PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-1066

______________

LEWIS JAMES FOGLE

v.

JOHN SOKOL, Pennsylvania State Trooper; 

MICHAEL STEFFEE, Pennsylvania State Trooper; 

DONALD BECHWITH, Pennsylvania State Police Trooper; 

JOSEPH STEPHEN, Pennsylvania State Police Trooper; 

JOHN BARDROFF, Corporal;

ANDREW MOLLURA, Corporal; 

GLENN WALP, Lieutenant, in their individual capacities;

COUNTY OF INDIANA, PENNSYLVANIA; 

GREGORY OLSON, Indiana County District Attorney, 

in his official and individual capacity; 

WILLIAM MARTIN, Indiana County Assistant District 

Attorney, in his individual capacity

 County of Indiana, Pennsylvania, Gregory Olson and 

William Martin,

 Appellants

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania
2

(D.C. No. 2-17-cv-00194)

District Judge: Hon. David S. Cercone

______________

Argued September 19, 2019

Before: KRAUSE, MATEY, Circuit Judges,

and QUIÑONES ALEJANDRO,

* District Judge. 

(Filed: April 20, 2020)

Anna Benvenutti Hoffmann, Esq.

Emma K. Freudenberger, Esq.

Mary K. McCarthy, Esq. [ARGUED]

Peter J. Neufeld, Esq.

Neufeld Scheck & Brustin

99 Hudson Street

8th Floor

New York, NY 10013

Thomas J. Farrell, Esq.

Farrell & Reisinger

300 Koppers Building

436 Seventh Avenue

Suite 300

Pittsburgh, PA 15219

Attorneys for Plaintiff-Appellee

* Honorable Nitza I. Quiñones Alejandro, District 

Judge, United States District Court for the Eastern District of 

Pennsylvania, sitting by designation.
3

Michael E. Kennedy, Esq.

Office of Attorney General of Pennsylvania

1251 Waterfront Place

Pittsburgh, PA 15222

Attorney for Defendants Donald Bechwith, 

Pennsylvania State Police Trooper; John Bardroff, 

Corporal; John Sokol, Pennsylvania State Police 

Trooper; Andrew Molllura, Corporal; Michael Steffee, 

Pennsylvania State Police Trooper; and Glenn Walp, 

Lieutenant, in their individual capacities

Marie M. Jones, Esq. [ARGUED]

Maria N. Pipak, Esq.

Jones Passodelis

707 Grant Street

Gulf Tower, Suite 3410

Pittsburgh, PA 15219

Attorney for Defendants-Appellants County of Indiana; 

Gregory Olson, Indiana County District Attorney, in his 

official and individual capacity; and William Martin, 

Indiana County Assistant District Attorney, in his 

individual capacity
4

______________

OPINION

______________

MATEY, Circuit Judge.

Lewis James Fogle spent more than three decades in 

prison for a crime he says he did not commit. Now free, he 

alleges that his incarceration was no accident, sketching a 

widespread conspiracy by law enforcement officials to violate 

his civil rights. Implicated in this alleged scheme are former 

Indiana County District Attorney Gregory Olson, former 

Indiana County Assistant District Attorney William Martin, 

and their one-time employer, Indiana County. They all raise 

the shield of absolute immunity, a judicially created exception 

to 42 U.S.C. § 1983. But the immunity from civil liability 

enjoyed by prosecutors hinges on the sanctity of our judicial 

process, not “any special esteem.” Kalina v. Fletcher, 522 U.S. 

118, 127 (1997) (internal quotation marks omitted). And so 

only truly prosecutorial functions, not investigative conduct, 

justify complete protection from suit. Fogle’s complaint 

alleges acts by Olson and Martin that, taken as true, fall outside 

the narrow doctrine of absolute immunity and survive a motion 

to dismiss. Fogle’s claims against Indiana County survive too

because there is no exception to the final judgment rule

allowing us to review municipal liability in this appeal. Thus, 

we will affirm the District Court’s order denying Olson and 

Martin’s motion to dismiss based on absolute immunity and

dismiss Indiana County’s appeal for lack of jurisdiction. 
5

I. BACKGROUND

We recount only the relevant history, accepting as true, 

as we must, the untested allegations in the complaint. 

A. The Crime and the Search 

In 1976, a passerby discovered the body of fifteen-yearold Deann “Kathy” Long in a wooded area near her home in 

Indiana County, Pennsylvania. Kathy’s death was senseless 

and horrific, involving a brutal assault, rape, and finally, a 

gunshot to the head. Swiftly, law enforcement opened an 

investigation with representatives from the Indiana County 

District Attorney’s Office, including Olson and Martin (or 

collectively, “the Prosecutors”), and the Pennsylvania State 

Police (the “State Troopers”). The State Troopers soon learned 

from Kathy’s sisters and family friends “that Kathy was last 

seen getting into a blue car with an unknown man” on the day

of the crime. (App. at 44.) Two of her sisters, ages nine and

twelve, described the man “as between 20 and 30 years old, 

with blue eyes, black hair that came below his ears and curled 

at the ends, sideburns, heavy eyebrows, and a heavy mustache 

over his upper lip.”1 (App. at 45.)

Lewis Fogle did not match the description, having 

“straight reddish-blonde hair that dropped down his back and 

a matching, full beard that reached his waist.” (App. at 45.) But 

Fogle’s brother Dennis owned a blue car, and rumors around 

town suggested he “invited a teenage girl to spend the night 

1 Kathy’s older sister, Patty, and a friend of the family 

corroborated the two younger sisters’ claim that they had seen 

Kathy get into the car with a man that evening.
6

with him the night after Kathy’s body was found.” (App. at 45.) 

It was a thin clue, and a search of Dennis’s car “found nothing 

of evidentiary value.” (App. at 46.)

