# Burns v. Reed/Concurrence Scalia

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Justice SCALIA, with whom Justice BLACKMUN joins, and with whom Justice MARSHALL joins as to Part III, concurring in the judgment in part and dissenting in part.
I concur in the judgment as to the issues the Court reaches: I agree that a prosecutor has absolute immunity for eliciting false statements in a judicial hearing, and that he has only qualified immunity for giving legal advice to police officers. I write separately because I think petitioner also makes a claim, which we ought to consider, that a constitutional violation occurred in the prosecutor's initiation of the search warrant proceeding. My understanding of the common-law practice, which governs whether absolute immunity exists under § 1983, is that this prosecutorial action would have enjoyed only qualified immunity. As to that portion of the case, a directed verdict on immunity grounds should not have been granted.
* On its face, § 1983 makes liable "every person" who deprives another of civil rights under color of state law. We have held, however, that the section preserves at least some of the immunities traditionally extended to public officers at common law. Thus, in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), we found legislators absolutely immune from § 1983 suits. Observing the existence of a common-law tradition of legislative immunity dating from 1689, id., at 372-376, 71 S.Ct., at 786-788, we refused to "believe that Congress . . . would impinge on a tradition so well grounded in history and reason by overt inclusion" in "the general language of its 1871 statute." Id., at 376, 71 S.Ct., at 788. In Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967), we found that absolute immunity for judges was "equally well established" at common law, so that Congress "would have specifically so provided had it wished to abolish the doctrine" for suits under § 1983. In Briscoe v. LaHue, 460 U.S. 325, 330-334, 103 S.Ct. 1108, 1113-1115, 75 L.Ed.2d 96 (1983), we reached the same conclusion regarding immunity for witnesses at trial.
While we have not thought a common-law tradition (as of 1871) to be a sufficient condition for absolute immunity under § 1983, see Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), we have thought it to be a necessary one:
"Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts. . . . If 'an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.' " Malley v. Briggs, 475 U.S. 335, 339-340, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1986), quoting Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 2824, 81 L.Ed.2d 758 (1984).
Where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983. See Malley, supra; Tower, supra; Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). That is so because the presumed legislative intent not to eliminate traditional immunities is our only justification for limiting the categorical language of the statute. "We do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy." Tower, 467 U.S., at 922-923, 104 S.Ct., at 2825-2826. "[O]ur role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice." Malley, 475 U.S., at 342, 106 S.Ct., at 1096.
In the present case, therefore, "[o]ur initial inquiry," Malley, 475 U.S., at 339, 106 S.Ct., at 1095, "the first and crucial question," Pulliam, 466 U.S., at 529, 104 S.Ct., at 1974, is "whether the common law recognized [the absolute immunities asserted]," ibid.
Since my view of the record here requires me to reach a form of prosecutorial action not addressed by the Court, and one that is arguably more difficult to analyze under the common law, I think it well to set forth in at least some detail the nature of common-law immunities. Respondent has not cited, and I have not found, a single pre-1871 case in which a prosecutor was granted absolute immunity for any of the functions contested here. Indeed, as we have previously recognized, see Imbler, 424 U.S. at 421, 96 S.Ct., at 990, the first case extending any form of prosecutorial immunity was decided some 25 years after the enactment of § 1983. However, pre-1871 common-law courts did recognize several categories of immunities which, it is argued, would have extended to the prosecutorial functions contested here had the case arisen. The relevant categories are:
(1) Judicial Immunity. This was an absolute immunity from all claims relating to the exercise of judicial functions. See, e.g., T. Cooley, Law of Torts 408-409 (1880). It extended not only to judges narrowly speaking, but to
"military and naval officers in exercising their authority to order courts-martial for the trial of their inferiors, or in putting their inferiors under arrest preliminary to trial; . . . to grand and petit jurors in the discharge of their duties as such; to assessors upon whom is imposed the duty of valuing property for the purpose of a levy of taxes; to commissioners appointed to appraise damages when property is taken under the right of eminent domain; to officers empowered to lay out, alter, and discontinue highways; to highway officers in deciding that a person claiming exemption from a road tax is not in fact exempt, or that one arrested is in default for not having worked out the assessment; to members of a township board in deciding upon the allowance of claims; to arbitrators, and to the collector of customs in exercising his authority to sell perishable property, and in fixing upon the time for notice of sale." Id., at 410-411 (footnotes omitted).
