V 1981). They claimed that he had deprived them of liberty without due process by causing them to be jailed since he was not authorized to file the criminal charges based on state law, and because the Justice failed to obtain a county attorney's permission, as required by state law, before issuing the arrest warrant. ¹ They also alleged that Mr. Joslin had violated their eighth amendment right to be free from excessive bail by his request that their bail be set as high as it was.

The trial court rejected Mr. Joslin's claim that as a public prosecutor he was absolutely immune from the Lerwills' suit. The court held that he had lost his immunity by acting beyond the scope of his authority. A jury found Mr. Joslin liable, and the trial court entered judgment against him for $14,485.10.

II

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held that a prosecutor is absolutely immune from a section 1983 suit for damages based on his "initiating a prosecution and ... presenting the State's case." ² Id. at 431, 96 S.Ct. at 995. The Court did not decide whether prosecutors are immune from such suits based on their nonprosecutorial investigative or administrative acts, and many courts since Imbler have held that there are limits to prosecutorial immunity for these activities. See, e.g., Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982). Mr. Joslin argues that he is absolutely immune from the Lerwills' suit under Imbler. The Lerwills argue that Imbler does not confer immunity on Mr. Joslin since he was not authorized to charge them with state law violations and since the Justice was not authorized to issue an arrest warrant without first consulting a county attorney.

A

We begin our analysis by noting that Mr. Joslin's acts against the Lerwills were part of his "initiation and presentation" of a prosecution rather than nonprosecutorial acts for which prosecutors generally are not absolutely immune from section 1983 suits for damages. His filing a criminal complaint against the Lerwills was clearly an initiation of a prosecution. As for the arrest, both before and after Imbler, a prosecutor's absolute immunity has extended to his procurement of an arrest warrant. See, e.g., Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978); Smart v. Jones, 530 F.2d 64 (5th Cir.), cert. denied, 429 U.S. 887, 97 S.Ct. 240, 50 L.Ed.2d 168 (1976); Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); Yaselli v. Goff, 12 F.2d 396 (2d Cir.1926), aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). These cases are consistent with Imbler. In seeking a warrant for the Lerwills' arrest, Mr. Joslin was acting as an advocate for the State before a neutral magistrate. His presentation of his arguments to a Justice of the Peace thus differs fundamentally from a prosecutor's participating in an illegal search, see Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied sub nom. Rashkind v. Marrero, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), issuing a libelous press release, id., participating in the illegal sale of seized property, see Coleman, 697 F.2d at 1341, or ordering a warrantless arrest. None of these examples involves a prosecutor's acts as an advocate before a neutral magistrate. To be sure, a prosecutor typically seeks an arrest warrant in an ex parte proceeding, in which there is no counterargument by opposing counsel to lessen the danger of prosecutorial misconduct. Nevertheless, we think that a prosecutor's seeking an arrest warrant is too integral a part of his decision to file charges to fall outside the scope of Imbler. The purpose of obtaining an arrest warrant is to ensure that the defendant is available for trial and, if found guilty, for punishment. Without the presence of the accused, the initiation of a prosecution would be futile. Thus, a prosecutor's seeking a warrant for the arrest of a defendant against whom he has filed charges is part of his "initiation of a prosecution" under Imbler. In addition, for purposes of immunity analysis, a prosecutor's advocacy of a given amount of bail is indistinguishable from his requesting an arrest warrant except that a bail proceeding is not generally ex parte, and is therefore less subject to abuse. We conclude that Mr. Joslin's filing charges, procuring an arrest warrant, and seeking a particular bail amount were part of his "initiation and presentation" of a prosecution within the meaning of Imbler.

B

Imbler thus appears to render Mr. Joslin absolutely immune from the Lerwills' suit. However, the Lerwills argue, we should not take Imbler at its face value. Instead, they claim, a prosecutor initiating a prosecution and presenting the State's case is absolutely immune under Imbler only if state law authorizes him to prosecute violations of the particular statutes he invokes. Since Mr. Joslin, a city attorney, was not authorized to prosecute violations of state felony laws, they conclude that he was acting outside of his authority and therefore is not immune from liability for the constitutional rights he violated by doing so. ³ Of course, Imbler immunizes a prosecutor for filing charges that are beyond his authority in that they are unconstitutional. Moreover, since a prosecutor's immunity is absolute, it applies no matter how obvious it is to the prosecutor that he is acting unconstitutionally and thus beyond his authority. It is not immediately apparent why he should lose that immunity simply because the boundaries he transgressed were prescribed by local law rather than the federal Constitution. In its best light, however, the Lerwills' argument suggests that constitutional issues are often murkier than issues involving a prosecutor's authority under local law. Thus, it is necessary to immunize prosecutors for obvious constitutional violations to avoid the disruption to state criminal law enforcement that would result from having to separate the obvious ones from the murky ones in federal court, as would be the case if prosecutors had only qualified immunity. But they argue that it does not follow that it is necessary to immunize prosecutors for acts that are obviously beyond the bounds of the authority vested in them by local law.

The Lerwills' argument analogizes prosecutorial immunity to judicial immunity. A judge is absolutely immune from a section 1983 suit for damages only for (a) judicial acts (b) for which the judge has at least a semblance of subject matter jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Imbler appears to grant prosecutors absolute immunity for prosecutorial functions without imposing a requirement analogous to the requirement for judicial immunity that the judge have had subject matter jurisdiction to make the decision on which the suit against him is based. The Lerwills suggest that this is incongruous since prosecutorial immunity should be at most no broader than the judicial immunity from which it is derived. Since this issue was not before the Court in Imbler, we think it would be incorrect to construe Imbler as foreclosing it. Accordingly, we assume arguendo that a prosecutor can lose his absolute immunity for prosecutorial acts for which he has no colorable claim of authority under local law. Since we find Mr. Joslin immune in either case, we need not decide whether there is in fact such a limit to the Imbler holding.

Even if a prosecutor may lose his absolute immunity for prosecutorial acts for which he has no colorable claim of authority, it does not follow that he does so immediately upon crossing the technical bounds of the power conferred on him by local law. Indeed, it has long been a fundamental tenet of immunity doctrine that when a judicial officer has absolute immunity from liability, his immunity does not become qualified simply because he acted in excess of his authority. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646, the Supreme Court held that while a judge is not absolutely immune for judicial acts taken in "the clear absence of all jurisdiction over the subject matter," he remains immune for such acts that were merely...