A frustrating year passed with little progress. With no 

fresh leads, the investigation turned to Earl Elderkin, known in 

town as “‘Spaceman,’ because he claimed that he and his kids 

were from outer space.” (App. at 46.) Elderkin had drawn 

attention from law enforcement in the days after the murder 

because he fit the description of the unknown man in the blue 

car. Though Elderkin first denied any connection to the crime, 

he eventually claimed to have been present during the attack. 

He offered an alleged eyewitness account, one short on details, 

perhaps owing to his use of drugs and alcohol. He confessed to 

being in the car that picked up a girl at the Long residence and 

witnessing an unidentified man shoot her with a rifle. But soon 

enough, Elderkin failed a polygraph examination, and the 

investigation slowed to a halt.

B. Fogle Becomes the Focus

More than three years passed with no leads. Then, 

Elderkin reappeared, checking himself into a hospital for a 

psychiatric evaluation. There, he asked to speak with police 

about Kathy and offered two more accounts. In one of these 

versions, he implicated sixteen unidentified men; in the other,

he named two specific individuals, but neither was Lewis 

Fogle. And these new contradictory statements only 

diminished Elderkin’s credibility. His stories included 

variations on the number of people involved in the murder and 

consistently referenced passengers in the blue car, a detail 

Kathy’s sisters never mentioned. Even Elderkin agreed he was 
7

unreliable, stating he was not sure whether he had witnessed a 

murder, or merely imagined the whole thing.

But the investigation pressed on. Olson, working with 

the State Troopers, turned to hypnosis to try to clarify 

Elderkin’s stories. Olson’s choice of expert was unusual: an

English teacher with no formal hypnosis training. Unusual too 

was the actual hypnosis session, with the “hypnotist” acting 

“[a]t the behest of Defendants” to use “undue suggestion to 

obtain a statement from Elderkin.” (App. at 48). But even that 

direction proved insufficient, as Elderkin waffled between 

versions of his earlier statements and a new story implicating, 

for the first time, both Dennis and Lewis Fogle. Following the 

hypnosis sessions, Olson and the State Troopers again 

interviewed Elderkin. And this time, he at last provided a firm 

statement naming the Fogle brothers as two of four attackers. 

That statement became the cornerstone of the investigation.

C. The Scramble to Bolster the Case Against Fogle

Elderkin’s latest statement provided both a new theory 

and obvious challenges. For example, Elderkin’s timeline of 

the crime did not fit the chronology provided by Kathy’s sisters 

and friends. To advance their case, the State Troopers brought 

in Kathy’s older sister, Patty, and one of Patty’s friends, for a 

long interview. Eventually, under intimidation and threats of 

arrest by the State Troopers, they altered their story to align

with Elderkin’s latest story. At least for a time, as Patty’s friend 

recanted her statement soon after leaving the station.

By using the combined statements of Elderkin and Patty 

Long, and without disclosing the wide-ranging inconsistencies, 

the State Troopers obtained criminal complaints against the 
8

Fogle brothers and two others. Then, following hours of 

interrogation, threats, and a steady stream of suggestion in the 

form of details from Elderkin’s statement, Dennis Fogle 

confessed and implicated his brother Lewis. The next day, after 

even more examination by Olson and the State Troopers, 

Dennis Fogle shaped his statement to fit with Elderkin’s most 

recent account.

The case quickly began to unravel as the defendants 

discovered Elderkin’s wandering and inconsistent theories had 

largely powered the criminal complaints. Timely support soon 

arrived from jailhouse informants recruited and counseled by 

the State Troopers. Working collaboratively with law 

enforcement, and pursuing promises of leniency, two of Lewis 

Fogle’s cellmates claimed Fogle confessed to Kathy’s murder. 

Olson and Martin “either knew about, encouraged, or 

permitted” this strategy. (App. at 54.) While the State Troopers 

characterized these statements as voluntary, they and the 

Prosecutors “hid” their role in pursuing the witnesses and their

offers of favorable treatment. (App. at 54.)

In the meantime, the evidence continued to dissolve. A 

judge barred Elderkin from testifying and suppressed Dennis 

Fogle’s confession. Quickly, the State Troopers obtained a new 

statement from yet another jailhouse witness, again by feeding 

him details and offering leniency. And as before, while Olson 

and Martin “knew about, encouraged, or permitted” this 

strategy, neither the defendants nor the court knew anything 

about their actions. (App. at 56.)
9

D. Fogle’s Conviction is Vacated 

Without Elderkin’s testimony or Dennis Fogle’s 

confession, only the charges against Lewis Fogle proceeded to 

trial, some six years after Kathy’s murder. A jury found Fogle 

guilty of second-degree murder, leading to a sentence of life 

imprisonment without the possibility of parole. In 2015, Lewis 

Fogle obtained DNA evidence excluding both himself and his 

brother Dennis as the source of semen collected from Kathy. 

On that basis, Lewis Fogle successfully vacated his conviction. 

Soon after, the Commonwealth declined to pursue new 

charges, describing the case as lacking “prosecutorial merit.” 

(App. at 60.) Regrettably, no one has been convicted of the 

tragic rape and murder of Kathy Long.

E. Fogle Brings a Civil Action

Following his release, Fogle sued a host of individuals 

and entities including the State Troopers,

2 Olson and Martin, 

and Indiana County. Fogle alleges that Olson and Martin 

violated his due process rights by fabricating inculpatory 

evidence and withholding exculpatory evidence, conspired to 

prosecute him without probable cause, and failed to intervene 

when others were violating his due process rights, all in 

violation of 42 U.S.C. § 1983. Separately, Fogle alleges that 

Indiana County’s policies, practices, and customs amount to 

municipal liability under § 1983. Olson and Martin moved to 

dismiss, arguing prosecutorial immunity insulated their 

conduct from review. Indiana County moved to dismiss as 

well, arguing that it is not liable for Olson’s alleged misconduct 

2 Fogle’s claims against the State Troopers are not part 

of this appeal.
10

because the allegations do not stem from his role as a 

policymaker for the County, merely his work as a prosecutor.

