PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAMELA LYLES; JOHN EDMOND,

Plaintiffs-Appellees,

v.

DEWEY SPARKS, Inspector,

Individually and as Postal Inspector;

M. SHERWIN GREEN, Individually and

as Postal Inspector; THOMAS

KRAUTHEIM, Individually and as

Postal Inspector; WENDY ARNELL,

Individually and as U.S. Assistant

Attorney for the District of

No. 93-1442

Maryland,

Defendants-Appellants,

and

UNITED STATES POSTAL SERVICE

GENERAL COUNSEL; ROGER WOLF,

Individually and as Assistant

Attorney General of the State of

Maryland; ARNOLD POPKIN; RICHARD

SPITZ, JR.; UNITED STATES OF

AMERICA,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

M. J. Garbis, District Judge.

(CA-90-1181)

(CA-92-2912)

Argued: September 27, 1995

Decided: March 19, 1996
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Wilkins and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: David Ira Salem, Assistant United States Attorney,

Greenbelt, Maryland, for Appellant. Pamela Lynne Lyles, Washington, D.C., for Appellees. ON BRIEF: Lynne A. Battaglia, United

States Attorney, Greenbelt, Maryland, for Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Following an investigation into a contact lens mail order business,

the United States Postal Service obtained a criminal indictment charging John Edmond and his attorney, Pamela Lyles, with mail fraud.

Edmond and Lyles were arrested, detained, and released on bond.

After Edmond and Lyles filed a motion to dismiss their indictment for

prosecutorial vindictiveness, the government dismissed the indictment. And this civil action followed.

In their civil complaint, Edmond and Lyles alleged that various

postal inspectors and the Assistant United States Attorney assigned to

the case violated their constitutional rights in securing their indictment and arresting them. Asserting official immunity from suit, those

defendants filed a motion to dismiss or, alternatively, for summary

judgment, but the district court denied their motion. Because we hold

(1) that absolute prosecutorial immunity shields the Assistant United

States Attorney from the constitutional tort claims against her; (2) that

absolute witness immunity shields one of the postal inspectors from

the Fourth Amendment claim that he committed perjury before the

grand jury; and (3) that qualified immunity shields the postal inspec-

 2
tors from the remaining constitutional tort claims against them, we

reverse.

I

John Edmond owned and operated Landover Contact Lens Center

("Landover Lens"), a contact lens mail order company located in

Maryland. Pamela Lyles was Edmond's counsel and, although not an

owner, was intimately involved in running Landover Lens. Prompted

by numerous customer complaints, Postal Inspector M. Sherwin

Green began an investigation of Landover Lens in early 1986.

Green's investigation led to civil administrative action against Landover Lens and a 15-count criminal indictment charging Edmond and

Lyles with mail fraud.

The criminal indictment charged that Edmond and Lyles had carried out a scheme to defraud contact lens suppliers by ordering lenses

from them, paying them the minimum amount required to keep the

account open, refusing to pay the remainder of the account or paying

with checks not covered by sufficient funds, and, when further credit

was refused, moving to another supplier. The indictment also alleged

that in some instances Edmond and Lyles had used different business

names to obtain lenses from suppliers who had already cut them off.

Green and his supervisor Thomas Krautheim, accompanied by

other postal inspectors and local police officers, arrested Edmond and

Lyles at their Maryland apartment during the pre-dawn hours of February 18, 1987. The officers took Edmond and Lyles to the Postal

Inspection Division Headquarters in Washington, D.C., where they

were questioned, booked, and fingerprinted. The officers then transported Edmond and Lyles to the federal courthouse in Baltimore,

Maryland, where they were held for nine hours before receiving a bail

hearing and being released on bond pending trial.

Edmond and Lyles filed a motion to dismiss their indictment for

prosecutorial vindictiveness. After a hearing on the motion had been

scheduled, the United States Attorney for the District of Maryland

dismissed the indictment.

 3
Thereafter, in February 1988, Edmond and Lyles filed a civil action

in the United States District Court for the District of Columbia based

on their allegedly wrongful prosecution and arrest against the United

States Postal Service General Counsel; Postal Inspectors Green,

Krautheim, and Dewey Sparks; Assistant United States Attorney

Wendy Arnell; Assistant Attorney General for the State of Maryland

Roger Wolf; and two complaining witnesses, Richard Spitz, Jr., a

businessman who had leased facilities to Landover Lens, and Arnold

Popkin, Spitz' attorney. As amended, the complaint alleged various

constitutional torts under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as violations of 42 U.S.C. §§ 1983 and 1985, 15 U.S.C. § 1681 (Fair Credit

Reporting Act), 12 U.S.C. § 3408 (Right to Financial Privacy Act),

and Maryland law.

