# Burns v. Reed

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## Concurring Opinion

    Scalia
United States Supreme Court
500 U.S. 478
Burns v. Reed
No. 89-1715 Argued: Nov. 28, 1990. --- Decided: May 30, 1991
Syllabus
Suspecting that petitioner Burns had multiple personalities, one of which shot her sons while they slept, Indiana police sought the advice of respondent Reed, a state prosecutor, who told them they could question Burns under hypnosis. While hypnotized, Burns referred to both herself and the assailant as "Katie." Interpreting this as support for their multiple-personality theory, the officers detained Burns and again sought the advice of Reed, who told them that they "probably had probable cause" to arrest her. During a subsequent county court probable cause hearing on a search warrant, one of the officers testified, in response to Reed's questioning, that Burns had confessed to the shootings, but neither the officer nor Reed informed the judge that the "confession" was obtained under hypnosis or that Burns had otherwise consistently denied guilt. The warrant was issued on the basis of this misleading presentation, and Burns was charged with attempted murder, but her motion to suppress the statements given under hypnosis was granted before trial, and the charges were dropped. She then filed suit under 42 U.S.C. § 1983 against Reed, inter alios, alleging violations of various rights under the Federal Constitution and seeking compensatory and punitive damages. The District Court granted Reed a directed verdict, and the Court of Appeals affirmed, holding that he was absolutely immune from liability for giving legal advice to the officers and for his conduct at the probable cause hearing.
Held: A state prosecuting attorney is absolutely immune from liability for damages under § 1983 for participating in a probable cause hearing, but not for giving legal advice to the police. Pp. 484-496.
(a) Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, held that, in light of the immunity historically accorded prosecutors at common law and the interests supporting that immunity, state prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and in presenting the State's case," id., at 431, 96 S.Ct., at 995, insofar as that conduct is "intimately associated with the judicial phase of the criminal process," id., at 430, 96 S.Ct., at 995. Subsequent decisions are consistent with this functional approach and have emphasized that the official seeking absolute immunity bears the burden of showing that it is justified by the function in question. See, e.g., Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555. Pp. 484-487.
(b) The absolute immunity recognized in Imbler is applicable to Reed's appearance in court to support the search warrant application and his presentation of evidence at that hearing. Burns claims only that Reed presented false evidence to the county court and thereby facilitated the issuance of the warrant. Such conduct was clearly addressed by the common law, which immunized a prosecutor, like other lawyers, from civil liability for making, or for eliciting from witnesses, false or defamatory statements in judicial proceedings, at least so long as the statements were related to the proceedings. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-402, summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395. Moreover, this immunity extended to any hearing before a tribunal which performed a judicial function. See, e.g., ibid. In addition to such common-law support, absolute immunity in these circumstances is justified by the policy concerns articulated in Imbler. Reed's actions clearly involve his "role as advocate for the State," see 424 U.S., at 431, n. 33, 96 S.Ct., at 995, n. 33, rather than his role as "administrator or investigative officer," the protection for which the Court reserved judgment in Imbler, see id., at 430-431, and n. 33, 96 S.Ct., at 994-995, and n. 33. Moreover, since the issuance of a warrant is unquestionably a judicial act, appearing at a probable cause hearing is "intimately associated with the judicial phase of the criminal process." It is also connected with the initiation and conduct of a prosecution, particularly where, as here, the hearing occurs after the arrest. Furthermore, since pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the prosecutor's independence, absolute immunity serves the policy of protecting the judicial process, see id., at 422-423, 96 S.Ct., at 991, which, in any event, serves as a check on prosecutorial actions, see id., at 429, 96 S.Ct., at 994. Pp. 487-492.
(c) However, Reed has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police. Neither he nor the court below has identified any historical or common-law support for such an extension. American common law was aware of the office of public prosecutor and must guide this Court, which does not have a license to establish immunities from § 1983 actions in the interests of what it judges to be sound public policy. Nor do other factors authorize absolute immunity in these circumstances. The risk of vexatious litigation is unavailing, since a suspect or defendant is not likely to be as aware of a prosecutor's role in giving advice as his role in initiating and conducting a prosecution, and since absolute immunity is designed to free the judicial process, rather than every litigation-inducing conduct, from harassment and intimidation. The qualified immunity standard, which is today more protective of officials than it was at the time Imbler was decided, provides ample support to all but the plainly incompetent or those who knowingly violate the law. The argument that giving legal advice is related to a prosecutor's role in screening cases for prosecution and in safe-guarding the fairness of the criminal judicial process proves too much, since almost any action by a prosecutor could be said to be in some way related to the ultimate decision whether to prosecute. Moreover, that argument was implicitly rejected in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411. Furthermore, although there are several checks other than civil litigation to prevent abuses of authority by prosecutors, one of the most important of those checks, the judicial process, will not necessarily restrain a prosecutor's out-of-court activities that occur prior to the initiation of a prosecution, particularly if the suspect is not eventually prosecuted. Advising the police in the investigative phase of a criminal case is not so "intimately associated with the judicial phase of the criminal process" that it qualifies for absolute prosecutorial immunity. Pp. 492-496.
894 F.2d 949, affirmed in part and reversed in part.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BLACKMUN, J., joined, and in Part III of which MARSHALL, J., joined.
Michael K. Sutherlin, Indianapolis, Ind., for petitioner Cathy Burns.
Robert S. Spear, Asst. Atty. Gen., Indianapolis, Ind., for respondent Rick Reed.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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