The District Court granted the motion in part.3 In a 

Memorandum Opinion, the District Court explained that Olson 

and Martin were not immune because the conduct alleged by 

Fogle was investigative, centered on building a case that 

consistently lacked probable cause. The District Court also 

found Fogle’s allegations against the Prosecutors sufficiently 

grounded in official policymaking to state a claim against 

Indiana County under Monell v. Department of Social Services 

of the City of New York, 436 U.S. 658 (1978). Olson, Martin, 

and Indiana County appeal that decision.

II. OUR LIMITED JURISDICTION TO REVIEW DENIALS OF 

IMMUNITY

As a court of limited review, we begin by confirming 

our jurisdiction. The District Court had jurisdiction under 28 

U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 

U.S.C. § 1291 to review “final decisions of the district courts.” 

A final decision “does not necessarily mean the last order 

possible to be made in a case,” and can include interlocutory 

3 Fogle also brought federal and state malicious 

prosecution claims (later withdrawn) and a respondeat 

superior claim (later dismissed).
11

appeals falling within the “collateral order” doctrine. Mitchell 

v. Forsyth, 472 U.S. 511, 524–25 (1985). 

A. Fogle’s § 1983 Claims Against Olson and Martin 

The parties agree that we have jurisdiction over Olson 

and Martin’s appeal. They are correct, and we may review an 

“interlocutory appeal of the District Court’s order denying 

absolute . . . immunity . . . to the extent that the order turns on 

issues of law.” Yarris v. County of Delaware, 465 F.3d 129, 

134 (3d Cir. 2006); see also Oliver v. Roquet, 858 F.3d 180, 

187–88 (3d Cir. 2017). Review of a district court’s order 

denying a motion to dismiss on absolute immunity grounds is 

plenary.4 Yarris, 465 F.3d at 134.

B. Fogle’s Municipal Liability Claim Against Indiana 

County

But the collateral order exception does not reach 

Indiana County’s appeal. Unlike the claims against Olson and 

Martin, the County may not raise absolute immunity as a 

defense to a claim of municipal liability. See Owen v. City of 

Independence, 445 U.S. 622, 638 (1980). That is because a 

4 “We apply the same standard that district courts apply 

at the motion-to-dismiss stage, and our review is limited to the 

contents of the complaint and any attached exhibits. We are 

thus concerned with neither the accuracy of the facts alleged 

nor the merits of [Fogle’s] underlying claims.” Yarris, 465 

F.3d at 134 (internal citation omitted). We also “construe the 

facts in the manner most favorable to [Fogle], in order to 

determine whether the state officials are entitled to absolute . . . 

immunity from any claims based on their alleged conduct.” Id. 
12

“municipality may not assert the good faith of its officers or 

agents as a defense to liability under § 1983.” Id. So Indiana 

County cannot rely on the Prosecutors’ alleged absolute 

immunity to defend against its own alleged violations of 

§ 1983. So too, it cannot satisfy the exception to the final 

judgment rule for interlocutory review of an order denying 

absolute immunity. Swint v. Chambers Cty. Comm’n, 514 U.S. 

35, 37–38, 41–43 (1995); see also In re Montgomery County, 

215 F.3d 367, 375–76 (3d Cir. 2000).

No other jurisdictional hook applies. As Indiana 

County’s appeal does not arise from a final judgment or fall 

into the collateral order exception, it is premature, and we will 

dismiss.

III. THE NARROW DOCTRINE OF ABSOLUTE IMMUNITY

Olson and Martin do not just deny Fogle’s allegations. 

They argue that the truth of Fogle’s claims does not matter,

because as prosecutors they enjoy absolute immunity from the 

defense of civil actions and the “right not to stand trial.” In re 

Montgomery County, 215 F.3d at 373. Fogle argues that the 

specific path Olson and Martin allegedly pursued during the 

investigation of Kathy’s murder—characterized by 

investigation, not advocacy—lifts the veil of immunity at this 

stage. Parsing precedent in the fact-specific context of absolute 

immunity is notoriously tricky and turns not on black-letter 

rules, but on a “meticulous analysis” of the Prosecutors’ 

actions. Light v. Haws, 472 F.3d 74, 79 (3d Cir. 2007). So we 

begin with the basics, looking to the history, purpose, and 

scope of the doctrine of absolute immunity. And with that 

context established, we conclude that Fogle has alleged claims 

based on actions by Olson and Martin outside the traditional
13

policy limitations that define absolute immunity. As a result, 

his complaint survives a motion to dismiss. 

A. Absolute Immunity and § 1983

1. The Legislative Background

The law now codified as 42 U.S.C. § 1983 was first 

passed by Congress in the Civil Rights Act of 1871.5 The 1871 

Act created a federal cause of action allowing citizens to sue a 

state or local official in federal court for violating

“constitutional rights, privileges and immunities” through an 

“abuse of his position.” Monroe v. Pape, 365 U.S. 167, 172

(1961); see also Mitchum v. Foster, 407 U.S. 225, 242 (1972). 

This new private right of action flowed from earlier attempts 

by Congress to use the powers granted by the Fourteenth 

Amendment to eradicate the lingering damage caused by 

slavery.6 Monroe, 365 U.S. at 171. It targeted organized 

5 An Act to Enforce the Provisions of the Fourteenth 

Amendment to the Constitution of the United States, and for 

Other Purposes, 17 Stat. 13 (1871) (codified as amended at 42 

U.S.C. § 1983 (1996)); see Briscoe v. LaHue, 460 U.S. 325, 

336–37 (1983); see also Cass R. Sunstein, Section 1983 and 

the Private Enforcement of Federal Law, 49 U. Chi. L. Rev. 

394, 398–400 (1982). Congress amended the law and 

reenacted it as Section 1979 of the Revised Statutes of 1874.

