Rehberg v. Paulk

At issue is §1 of the Civil Rights Act of 1871, codified at42 U.S.C. § 1983. This statute provides a private tort remedy against individuals who deprive others of their civil rights under the guise of law. See42 U.S.C. § 1983. The United States Court of Appeals for the Eleventh Circuit held that Respondent Paulk, an investigator for the district attorney’s office, had absolute immunity against the Section 1983 claim brought by Petitioner Rehberg. SeeRehberg v. Paulk, 611 F.3d 828, 839–40 (11th Cir. 2010). Rehberg’s claim stemmed from allegedly false testimony that Paulk delivered in grand jury proceedings against Rehberg. See id. The Supreme Court must now determine whether to uphold the Eleventh Circuit’s grant of absolute immunity, or whether to adopt Rehberg's proposal that Paulk is a “complaining witness” protected at the lower level of qualified immunity. SeeBrief for Petitioner, Charles A. Rehberg at 10–11. Absolute immunity protects government officials against any civil suit based on their performance of official duties; qualified immunity, on the other hand, protects officials against civil suits only when the officials’ actions were “objectively reasonable.” SeeMalley v. Briggs, 475 U.S. 335, 341 (1986).

Does Malley or Briscoe Control?

Each party contends that a different Supreme Court precedent governs the question of Paulk’s immunity. SeeBrief for Petitioner at 17; Brief for Respondent, James P. Paulk at 18–19. In Briscoe v. LaHue, the Court held that witnesses who testified at trial have absolute immunity against Section 1983 claims. See 460 U.S. 325, 326 (1983). Subsequently, in Malley v. Briggs, the Court carved out an exception for “complaining witnesses,” who do not receive absolute immunity for submitting an affidavit lacking probable cause. See 475 U.S. at 340–41. The Court held in Malley that, because the historical common law existing at the time of Section 1983's enactment did not provide complaining witnesses with absolute immunity, this absolute immunity should not be read into Section 1983. Seeid. Petitioner Rehberg asserts that Malley is the case on point, and that Briscoe is distinguishable because it did not involve complaining witnesses. SeeBrief for Petitioner at 13–14, 16–17. Respondent Paulk, on the other hand, argues that Briscoe controls and that Malley is inapposite, as the latter case concerned early proceedings outside the official judicial process. See Brief for Respondent at 19–20.

Is Paulk Entitled to Absolute Immunity Under the Common Law?

Petitioner Rehberg argues that a judicial officer is not entitled to immunity from a Section 1983 claim, unless the officer can prove that such an immunity is found in the historical common law, i.e. the body of judicial decisions that existed in and around 1871, when the Civil Rights Act was passed. SeeBrief for Petitionerat 12. Rehberg claims that, in the absence of such a common-law privilege, the Court must resort to a grant of qualified immunity, which is the usual standard for public officers in Section 1983 actions. See id. at 10, 12.

Rehberg first argues that, by virtue of being a “complaining witness” - the person who effectively set in motion the official judicial proceedings - Paulk is precluded from enjoying absolute immunity. See Brief for Petitioner at 11–12. According to Rehberg, a review of late nineteenth-century cases indicates that the common law did not grant absolute immunity to complaining witnesses in 1871. See id. at 12, 15–17. Rehberg also cites the more recent case of Malley, which supports the view that complaining witnesses do not have absolute immunity, but are potentially liable in court for initiating malicious complaints that lack probable cause. See id.at 13;Malley, 475 U.S. at 340–41. Despite a factual discrepancy - Malley involved an officer’s written affidavit, while Paulk testified orally before a grand jury - Rehberg argues that Malley is applicable to his case, as the common law did not distinguish between the writings and oral testimony of complaining witnesses. See id.at 14. Finally, Rehberg asserts that Briscoe is irrelevant to the current suit because the Court in that case was narrowly concerned with the immunity standard of trial witnesses, not that of pretrial witnesses such as grand jury witnesses. See id.at 16.