As is evident from the foregoing catalog, judicial immunity extended not only to public officials but also to private citizens (in particular jurors and arbitrators); the touchstone for its applicability was performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights. See Steele v. Dunham, 26 Wis. 393, 396-397 (1870) ("The board [of assessors] has to hear testimony; to ascertain facts; to correct errors, and arrive at results, according very much to the proceedings and processes of courts in the determination of causes; and hence they act judicially."); Barhyte v. Shepherd, 35 N.Y. 238, 241-242 (1866); Wall v. Trumbull, 16 Mich. 228, 235-237 (1867); E. Weeks, Damnum absque Injuria 209-210 (1879).
(2) Quasi-judicial immunity. This, unlike judicial immunity, extended only to government servants, protecting their "quasi-judicial" acts-that is, official acts involving policy discretion but not consisting of adjudication. Quasi-judicial immunity, however, was qualified, i.e., could be defeated by a showing of malice. See, e.g., Billings v. Lafferty, 31 Ill. 318, 322 (1863) (clerk of court); Reed v. Conway, 20 Mo. 22, 44-52 (1854) (surveyor-general); Weeks, supra, at 210 and n. 8; J. Bishop, Commentaries on Non-Contract Law § 786, pp. 365-366, and n. 1 (1889); Cooley, supra, at 411-413. I do not doubt that prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial (wherefore they are entitled to qualified immunity under § 1983, cf. Pierson, 386 U.S., at 557, 87 S.Ct., at 1219). See Wight v. Rindskopf, 43 Wis. 344, 354 (1877) (prosecutor acts as a quasi-judicial officer is deciding whether to dismiss a pending case). But that characterization does not support absolute immunity.
(3) Defamation immunity. At common law, all statements made in the course of a court proceeding were absolutely privileged against suits for defamation. J. Townshend, Slander and Libel 347-367 (2d ed. 1872); Bishop, supra, §§ 295-300, pp. 123-125. Thus, an ordinary witness could not be sued at all; a complaining witness (i.e., the private party bringing the suit) could be sued for malicious prosecution but not for defamation. This immunity did not turn upon the claimant's status as a public or judicial officer, for it protected private parties who served as witnesses, and even as prosecuting witnesses. The immunity extended, however, only against suits for defamation.
I turn next to the application of these common-law immunities to the activities at issue here. In the Court's view, petitioner makes two claims: (1) that the prosecutor gave incorrect legal advice, and (2) that he elicited false or misleading testimony at the hearing. As to the first, I agree that neither traditional judicial nor defamation immunity is applicable, though (as I have said) quasi-judicial immunity is. The prosecutor may therefore claim only qualified immunity. As to the second, I agree that the traditional defamation immunity is sufficient to provide a historical basis for absolute § 1983 immunity. In Briscoe, 460 U.S., at 330-334, 103 S.Ct., at 1113-1115, we found defamation immunity sufficient to immunize witnesses for all in-court statements. The traditional defamation immunity also extended to lawyers in presenting evidence, see Townshend, supra, at 357-358, and accordingly the immunity recognized in Briscoe applies here.
Unlike the Court, however, I do not think that disposes of petitioner's claims. The Court asserts that "petitioner has challenged only respondent's participation in the hearing, and not his motivation in seeking the search warrant." Ante, at 487. That is true if one looks solely to the complaint. But since the present case comes to us after a directed verdict, the evidence at trial must also be considered.
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence . . . may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." Fed.Rule Civ.Proc. 15(b).