Rev. Stat. § 1979 (1874). See Chapman v. Hous. Welfare 

Rights Org., 441 U.S. 600, 608 (1979). 6 The 1871 Act built on the foundations of the 

Enforcement Act of May 31, 1870, 16 Stat. 140, which, in turn, 

built upon the Civil Rights Act of 1866, 14 Stat. 27. Sunstein, 
14

terrorism against African Americans, including growing 

concerns that “Klan members and sympathizers controlled or 

influenced the administration of state criminal justice.”7

Briscoe v. LaHue, 460 U.S. 325, 337 (1983). Despite these

legislative efforts, obstacles to the protections the Act offered 

to citizens quickly emerged.

8 But by the 1960s, the Supreme 

supra, at 398–99. The 1871 Act authorized individual suits 

alleging deprivation of constitutional rights. Chapman, 441 

U.S. at 608. Congress expanded the remedy to include 

violations of federal law in 1874. Id. at 608–09.

7 The 1871 Act earned the name “the Ku Klux Klan 

Act.” See Chapman, 441 U.S. at 628 (Powell, J., concurring);

see also Wilson v. Garcia, 471 U.S. 261, 276 (1985) (“The 

specific historical catalyst for the Civil Rights Act of 1871 was 

the campaign of violence and deception in the South, fomented 

by the Ku Klux Klan, which was denying decent citizens their 

civil and political rights.”); Cong. Globe, 42d Cong., 1st Sess. 

244 (1871) (reprinting message from President Ulysses S. 

Grant to Congress seeking legislation to protect civil rights).

8 One year after the 1871 Act’s adoption, the Supreme 

Court narrowly confined the rights protected by the Fourteenth 

Amendment to those “which owe their existence to the Federal 

government, its National character, its Constitution, or its 

laws.” Slaughter-House Cases, 83 U.S. 36, 79 (1872). Soon 

after, the Court held that “members of a white militia who had 

brutally murdered as many as 165 black Louisianans 

congregating outside a courthouse had not deprived the victims 

of their privileges as American citizens.” McDonald v. City of 

Chicago, 561 U.S. 742, 808–09 (2010) (Thomas, J., 

concurring) (discussing United States v. Cruikshank, 92 U.S. 

542 (1876)). And in 1883, the Court held that criminal 
15

Court’s incorporation of much of the Bill of Rights against the 

states meant that § 1983 again provided a federal remedy 

against state officials who abused their office by acting “under 

color of” state law.9 42 U.S.C. § 1983; see David Rittgers, 

Connick v. Thompson, An Immunity that Admits of (Almost) 

No Liabilities, 2011 Cato Sup. Ct. Rev. 203, 209–10 (2011).

Along the way, a new barrier arrived in the form of judicially 

created immunities from suit. 

conspiracy penalties in the 1871 Act could not apply against an 

individual participating in a lynching leading to one death and 

the beating of four men in state custody. United States v. 

Harris, 106 U.S. 629, 640 (1883). “The effect of such a narrow 

judicial construction of state action and ‘privileges and 

immunities’ on section 1983 was devastating.” Developments 

in the Law: Section 1983 and Federalism, 90 Harv. L. Rev. 

1133, 1161 (1977). Indeed, “[d]espite continuing infringement 

of the civil liberties of the freedmen and their descendants, 

virtually no actions were brought under the statute.” Id.; see 

also Comment, The Civil Rights Act: Emergence of an 

Adequate Federal Civil Remedy?, 26 Ind. L. J. 361, 363 (1951) 

(noting only twenty-one cases brought under the relevant 

portions of the Third Civil Rights Act between 1871 and 1920).

9 The phrase “by color of” dates to at least the thirteenth 

century and refers to an abuse of authority by a governmental 

official exceeding, rather than conforming to, the law. Steven 

L. Winter, The Meaning of “Under Color of” Law, 91 Mich. 

L. Rev. 323, 325 (1992). 
16

2. The Extra-Textual Origins of Immunity in 

§ 1983 Actions

The text of § 1983 does not provide any immunities 

from suit. Malley v. Briggs, 475 U.S. 335, 342 (1986). Rather, 

“[i]t purports to subject ‘[e]very person’ acting under color of 

state law to liability for depriving any other person in the 

United States of ‘rights, privileges, or immunities secured by 

the Constitution and laws.’”10 Burns v. Reed, 500 U.S. 478, 484 

(1991) (second alteration in original) (quoting 42 U.S.C. 

§ 1983). Yet in a line of cases dating back more than half a 

century, the Supreme Court “has consistently recognized . . . 

that § 1983 was not meant ‘to abolish wholesale all commonlaw immunities.’” Id. (quoting Pierson v. Ray, 386 U.S. 547,

554 (1967)). Instead, the Court held that “[c]ertain immunities 

were so well established in 1871, when § 1983 was enacted, 

that ‘we presume that Congress would have specifically so 

provided had it wished to abolish’ them.” Buckley v. 

Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson, 386 

U.S. at 554–55). As a result, “§ 1983 is to be read in harmony 

with general principles of tort immunities and defenses rather 

than in derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 

418 (1976). “To that end, the Court has identified two kinds of 

immunities under § 1983: qualified immunity and absolute 

immunity.” Yarris, 465 F.3d at 135. “Most public officials are 

entitled only to qualified immunity.” Buckley, 509 U.S. at 268

(citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Under 

10 The clarity of the text prompted Justice Douglas to 

remark “[t]o most, ‘every person’ would mean every person, 

not every person except judges.” Pierson v. Ray, 386 U.S. 547, 

559 (1967) (Douglas, J., dissenting).
17

qualified immunity, “government officials are not subject to 

damages liability for the performance of their discretionary 

functions when ‘their conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.’”11 Id. (quoting Harlow, 

457 U.S. at 818).

3. The Functional Approach to Absolute Immunity 

for Prosecutorial Conduct

The absolute immunity extended to official actions was, 

for a time, grounded by a historical approach. Under this view, 

“some officials perform ‘special functions’ which, because of 

their similarity to functions that would have been immune 

when Congress enacted § 1983, deserve absolute protection 

from damages liability.” Buckley, 509 U.S. at 268–69 (quoting 

Butz v. Economou, 438 U.S. 478, 508 (1978)). So courts looked

for public officials shielded from civil suits at common law.

