Caseflicks

Supreme Court of the United States • 1991

Burns v. Reed

500 U.S. 478 | 111 S. Ct. 1934 | 114 L. Ed. 2d 547 | 1991 U.S. LEXIS 3018

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Takeaway

In short, Burns draws the functional line: prosecutors are absolutely immune for courtroom advocacy in a warrant hearing, but only qualifiedly immune for legal advice given to police during an investigation.

Background

After Cathy Burns reported that an intruder had knocked her unconscious and shot her two sons, Muncie, Indiana police came to suspect Burns herself. Although she passed a polygraph and voice-stress test, supplied exculpatory handwriting samples, and consistently denied the shooting, officers theorized that she had multiple personalities. Before questioning her under hypnosis, they asked Chief Deputy Prosecutor Richard Reed whether hypnosis was legally permissible. Reed advised that they could proceed.

During hypnosis, Burns referred to the assailant as “Katie,” a name she also used for herself. Officers treated that as support for their theory, detained her, and asked Reed whether probable cause existed for an arrest. Reed responded that they “probably had probable cause,” and the officers arrested Burns.

The following day, Reed and an officer appeared before a judge to obtain a warrant to search Burns’ home and car. In response to Reed’s questioning, the officer testified that Burns had confessed to shooting her children, without disclosing that the purported confession arose under hypnosis or that Burns had repeatedly denied guilt. The judge issued the warrant. Charges against Burns were later dropped after a state trial judge suppressed her hypnotically induced statements.

Burns brought a damages action under 42 U.S.C. § 1983 against Reed, the officers, and others. After settlements with some defendants, the District Court directed a verdict for Reed on the ground of absolute prosecutorial immunity. The Seventh Circuit affirmed, holding that Reed had absolute immunity both for advising police and for his role in the probable-cause hearing. The Supreme Court affirmed as to Reed’s courtroom conduct but reversed as to his legal advice to police.

Issues

Issue #1

Whether a prosecutor is absolutely immune from § 1983 damages liability for appearing at a probable-cause hearing, examining a witness, and presenting evidence to obtain a search warrant.

Holding

Yes. Reed was absolutely immune for his conduct as the State’s advocate during the probable-cause hearing.

Reasoning

Section 1983 is broadly written, but it incorporates certain common-law immunities. Under Imbler v. Pachtman, a prosecutor receives absolute immunity for conduct intimately associated with the judicial phase of the criminal process, including initiating a prosecution and presenting the State’s case. Absolute immunity is assessed functionally: the question is what the official was doing, not merely the official’s title.

Burns’ claim, as framed in her complaint and litigated below, challenged Reed’s participation in the hearing itself—his examination of the officer and presentation of misleading evidence—not a separate out-of-court decision to seek the warrant. The Court therefore confined its holding to Reed’s in-court advocacy.

At common law, lawyers and witnesses were absolutely protected from damages suits based on statements made in judicial proceedings, including the elicitation of false or defamatory testimony. That historical tradition supported immunity for Reed’s conduct in court, even assuming he knowingly elicited misleading testimony.

Policy considerations pointed the same way. Reed appeared before a judge and presented evidence in support of a warrant, a judicial proceeding closely connected to criminal enforcement. Allowing damages suits over this advocacy would invite retaliatory litigation that could impair prosecutorial independence, while the judge and ordinary judicial procedures provide safeguards against misconduct in the hearing.

Issue #2

Whether a prosecutor is absolutely immune from § 1983 damages liability for giving police legal advice during an investigation, including advice about hypnosis and probable cause to arrest.

Holding

No. A prosecutor who gives police legal advice during an investigation has, at most, qualified immunity rather than absolute immunity.

Reasoning

Reed identified no common-law tradition granting prosecutors absolute immunity for advising police during an investigation. The Court emphasized that absolute immunity is exceptional, that the official seeking it bears the burden of justifying it, and that qualified immunity is the presumptive protection for government officials.

Giving legal advice to police before a prosecution begins is not sufficiently connected to the prosecutor’s role as an advocate in a judicial proceeding. Although such advice may bear on a future charging decision, nearly every investigative act could be characterized as related to a possible prosecution. Imbler does not extend absolute immunity that far.

The risk of litigation did not justify expanding absolute immunity. A suspect is less likely to know about a prosecutor’s behind-the-scenes legal advice than about the prosecutor’s decision to charge or conduct a case in court, and the concern supporting absolute immunity is specifically interference with the judicial process rather than a general desire to protect officials from suit.

Qualified immunity adequately protects prosecutors who reasonably perform this advisory role. It shields all but the plainly incompetent or those who knowingly violate the law. It would also be anomalous to give prosecutors absolute immunity for legal advice while police officers who rely on that advice receive only qualified immunity, even though prosecutors are the officials expected to understand the law.

Other checks on misconduct, especially judicial review, may not effectively constrain a prosecutor’s out-of-court investigative advice—particularly when the suspect is never prosecuted. Because such advice is not tested in the judicial process, the Court found no basis to deny a damages remedy through absolute immunity. The Court did not decide whether Reed was ultimately liable or whether qualified immunity protected him on the merits.

Dissents

Justice Scalia

Reasoning

Justice Scalia agreed that Reed had absolute immunity for eliciting misleading testimony in the judicial hearing and only qualified immunity for giving legal advice to police. Justice Blackmun joined his opinion, and Justice Marshall joined the portion addressing the search-warrant claim.

He disagreed with the majority’s conclusion that Burns had raised only a claim based on Reed’s in-court conduct. Because the case followed a directed verdict, Scalia would consider the trial evidence as well as the complaint. That evidence, in his view, permitted a jury to find that Reed improperly approved or initiated the effort to obtain the search warrant, an issue tried by implied consent under Federal Rule of Civil Procedure 15(b).

Scalia grounded immunity analysis principally in the common law as it existed when Congress enacted § 1983. In his view, absolute immunity requires a historical common-law counterpart; policy alone cannot create a new categorical immunity. Prosecutorial functions could be considered quasi-judicial, but that designation historically provided only qualified immunity, not absolute immunity.

A prosecutor’s malicious procurement of a search warrant was analogous to malicious prosecution, not to protected courtroom defamation. The prosecutor was not adjudicating rights, so judicial immunity did not apply either. In Scalia’s view, neither the common law nor Imbler justified absolute immunity for deciding to procure a search warrant, an act more remote from the judicial phase than seeking an indictment. He would therefore reverse the directed verdict on that additional claim.