White v. Frank

• Citation: 855 F.2d 956
• Decision Date: 24 August 1988
• Docket Number: Nos. 1300,1301,D,s. 1300
• Parties: Willie D. WHITE, Plaintiff-Appellee, v. Richard FRANK, Freeman Marshall, Defendants-Appellants, City of Poughkeepsie, Defendant. ockets 88-7271, 88-7273.
• Court: U.S. Court of Appeals — Second Circuit

Page 956

855 F.2d 956

57 USLW 2178

Willie D. WHITE, Plaintiff-Appellee, v. Richard FRANK, Freeman Marshall, Defendants-Appellants City of Poughkeepsie, Defendant.

Nos. 1300, 1301, Dockets 88-7271, 88-7273.

United States Court of Appeals Second Circuit.

Argued June 22, 1988.

Decided Aug. 24, 1988.

Edward L. Owen, III, New York City (Milton Thurm, Thurm & Heller, Peter I. Sheft, Robert P. Siegel, Sheft, Wright & Sweeney, New York City, on the brief), for defendants-appellants.

Gerald D. Reilly, White Plains, N.Y. (Reilly & Lewis, White Plains, N.Y., on the brief), for plaintiff-appellee.

Before NEWMAN, KEARSE and CARDAMONE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This case requires consideration of the circumstances under which a police officer who intentionally gives false testimony before a grand jury is entitled to absolute immunity from civil liability under 42 U.S.C. Sec. 1983 (1982). The issue is raised on an interlocutory appeal by defendants-appellants Richard Frank and Freeman Marshall from an order of the District Court for the Southern District of New York (David N. Edelstein, Judge) denying their motion to dismiss a civil rights suit brought by plaintiff-appellee Willie D. White. 680 F.Supp. 629. The suit seeks damages for false arrest, false imprisonment, and malicious prosecution. White's claims stem from his arrest and conviction on narcotics charges resting in substantial part on the false testimony of at least one of the appellants, who were then police officers in Poughkeepsie, New York. The conviction was vacated when the perjury was discovered. Appellants contend that dismissal of the section 1983 claim is required because they are absolutely immune from any civil liability based on their grand jury testimony. We conclude that the officers are not immune from liability if they can be considered to be complaining witnesses. Because this status determination raises a disputed factual issue, the immunity defense cannot be determined on an interlocutory appeal, and we therefore must dismiss the appeal.

Background

The complaint contains the following allegations. Until sometime in mid-1985, the appellants Frank and Marshall were police officers in the Crime Prevention Unit of the Poughkeepsie Police Department. Both officers appeared before the Dutchess County grand jury in the summer of 1983 and testified that they had observed White sell small quantities of cocaine to a confidential informant, Frank testifying to a sale on June 8, 1983, and Marshall testifying to a sale on June 15, 1983.

The record at this stage does not reveal whether additional evidence, testimonial or otherwise, was presented to the grand jury concerning the alleged crimes. Nor are we informed of any additional facts detailing the nature and extent of appellants' roles in the initial stages of the prosecution.

The grand jury returned a four-count indictment charging White with the sale and possession of a controlled substance on both occasions in June. An arrest warrant was issued upon the indictment, and White was arrested by unidentified Poughkeepsie police officers. Unable to make bail, White remained in jail pending trial. After a pretrial suppression hearing, at which Frank and Marshall again testified against White, the case proceeded to trial.

At trial, Frank and Marshall once again appeared as witnesses and repeated their testimony concerning the two alleged narcotics transactions. White was convicted on the counts relating to the alleged June 8 episode, concerning which Frank had testified. The jury could not, however, reach a verdict on the counts relating to the June 15 episode, which had been the subject of Marshall's testimony, and these counts were dismissed. White was sentenced to a prison term of seven and one-half to fifteen years.

During the latter part of 1984 and early 1985, the Dutchess County District Attorney's office investigated allegations of official misconduct in the Poughkeepsie Police Department's Crime Prevention Unit. The probe apparently uncovered widespread corruption implicating to some extent both Frank and Marshall. Frank was charged with grand larceny in the third degree, criminal possession of stolen property in the second degree, and tampering with physical evidence, all arising out of his activities as a police officer. He later pled guilty to tampering with physical evidence. Criminal charges were also brought against Marshall as a result of the investigation, and he subsequently pled guilty to the crime of official misconduct.