Judges were an easy fit, as the Court found records of complete 

immunity dating back centuries. See Bradley v. Fisher, 80 U.S. 

335, 346–48 (1871) (“The principle, therefore, which exempts 

judges of courts of superior or general authority from liability 

in a civil action for acts done by them in the exercise of their 

11 There is growing concern that the doctrine of 

qualified immunity has likewise “diverged from the historical 

inquiry mandated by the statute.” Ziglar v. Abassi, 137 S. Ct. 

1843, 1871–72 (2017) (Thomas, J., concurring); see also 

Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, 

J., dissenting); Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 

2019) (Willett, J., concurring in part and dissenting in part) 

(concluding “qualified immunity smacks of unqualified 

impunity”).
18

judicial functions, obtains in all countries where there is any 

wellordered system of jurisprudence.”); see also Yates v. 

Lansing, 5 Johns. 282, 291–92 (N.Y. Sup. Ct. 1810) 

(discussing judicial immunity in English common law); 

Russell v. Richardson, 905 F.3d 239, 248 (3d Cir. 2018). 

Jurors, too, had long been immune. Imbler, 424 U.S. at 423

n.20 (“The immunity of grand jurors, an almost equally 

venerable common-law tenet . . . also has been adopted in this 

country.”); Butz, 438 U.S. at 509–10 (describing immunity 

extended to both grand and petit jurors). But prosecutors were 

a different story, as the modern office of a public prosecutor 

was uncommon in 1871.12 Kalina, 522 U.S. at 124 n.11. So 

instead, courts departed from the historical approach, noting 

both the post-1871 “American cases addressing the availability 

of malicious prosecution actions against public prosecutors” 

and “the policy considerations underlying the firmly 

established common-law rules providing absolute immunity 

for judges and jurors.” Id. At its core, absolute prosecutorial 

immunity was not born out of pre-§1983 tradition, but evolved 

12 See also Kalina, 522 U.S. at 132 (Scalia, J., 

concurring) (“There was, of course, no such thing as absolute 

prosecutorial immunity when § 1983 was enacted.”). Rather, 

as scholars have found, the first judicial decision granting 

absolute prosecutorial immunity appeared more than twentyfive years after the passage of § 1983. See Margaret Z. Johns, 

Reconsidering Absolute Prosecutorial Immunity, 2005 BYU L. 

Rev. 53, 113–16 (2005) (citing Parker v. Huntington, 68 Mass. 

124 (Mass. 1854); Griffith v. Slinkard, 44 N.E. 1001 (Ind. 

1896)); see also Kalina, 522 U.S. at 123–24 (acknowledging 

prosecutorial immunity only relies “in part on common-law 

precedent”).
19

as new common law reflecting “‘a balance’ of ‘evils.’”13 Van 

de Kamp v. Goldstein, 555 U.S. 335, 340 (2009) (quoting 

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

But there are limits placed on that balance scale. While 

the Supreme Court has extended the defense of absolute 

immunity to certain prosecutorial functions, it has not 

blanketed “the actions of a prosecutor . . . merely because they 

are performed by a prosecutor.” Buckley, 509 U.S. at 273. 

Instead, courts must “focus upon the functional nature of the 

activities rather than [the prosecutor’s] status” to determine 

whether absolute immunity is warranted. Imbler, 424 U.S. at 

430; accord Burns, 500 U.S. at 486. Applying this functional 

approach, the Supreme Court has “emphasized that the official 

seeking absolute immunity bears the burden of showing that 

such immunity is justified for the function in question.” Burns, 

500 U.S. at 486. Indeed, “[t]he presumption is that qualified 

rather than absolute immunity is sufficient to protect 

government officials in the exercise of their duties.” Id. at 486–

87. 

That functional test separates advocacy from everything 

else, entitling a prosecutor to absolute immunity only for work 

“intimately associated with the judicial phase of the criminal 

process.” Id. (quoting Imbler, 424 U.S. at 430). In that regard, 

the Court has found, for instance, that prosecutors are immune

13 See, e.g., Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir. 

1926) (holding prosecutors “should be no more liable to private 

suits for what they say and do in the discharge of their duties 

than are the judges and jurors”). The Supreme Court affirmed 

the decision in Yaselli in a per curiam opinion citing two cases 

on judicial immunity. Yaselli v. Goff, 275 U.S. 503 (1927).
20

from claims arising from their conduct in beginning a 

prosecution, Imbler, 424 U.S. at 431, including “soliciting false 

testimony from witnesses in grand jury proceedings and 

probable cause hearings,” Kulwicki v. Dawson, 969 F.2d 1454, 

1465 (3d Cir. 1992), presenting a state’s case at trial, Imbler,

424 U.S. at 431, and appearing before a judge to present 

evidence, Burns, 500 U.S. at 491–92. See also Van de Kamp, 

555 U.S. at 344 (finding prosecutors absolutely immune from 

claims arising from conduct “directly connected with the 

conduct of a trial” that “necessarily require[d] legal knowledge 

and the exercise of related discretion”).