Specifically regarding the federal defendants, Edmond and Lyles

claimed, inter alia, (1) that Arnell had threatened to indict Edmond

if he filed a bankruptcy petition; (2) that Arnell had secured their

indictment by suborning perjured testimony from Spitz; (3) that

Arnell and Green had made false statements before the grand jury; (4)

that Arnell and Green had conspired to make, and made, false representations about Edmond and Lyles in other judicial proceedings; (5)

that Sparks had failed to take any action to stop Green's wrongful

conduct; and (6) that Arnell had sent a defamatory letter to the D.C.

Bar Counsel informing him of Lyles' indictment in Maryland and,

thereafter, had failed to notify the Bar Counsel of the indictment's

dismissal. Edmond and Lyles also claimed as abuses during their

arrest and processing: (1) that the officers had removed Edmond from

his apartment in his bedclothes; (2) that Green had attempted to prevent Edmond from wearing shoes as they left the apartment; (3) that

Green and Krautheim had declined to produce an arrest warrant upon

Lyles' inquiry; (4) that the arresting officers had verbally abused and

humiliated them; and (5) that the officers had transported Edmond

and Lyles to the Postal Inspection Division Headquarters in Washington, D.C., for questioning, fingerprinting, and booking and then to

Baltimore, where they were held for nine hours before receiving a bail

hearing. Finally, Edmond and Lyles claimed that Arnell and Green

had falsely named Lyles as an owner of Landover Lens and sought

her indictment and arrest to deny Edmond his counsel of choice.

 4
The federal defendants filed a motion to dismiss the complaint, or,

in the alternative, for summary judgment on several grounds. In

November 1989, the D.C. district court dismissed the entire action

"save plaintiff Edmond's claim against defendant Green in his individual capacity for alleged violations of the Fair Credit Reporting

Act." Edmond v. United States Postal Serv. , 727 F. Supp. 7, 12

(D.D.C. 1989).1

While their appeal of the D.C. district court's dismissal order was

pending before the U.S. Court of Appeals for the District of Columbia, Edmond and Lyles filed a separate action in the district court in

Maryland against the United States, Green, Popkin, and Spitz. In their

Maryland complaint--which contained claims under the Federal Tort

Claims Act, 28 U.S.C. §§ 2671-2680, and state law--Edmond and

Lyles alleged that Green, Popkin, and Spitz had conspired to bring

criminal prosecutions against them by presenting false information to

both the United States Attorney's office and the grand jury impanelled in Maryland.

Then, on November 22, 1991, the D.C. Circuit handed down its

decision reversing in part the district court's ruling dismissing

Edmond's and Lyles' D.C. action. Edmond v. United States Postal

Serv. Gen. Counsel, 949 F.2d 415, 417 (D.C. Cir. 1991). The court

of appeals concluded that the D.C. district court had "totally ignored"

two of Edmond's and Lyles' constitutional tort theories, "Perjurer's

Liability"--which "asserts that someone who causes an indictment

and consequent arrest by perjuring himself or arranging for the submission of perjured testimony before the grand jury violates the

Fourth Amendment"--against Arnell and Green and"Detour-andDelay"--which "rests on an assertion that the manner in which an

arrest was accomplished was unlawful"--against Green and Krautheim. Id. at 419.2 The D.C. Circuit also ruled that the lower court had

_________________________________________________________________

1 Green was subsequently granted summary judgment on the Fair

Credit Reporting Act claim in January 1990. Defendants Spitz, Popkin,

and Wolf had been dismissed earlier for lack of personal jurisdiction.

Although Edmond and Lyles later moved to rename Spitz and Popkin,

the district court never explicitly ruled on that motion. See Edmond v.

United States Postal Serv. Gen. Counsel, 949 F.2d 415, 418-19 (D.C.

Cir. 1991).

2 The D.C. Circuit explained that while Edmond's and Lyles' Detourand-Delay theory "is arguably cognizable under the Fourth Amendment,

 5
given inadequate consideration to Edmond's Sixth Amendment

Interference-with-Counsel claim against Arnell, Green, and Krautheim, which was based on the allegation that Lyles' wrongful arrest

infringed upon Edmond's right to retain her as his counsel. Id. at 423-

24. In remanding those three constitutional tort theories, the court

noted that Edmond and Lyles had "conceded at oral argument that no

other constitutional claims and no statutory or common law claims

[had been] raised for review." Id. at 419.3

Following remand, the D.C. district court granted the Postal Service's motion to transfer Edmond's and Lyles' case to the District of

Maryland, where it was consolidated with their Maryland action. The

federal defendants filed a motion for partial dismissal of the complaint or, alternatively, for partial summary judgment, contending that

they enjoyed "absolute and/or qualified immunity" from the surviving

Bivens-type claims that had been transferred from the District of

Columbia. The district court denied the motion, and this interlocutory

appeal followed.