Reviewing the whole of petitioner's evidence, it appears that she alleged improper action by respondent in approving the search warrant application. The judge that heard respondent's application testified at trial:
"Q: [by petitioner's counsel] And would you tell the jury who, under the procedures you have just described, has the sole and exclusive power to seek a search warrant or approve the seeking of a search warrant?
THE WITNESS: Who has this power?
[PETITIONER'S COUNSEL]: Yes.
A: It would be the prosecutor of the county or one of the deputies." Tr. 5.
"Q: [by petitioner's counsel] Can you give the jury any details about the case which you relied upon in making this decision to seek a search warrant?
"A: I don't think I relied on anything to seek a search warrant. I was told they wanted a search warrant. I went into court to ask the officers what it was they based their request on.
"Q: Do you remember answering some interrogatories in June of 1985?
"A: Yes, I do.
"Q: (Reading)
" 'Q: List each and every item of evidence upon which you relied prior to making the decision to request a search warrant?. . . .
" 'A: I relied on the facts that the statement of the accused as to the circumstances of the shooting appeared implausible, that there appeared to be insufficient injury to the accused to substantiate her story that she had been knocked out by an unknown assailant, that her sister-in-law verified that she had a .22 caliber pistol, that under hypnosis she indicated that she disposed of the pistol, which tallied with the fact that the weapon was never found, that the statements made under hypnosis indicated her guilt, and that she failed a polygraph test.'
"(Reading concludes)
"Is that your answer? Do you want to look at it?" Id., at 144-145 (emphasis added).
Finally, Officer Stonebraker, the police liaison with the prosecutor's office, testified: " 'The decision to seek a search warrant . . . was not made by me, but by my superiors in the [prosecutor's office].' " Deposition of Jack Stonebraker, Plaintiff's Exhibit A, p. 18.
Petitioner alleged in her complaint that respondent knew or should have known that hypnotically induced testimony was inadmissible, see Complaint ¶ 29. Given the judge's testimony that the application could not have proceeded without prosecutorial approval, and Reed's conflicting testimony as to whether he in fact made that decision, I think the record contained facts sufficient for the jury to find that respondent wrongfully initiated the search-warrant proceeding. Moreover, although this basis for setting aside the directed verdict was not passed upon below, I think it was adequately raised here. Petitioner's second question presented asks whether a prosecutor is absolutely immune "when he seeks a search warrant in a probable cause hearing and intentionally fails to fully inform the court [of relevant circumstances]." Brief for Petitioner i (emphasis added). It is plausible to read this as challenging both the decision to apply for a search warrant and the in-court statements at the hearing; and petitioner's arguments support that reading. The petition for certiorari, for example, questions immunity for the function of "securing a search warrant," and both the petition and the opening brief cite cases involving approval of applications rather than in-court activity. See Pet. for Cert. 6-7; Brief for Petitioner 10-11 (both citing Liffiton v. Keuker, 850 F.2d 73 (CA2 1988) and McSurely v. McClellan, 225 U.S.App.D.C. 67, 697 F.2d 309 (1982)). The United States as Amicus Curiae supporting respondent evidently understood that the approval function (or, as the United States calls it, the "screening" function) was at issue, since it addressed that question in some detail. See Brief for United States as Amicus Curiae 23-25.
Thus, while the issue has not been presented with the utmost clarity, I think it sufficiently before us. I would find no absolute immunity. As discussed above, the only relevant common-law absolute immunities were defamation immunity and judicial immunity. At common law, the tort of maliciously procuring a search warrant was not a species of defamation (an unintentional tort) but a form of the intentional tort of malicious prosecution. See 3 F. Wharton, Criminal Law 234 (7th rev. ed. 1874); Carey v. Sheets, 67 Ind. 375, 378 (1879). Defamation immunity was unavailable as a defense. Nor would judicial immunity have been applicable here, since respondent undertook no adjudication of rights. It is clear that a private party's action in seeking a search warrant did not enjoy "judicial" immunity, see, e.g., Miller v. Brown, 3 Mo. 94, 96 (1832); Carey v. Sheets, 67 Ind., at 378-379, and though no cases exist there is no reason why a similar action by a prosecutor would have been treated differently. I think it entirely plain that, in 1871 when § 1983 was enacted, there was no absolute immunity for procuring a search warrant.