By contrast, a prosecutor’s “investigatory functions that 

do not relate to an advocate’s preparation for the initiation of a 

prosecution or for judicial proceedings are not entitled to 

absolute immunity.” Buckley, 509 U.S. at 273. Determining the 

precise function that a prosecutor is performing is a factspecific analysis. For instance, “[a] prosecutor neither is, nor 

should consider himself to be, an advocate before he has 

probable cause to have anyone arrested.” Id. at 274. Before 

probable cause for an arrest, a prosecutor’s “mission at that 

time [i]s entirely investigative in character.” Id. “Of course, a 

determination of probable cause does not guarantee a 

prosecutor absolute immunity from liability for all actions 

taken afterwards. Even after that determination, . . . a 

prosecutor may engage in ‘police investigative work’ that is 

entitled to only qualified immunity.” Id. at 274 n.5. It follows 

that when prosecutors function as investigators, rather than 

advocates, they enjoy no right to absolute immunity. Id. at 

275–76; see also Burns, 500 U.S. at 495 (observing that 

absolute immunity is not so “expansive” as to protect all 

“direct participation in purely investigative activity”); Kalina, 

522 U.S. at 129–31 (declining to extend absolute immunity 
21

where a prosecutor makes a false statement of fact in an 

affidavit supporting an arrest warrant).

So to determine whether Olson and Martin may invoke 

absolute immunity as a complete bar to civil liability, we must 

parse these fine lines between advocacy and investigation. And 

while “[i]t is tempting to derive bright-line rules” from the 

Supreme Court’s jurisprudence, we have “cautioned against 

such categorical reasoning” to “preserve the fact-based nature 

of the inquiry.” Odd v. Malone, 538 F.3d 202, 210 (3d Cir. 

2008); see also Imbler, 424 U.S. at 431 n.33. As a result, “our 

prosecutorial immunity analysis focuses on the unique facts of 

each case and requires careful dissection of the prosecutor’s 

actions.” Odd, 538 F.3d at 210. Although the fair distance from 

the ordinary language of § 1983 and “the ‘functional 

categories’ approach to immunity questions . . . make faithful 

adherence to the common law embodied in [it] very difficult,” 

that is the path we must follow. Kalina, 522 U.S. at 135 (Scalia, 

J., concurring).

But it should not be easy travel. Once asserted, the onus 

is on the prosecutor to demonstrate “that absolute immunity 

should attach to each act he allegedly committed that gave rise 

to a cause of action.” Light, 472 F.3d at 80. And that burden is 

uniquely heavy. Odd, 538 F.3d at 207 (quoting Light, 472 F.3d 

at 80–81). Indeed, “[a]sserting a[n] . . . immunity defense via a 

Rule 12(b)(6) motion subjects the defendant to a more

challenging standard of review than would apply on summary 

judgment.’’ Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 

2004). That is because in a motion to dismiss, “it is the 

defendant’s conduct as alleged in the complaint that is

scrutinized.” Behrens v. Pelletier, 516 U.S. 299, 309 (1996). 

Meaning to earn the protections of absolute immunity, a 
22

defendant must show that the conduct triggering absolute 

immunity “clearly appear[s] on the face of the complaint.” 

Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir. 1989).

Immunity, therefore, is neither one-size-fits-all, nor a 

one-way street. Our analysis “has two basic steps, though they 

tend to overlap.” Schneyder v. Smith, 653 F.3d 313, 332 (3d 

Cir. 2011). First, we “ascertain just what conduct forms the 

basis for the plaintiff’s cause of action.” Id. Then, we 

“determine what function (prosecutorial, administrative, 

investigative, or something else entirely) that act served,” id., 

to determine whether the Prosecutors have carried their 

“burden of showing that such immunity is justified for the 

function in question,” Burns, 500 U.S. at 486. Thus, while we 

tend to discuss prosecutorial immunity based on alleged acts, 

our ultimate analysis is whether a defendant has established 

absolute prosecutorial immunity from a given claim. 

Using this framework, we conclude that Olson and 

Martin are not, at this stage, entitled to absolute immunity from 

Fogle’s § 1983 claims if they relate to investigative, not 

prosecutorial, activity. 

B. Applying the Functional Test to Olson and Martin’s 

Absolute Immunity Defense

Does absolute immunity bar each of Fogle’s § 1983 

claims? The answer requires a “careful dissection of the 

prosecutor[s’] actions” that support Fogle’s claims. Odd, 653 

F.3d at 210.

Fogle raises several claims against Olson and Martin:

violation of Fogle’s due process rights by fabricating evidence 
23

and withholding material exculpatory and impeachment 

evidence; civil rights conspiracy; and failure to intervene. All 

of these claims hinge on the same conduct: Olson and Martin’s 

roles in obtaining statements from Elderkin, Patty Long, 

Dennis Fogle, and the jailhouse informants; their initiation of 

the prosecution against Lewis Fogle; and their concealment of 

their tactics from the court and from the defense. We will 

“carefully defin[e] [each] act that gave rise to [Fogle’s] suit” in 

turn. Odd, 538 F.3d at 202. 

1. Olson and Martin’s Conduct in Procuring 

Elderkin’s Statements

We start with the saga of Elderkin. Olson allegedly 

“arranged for an English teacher with no formal training in 

hypnosis to ‘hypnotize’ Elderkin.” (App. at 48.) Then, Olson 

and the State Troopers directed “the ‘hypnotist’ [to use] undue 

suggestion to obtain a statement from Elderkin implicating” 

Fogle. (App. at 48.) Immediately afterward, working alongside 

the State Troopers, Olson took another statement from 

Elderkin and this time, “there were no longer large gaps in 

Elderkin’s memory, the account was no longer hazy, and he 

expressed little uncertainty about what had occurred.” (App. at 

48.) It was this post-hypnosis statement that provided the 

probable cause to arrest Fogle.

Olson’s role in obtaining Elderkin’s statement 

constitutes investigatory conduct, a conclusion flowing from 

the Supreme Court’s decision in Burns v. Reed. In Burns, a 

prosecutor claimed absolute immunity for providing police 

officers guidance on how to use hypnosis to obtain a witness 

statement. 500 U.S. at 482–83. The Supreme Court held that a 

prosecutor “advising the police in the investigative phase of a 
24

criminal case” did not warrant absolute immunity. Id. at 493.