Respondent Paulk, on the other hand, disagrees with Rehberg’s assertion that pretrial grand jury testimony necessarily precludes the possibility of absolute immunity. See Brief for Respondent at 16–17. Rather, Paulk contends that grand jury proceedings are an integral part of judicial proceedings, and are therefore entitled to absolute immunity under the common law of 1871. See id. Paulk claims that Briscoe supports his argument because, although that case only related to trial testimony, the Court there noted that the common law granted absolute immunity to witnesses in judicial proceedings, and a pretrial proceeding in front of a grand jury is a type of judicial proceeding. See id. at 18–19. Paulk asserts that grand jury testimony is similar to trial testimony because the witness must answer questions under oath and is subject to cross-examination. See id. at 21–22. Finally, Paulk claims that his grand jury testimony is part of “judicial proceedings” because it initiates the prosecution’s criminal case. See id. at 21.

Additionally, Paulk asserts that, historically speaking, the term “complaining witnesses” referred to private citizens who brought accusations forming the basis for criminal suits. SeeBrief for Respondent at 24. Therefore, Paulk claims that he was not a “complaining witness” when he testified before the grand jury because he was acting in a public capacity as an investigator, not as a private citizen seeking redress. See id. at 23–24. In support of this view, amicus the United States also notes that the common law in 1871 did not distinguish between “normal” witnesses and complaining witnesses. SeeBrief of Amicus Curiae United States Supporting Vacatur and Remand at 24. With reference to Briscoe, the United States observes that the common law recognized absolute immunity in pretrial proceedings that performed a judicial function, a category into which grand jury testimony may fit. See id. at 14–15. The case of Malley, in the United States’ view, does not apply to Rehberg’s suit because the Court in that case used “complaining witnesses” to mean an individual who instigated the legal action, rather than a testifying witness. See id. at 18.

Is Paulk Entitled to Absolute Immunity Under a Functional Approach?

Both parties acknowledge that courts rely on a functional approach to determine whether judicial officers are entitled to immunity for their actions. SeeBrief for Petitioner at 17–18; Brief for Respondent at 16. The parties disagree, however, as to whether a functional analysis of Paulk’s actions leads to a finding of absolute immunity. SeeBrief for Petitioner at 18–20; Brief for Respondent at 16–17.

Petitioner Rehberg argues that, from a functional perspective, complaining witnesses cannot be compared to prosecutors, a group that normally receives absolute immunity under Section 1983. SeeBrief for Petitioner at 18. According to Rehberg, in the grand jury stage, Paulk was functioning strictly as an investigator and witness (testifying about the alleged results of his investigation), not as a lawyer. See id. at 19–20. Rehberg thus concludes that Paulk cannot enjoy the immunity protections of a prosecutor, who receives absolute immunity only when functioning in his capacity as a professional advocate. See id. Rehberg also points out that, functionally, complaining witnesses differ from trial witnesses in several important respects: most significantly, unlike trial witnesses who offer their testimony to judge and jury and who are subjected to cross-examination, grand jury witnesses provide the testimony that commences the government’s action against the accused, and are subject to neither cross-examination nor refuting evidence. See id.at 20–21. In light of this unique function, Rehberg contends that complaining witnesses must be given mere qualified immunity to protect against abusive and malicious prosecutions. See id. at 21–22.

Respondent Paulk, however, counters that his grand jury testimony was the inevitable first step in the district attorney’s action against Rehberg, and so is entitled to absolute immunity because of its close association with the criminal judicial process. SeeBrief for Respondent at 21. Moreover, Paulk contends that the lack of cross-examination in the grand jury phase does not make a pretrial witness materially different from a trial witness. See id.at 21–22. The witnesses in both types of judicial proceeding, Paulk notes, must take an oath to testify truthfully, and both may be prosecuted for delivering perjured testimony. See id. at 21. Paulk also observes that grand jury witnesses are subject to examination by grand jurors, just as other witnesses are subject to cross-examination at trial. See id. at 22. The function of the grand jury proceeding, The United States supports this argument by highlighting the constitutional significance of the grand jury. SeeBrief of Amicus Curiae United States at 12; U.S. Const. amend. V.