In early 1985 Frank confessed to the Dutchess County District Attorney's office that his testimony in the proceedings against White had been perjured. As a consequence, White's conviction was vacated pursuant to Article 440 of the New York Criminal Procedure Law, and he was released from custody after serving almost two years in prison.

White then brought suit under section 1983, claiming that his rights protected by the Fourth, Sixth, and Fourteenth Amendments had been violated as a result of the false arrest, false imprisonment, and malicious prosecution allegedly instigated and orchestrated by Frank and Marshall. ¹ The defendants moved to dismiss the complaint on the ground that they are absolutely immune from civil liability for damages based on their testimony before the grand jury, at the pretrial suppression hearing, and at trial. They relied then, as they do now, primarily on Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), which held that police officers are immune from section 1983 liability based on their testimony as witnesses at trial. Judge Edelstein agreed that Briscoe required dismissal of the claims arising from defendants' testimony at the suppression hearing and at trial. However, the District Judge ruled that the defendants were not immune from liability for damages based on their testimony before the grand jury.

Discussion

Although the denial of a motion to dismiss is ordinarily not an appealable "final decision" within the meaning of 28 U.S.C. Sec. 1291 (1982), the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), has been construed to permit interlocutory appeals from denials of substantial claims of immunity. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity defense); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (absolute immunity defense); Musso v. Hourigan, 836 F.2d 736 (2d Cir.1988) (qualified immunity defense); Minotti v. Lensink, 798 F.2d 607 (2d Cir.1986) (Eleventh Amendment immunity defense), cert. denied, --- U.S. ----, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987); San Filippo v. U.S. Trust Co., 737 F.2d 246 (2d Cir.1984) (absolute immunity defense). However, interlocutory appeal is not available where the immunity issue turns on disputed questions of fact. See Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Group Health Inc. v. Blue Cross Association, 793 F.2d 491, 497 (2d Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 758 (1987); Evans v. Dillahunty, 711 F.2d 828, 830 (8th Cir.1983). Thus our jurisdiction over this appeal depends on whether the appellants' immunity defense can be decided as a matter of law. That issue, in turn, requires consideration of the nature of immunities concerning testimony in criminal prosecutions.

Section 1983 "on its face admits of no immunities," Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976), but the Supreme Court has "concluded that immunities 'well grounded in history and reason' ha[ve] not been abrogated 'by covert inclusion in the general language' of Sec. 1983." Id. at 418, 96 S.Ct. at 989 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951)). The Court has developed a two-step approach for determining whether an immunity defense is available in a section 1983 suit. The critical initial question is "whether an official claiming immunity under Sec. 1983 can point to a common law counterpart to the privilege he asserts." Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986). Second, if the official "was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether Sec. 1983's history or purposes nonetheless counsel against recognizing the same immunity in Sec. 1983 actions." Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 2824, 81 L.Ed.2d 758 (1984). See, e.g., Briscoe v. LaHue, supra, 460 U.S. at 336-46, 103 S.Ct. at 1116-21. For reasons that will become clear, only the first of these two steps requires consideration on the pending appeal.

The common law made a subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution--complaining witnesses--did not enjoy immunity. The distinction reflected the difference between the two causes of action by which those falsely accused sought to hold witnesses liable. In an action for defamation, the perjurious witness was sought to be held liable only for the defamatory effect of his testimony, and in such an action he enjoyed absolute immunity upon a threshold showing that the allegedly defamatory statements were relevant to the judicial proceeding. See Briscoe v. LaHue, supra, 460 U.S. at 330-32 & n. 11, 103 S.Ct. at 1112-13 & n. 11. This immunity applied to grand jury as well as trial testimony. See Schultz v. Strauss, 127 Wis. 325, 329, 106 N.W. 1066 (1906); Kidder v. Parkhurst, 3 Allen 393, 396 (Mass.1862); Sands v. Robison, 12 Smedes & M. 704, 20 Miss. 704 (1849); King v. Skinner, 1 Lofft 55, 56, 98 Eng.Rep. 529, 530 (K.B.1772); Veeder, Absolute Immunity in Defamation: Judicial...