Olson’s conduct goes beyond advice, and allegedly included

finding the hypnotist, encouraging undue suggestion, and 

participating in Elderkin’s post-hypnosis questioning. By

choreographing and securing Elderkin’s statement, Olson 

played “the detective’s role” to “search[] for the clues and 

corroboration,” Buckley, 509 U.S. at 273, and establish 

probable cause to arrest Fogle. Those acts do not enjoy 

absolute immunity. 

While Martin’s alleged conduct stands in a different 

light, it leads to the same conclusion. The complaint alleges

that “Defendants knew that Elderkin’s post-hypnosis 

statement, like his previous statements, was wholly unreliable, 

untrustworthy, and entirely false” and “knew it was 

contradicted by evidence obtained earlier during the 

investigation.” (App. at 49.) That could mean Martin was just 

as involved as Olson in shaping Elderkin’s testimony. Or it 

might mean Martin learned of the discrepancies later, well into 

his preparation for trial. But recall that for Martin to succeed 

on a motion to dismiss based on absolute immunity, “the 

defense must clearly appear on the face of the complaint.” 

Wilson, 878 F.2d at 776. While more scrutiny, and additional 
25

facts, may produce a different result, Martin has not yet carried 

his burden.14

2. Patty Long’s Statement

Fogle also alleges that “Defendants used improper 

tactics to obtain false evidence that would eliminate 

inconsistencies, corroborate Elderkin’s statement and help 

them close the case.” (App. at 50.) To accomplish that goal, 

Fogle claims, the State Troopers questioned Patty Long until 

she “adopted a new, false story, fed to [her].” (App. at 50.) 

14 We have recognized that where “a lack of factual 

specificity in a complaint prevents the defendant from framing 

a fact-specific qualified immunity defense, which, in turn, 

precludes the district court from engaging in a meaningful 

qualified immunity analysis[,] [t]he appropriate remedy is the 

granting of a defense motion for a more definite statement 

under Federal Rule 12(e).” Thomas v. Independence Township, 

463 F.3d 285, 289 (3d Cir. 2006); see also Weiland v. Palm

Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321 n.10 (11th 

Cir. 2015). This rings equally true for invocations of absolute 

immunity. Courts should be mindful that where the allegations 

in a complaint do not require a more definite statement, 

immunity defenses will often require the benefit of discovery. 

Russell, 905 F.3d at 253 (quoting Thomas, 463 F.3d at 301) 

(noting “summary judgment remains a useful tool for 

precluding insubstantial claims from proceeding to trial”); see 

also Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 

2000) (Easterbrook, J., concurring in part and concurring in the 

judgment) (“Rule 12(b)(6) is a mismatch for immunity and 

almost always a bad ground for dismissal.”). We defer to the 

District Court to determine the best path.
26

Fogle then alleges that “[i]n the probable cause affidavit they 

presented to the magistrate judge,” Olson and Martin failed to 

report the “past inconsistent statements of Patty Long.” (App. 

at 51–52.) But failing to report the alleged inconsistencies 

while “appearing before a judge and presenting evidence” 

involves the Prosecutors’ conduct as advocates, where they 

enjoy absolute immunity. Burns, 500 U.S. at 491. So the 

Prosecutors are entitled to absolute immunity for this conduct.

3. Dennis Fogle’s Statement 

Next, Lewis Fogle alleges that the State Troopers 

interrogated his brother Dennis twice in the twenty-four-hour 

period after his arrest. During the first interrogation, the State 

Troopers “worked to coerce a confession from Dennis” by 

“using threats, intimidation, and . . . feeding him non-public 

details from Elderkin’s statement about the way the crimes

supposedly had occurred.” (App. at 52.) By the next day, Olson 

joined the fray and “used the same improper tactics to obtain

another false and fabricated” statement from Dennis. (App. at 

52.) And to cover up their misconduct, the Prosecutors 

collectively “misrepresented in written and oral reports that 

Dennis Fogle had volunteered the ‘confession’ and subsequent 

statement without coercion or suggestion.” (App. at 52.)

Olson’s claim of immunity for this conduct is temporal: 

he argues that since Dennis’s interrogation occurred after 

arrest, the “judicial process was clearly in motion” entitling 

him to immunity. (Opening Br. at 20.) But “[w]e have rejected 

bright-line rules that would treat the timing of the prosecutor’s 

action (e.g. pre- or postindictment), or its location (i.e. in- or 

out-of-court), as dispositive.” Odd, 538 F.3d at 210. That 

approach sensibly counsels that we “not view the filing of a 
27

complaint as a foolproof measure of the commencement of 

‘quasi-judicial’ activity.” Kulwicki, 969 F.2d at 1466. Instead, 

the “key to the absolute immunity determination is not the 

timing of the investigation relative to a judicial proceeding, but 

rather the underlying function that the investigation serves and 

the role the [prosecutor] occupies in carrying it out.” B.S. v. 

Somerset County, 704 F.3d 250, 270 (3d Cir. 2013). 

As alleged, Olson’s conduct in interviewing Dennis 

Fogle was not that of an advocate. Rather, the interview 

occurred at the end of a long chain of investigative events led, 

or supervised, by Olson. Recall that without Elderkin’s 

hypnotic recollections, there may have been no probable cause 

for Dennis Fogle’s arrest. Allegedly, Olson knew this; indeed,

Lewis Fogle claims Olson’s active participation fueled the 

entire investigation. For that reason, Olson was not acting as

an advocate “interviewing witnesses as he prepare[d] for trial”;

instead, he was investigating the theory of his case by 

“searching for . . . clues.” Buckley, 509 U.S. at 273. On that 

basis, and at this stage, Olson does not receive absolute 

immunity for his role in obtaining Dennis Fogle’s statement or 

concealing the methods leading to his confession.