An additional few words are needed, however, regarding our decision in Imbler. Imbler granted a prosecutor absolute immunity against a § 1983 claim that he had sought a grand jury indictment maliciously. It relied for that holding upon a common-law tradition of prosecutorial immunity that developed much later than 1871, and was not even a logical extrapolation from then-established immunities. While I would not, for the reasons stated above, employ that methodology here, the holding of Imbler remains on the books, and for reasons of stare decisis I would not abandon it. It could be argued, therefore, that a prosecutor's role in seeking a search warrant is akin to a prosecutor's role in seeking an indictment, and thus that Imbler § holding alone governs the present suit. But insofar as the relevant factors are concerned, this case is further from Imbler than was Malley, which denied absolute immunity to a policeman for procuring an arrest warrant. Imbler recognized absolute immunity out of a desire to protect actions "intimately associated with the judicial phase of the criminal process." 424 U.S., at 430, 96 S.Ct., at 995. Malley rejected a further extension because the act of procuring an arrest warrant "is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment." 475 U.S., at 342-343, 106 S.Ct., at 1096-1097. The act of procuring a mere search warrant is further removed still. Nor would it be proper to follow Imbler rather than Malley because the defendant is a prosecutor, as in Imbler, rather than a policeman, as in Malley. We have made clear that "it [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis." Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988) (denying absolute immunity to a judge sued for a non-judicial act); see also Ex parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1880) ("Whether the act done by [a judge] was judicial or not is to be determined by its character, and not by the character of the agent.").
For the foregoing reasons, I concur in the judgment of the Court in part and dissent in part.

## Notes

* ↑ Our treatment of qualified immunity under § 1983 has been different. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), we extended qualified immunity beyond its scope at common law. Those cases are technically distinguishable, in that they involved not the statutory cause of action against state officials created by Congress in § 1983, but the cause of action against federal officials inferred from the Constitution by this Court in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). But the opinions made nothing of that distinction, citing § 1983 cases in support of their holdings. However, it would be a mistake to expand Harlow and Anderson to absolute immunity under § 1983, both because that would be contrary to our clear precedent described above and because, with respect to absolute immunity, the consequences are more severe. The common law extended qualified immunity to public officials quite liberally, and courts will not often have occasion to go further. Absolute immunity, however, was exceedingly rare, so that the scope for judicial rewriting of § 1983 in that respect is broad indeed.
* ↑ Even if it were applied, respondent would not prevail, since there is not even any post-1871 tradition to support prosecutorial immunity in the obtaining of search warrants. Cases considering whether such an immunity exists are few and divided in their conclusions. Compare Anderson v. Manley, 181 Wash. 327, 331, 43 P.2d 39, 40 (1935) (absolute immunity) with Cashen v. Spann, 66 N.J. 541, 551, 334 A.2d 8, 13 (1975) (qualified immunity); see also Torres v. Glasgow, 80 N.M. 412, 417, 456 P.2d 886, 891 (1969) (extent of immunity unclear). Suits against policemen for obtaining search warrants generally deny absolute immunity. See, e.g., State ex rel. Hedgepeth v. Swanson, 223 N.C. 442, 444-445, 27 S.E.2d 122, 123 (1943); Peterson v. Cleaver, 124 Or. 547, 559, 265 P. 428, 432 (1928). See also Motley v. Dugan, 191 S.W.2d 979, 982 (Mo.App.1945) (qualified immunity for policeman seeking arrest warrant); Kidd v. Reynolds, 20 Tex.Civ.App. 355, 358, 50 S.W. 600, 601 (1899) (same).
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