Less clear are Martin’s interactions with Dennis Fogle. 

The complaint alleges that “Defendants misrepresented in 

written and oral reports that Dennis Fogle had volunteered the 

‘confession’ and subsequent statement without coercion or 

suggestion, and otherwise hid their misconduct with respect to 

Dennis Fogle’s statements.” (App. at 52–53.) Based on this 

assertion, Martin may have functioned as an advocate, an 

investigator, or played no role at all. While discovery may 

produce a different result, at this stage, Martin has not carried 

his burden to enjoy the protections of absolute immunity for
28

his conduct related to Dennis Fogle’s confession. See Yarris, 

465 F.3d at 138 (holding that, where it is not clear from a 

complaint whether a prosecutor’s action was investigative or 

quasi-judicial, a motion to dismiss based on absolute immunity 

is properly denied).

4. Statements by the Jailhouse Informants

Fogle alleges that Olson and Martin “knew about, 

encouraged, or permitted” the State Troopers to fabricate 

statements from three jailhouse informants, each describing 

Fogle’s purported confession to the crime. (App. at 54, 56.)

Again, Olson and Martin assert that absolute immunity protects

this conduct because it “occurred after the initiation of criminal 

charges.” (Opening Br. at 18.) And again, relying on our 

decision in Yarris, the Prosecutors call for a bright line 

extending absolute immunity to all conduct surrounding

informants after the filing of charges. But once again, that line 

is unsupported by our precedent. 

Our role is not to look at the “timing of the prosecutor’s 

action (e.g. pre- or postindictment),” but at the function being 

performed. Odd, 538 F.3d at 210. In Yarris, after closely 

reviewing the facts, we held that the prosecutors were entitled 

to absolute immunity from a claim that they had obtained a 

false statement from a jailhouse informant. 465 F.3d at 139.

Our conclusion turned on the attorneys’ work in preparation 

for trial with the prosecutors acting as “advocates rather than 

investigators.” Id. In contrast, Fogle alleges that the 

Prosecutors not only solicited false statements from jailhouse 

informants, but deliberately encouraged the State Troopers to

do the same “[k]nowing their evidence was weak” (App. at 53),

given the fabricated (Elderkin), inconsistent (Kathy’s sister 
29

and friend), and coerced (Dennis Fogle) witness statements.

Thus, the Prosecutors were functioning not as advocates, but 

as investigators seeking to generate evidence in support of a 

prosecution. This illustrates why “a determination of probable 

cause does not guarantee a prosecutor absolute immunity from 

liability for all actions taken afterwards,” because “[w]hen the 

functions of prosecutors and detectives are the same, as they 

were here, the immunity that protects them is also the same.” 

Buckley, 509 U.S. at 274 n.5, 276. Accepting the facts alleged 

as true and drawing all inferences in favor of Fogle, neither 

Olson nor Martin have carried their burden to demonstrate that 

they are entitled to absolute immunity for this conduct at this 

stage.

5. The Prosecutors’ Conduct at Hearings and Trial

Finally, some of Fogle’s claims rest on a host of actions 

within the Prosecutors’ duties as advocates during the judicial 

process. He alleges that at hearings and at trial the Prosecutors 

withheld material exculpatory evidence from defense counsel, 

the court, and the jury; filed a criminal complaint without 

probable cause; and committed perjury before and during trial. 

These activities are “intimately associated with the judicial 

phase of the criminal process.” Burns, 500 U.S. at 486 (quoting 

Imbler, 424 U.S. at 430). And all enjoy absolute immunity. See 

id. at 487–92 (wrongful prosecution); Imbler, 424 U.S. at 431

(beginning prosecution and presenting the state’s case); Smith 

v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000) (withholding 

evidence); Davis v. Grusemeyer, 996 F.2d 617, 630 n.28 (3d 

Cir. 1993) (perjury), overruled on other grounds by Rolo v. 
30

City Investing Co. Liquidating Tr., 155 F.3d 644 (3d Cir. 

1998).

IV. CONCLUSION

In sum, Olson and Martin are absolutely immune only 

for their alleged conduct in launching the prosecution against 

Fogle, failing to include information about Patty Long’s 

previous statements in their probable cause affidavit, 

withholding material exculpatory and impeachment evidence, 

and making misrepresentations to the court. But Olson and 

Martin are not, at this stage, entitled to absolute immunity for 

their alleged conduct in procuring Elderkin’s statements, 

Dennis Fogle’s confession, or the jailhouse informant 

statements. As these actions implicate all of Fogle’s claims, we 

will affirm the District Court’s decision to deny dismissal 

based on absolute immunity. We leave for the District Court 

on remand to determine which of Fogle’s claims against Olson 

and Martin survive on the merits. And, of course, Olson and 

Martin are still entitled to seek qualified immunity. 

Our decision offers little to celebrate. Lewis Fogle can 

move forward with some, but not all, of the allegations in his 

complaint against the Prosecutors. The Prosecutors must 

explain some, but not all, of their choices. And decades later, 

answers and earthly peace still elude Deann “Kathy” Long and 

her grieving family. But the doctrine of absolute immunity is 

fact-bound, seeking to pinpoint the moments when 

investigation becomes advocacy, with the curtain of immunity 

raising and lowering in response. Although absolute 

prosecutorial immunity exceeds both the doctrine’s historic 

scope and the statutory text, we cannot use the original 

meaning of a statute as a “makeweight” against precedent, 
31

United States v. Johnson, 921 F.3d 991, 1002 (11th Cir. 2019), 

nor hand-pick binding decisions to follow. Bosse v. Oklahoma, 

137 S. Ct. 1, 2 (2016). So we will affirm the District Court’s 

order denying Olson and Martin’s motion to dismiss based on

absolute immunity as far as the claims depend on nonprosecutorial activities and dismiss Indiana County’s appeal 

for lack of jurisdiction.