II

Appellants first contend that the district court erred in refusing to

dismiss the constitutional tort claims against federal prosecutor Arnell

on absolute immunity grounds. They maintain that Arnell enjoys

absolute immunity from the surviving Bivens-type claims against her

because the alleged conduct that underlies those claims qualifies as

"quasi-judicial." We agree.

_________________________________________________________________

. . . in a case of this sort, it may be better articulated under the Fifth

Amendment (because Edmond and Lyles already had been indicted at the

time of alleged wrongdoing)." Edmond, 949 F.2d at 423.

3 After the D.C. Circuit's opinion, therefore, Edmond and Lyles no longer had any constitutional tort claims against Postal Inspector Sparks.

Edmond's and Lyles' complaint does not allege that Sparks committed

or suborned perjury or that Sparks was even present at their arrest. The

D.C. Circuit's opinion also overturned the lower court's ruling that it

lacked personal jurisdiction over Arnell, Spitz, and Popkin and permitted

jurisdictional discovery against those defendants. Edmond, 949 F.2d at

425-26. The court of appeals did, however, affirm the district court's dismissal of Wolf. Id. at 427.

 6
In Bivens-type actions, as at common law, prosecutors enjoy absolute immunity for conduct "intimately associated with the judicial

phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409,

430 (1976).4 Absolute immunity prevents vexatious litigation from

deflecting prosecutors' energies and shading their judgment. Id. at

423. Because absolute immunity "contravenes the basic tenet that

individuals be held accountable for their wrongful conduct," however,

it is available only when its "`contributions . . . to effective government . . . outweigh the perhaps recurring harm to individual citizens.'"

Westfall v. Erwin, 484 U.S. 292, 295-96 (1988) (quoting Doe v.

McMillan, 412 U.S. 306, 320 (1973)). The focus of immunity analysis, therefore, is "on the conduct for which immunity is claimed, not

on the harm that the conduct may have caused or the question whether

it was lawful." Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993)

(emphasis added).

To determine whether Arnell is absolutely immune from Edmond's

Sixth Amendment claim that she sought Lyles' indictment to deny

Edmond his counsel of choice, we need look no farther than Imbler

v. Pachtman. In Imbler, the Supreme Court accorded absolute immunity to a prosecutor who was accused of maliciously and unlawfully

charging the plaintiff with murder. 424 U.S. at 415-16. While recognizing that "[a]t some point . . . the prosecutor no doubt functions as

an administrator rather than as an officer of the court" and that

"[d]rawing a proper line between these functions may present difficult

questions," the Imbler Court specified that absolute immunity protects

prosecutors' decisions "whether and when to prosecute." Id. at 431

n.33; see also Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981)

(recognizing that decision to initiate prosecution is immunized under

Imbler). Edmond's Sixth Amendment claim against Arnell for prosecuting Lyles, therefore, implicates conduct that Imbler expressly

found to be shielded by absolute immunity.

_________________________________________________________________

4 Although Imbler and several of the other immunity cases cited herein

were decided in the context of suits against state officers under 42 U.S.C.

§ 1983, their analysis extends to Bivens -type suits brought directly under

the Constitution against federal officials. See Butz v. Economou, 438

U.S. 478, 504 (1978); Ehrlich v. Giuliani, 910 F.2d 1220, 1222 n.2 (4th

Cir. 1990).

 7
The Supreme Court also held in Imbler that absolute immunity protected the prosecutor from allegations that he had knowingly used

perjured testimony and suppressed material evidence at the plaintiff's

trial. 424 U.S. at 431 ("[I]n presenting the State's case, the prosecutor

is immune . . ."). While the Court did not address whether prosecutors

are immune from civil suits for damages stemming from their presentation of the government's case before the grand jury, the rationale

behind Imbler persuades us that such immunity exists. The presentation of testimony and other evidence before an indicting grand jury

is a prosecutorial activity "intimately associated with the judicial

phase of the criminal process." Id. at 430; accord Morrison v. City of

Baton Rouge, 761 F.2d 242, 248 (5th Cir. 1985) (per curiam);

Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984); Gray v. Bell,

712 F.2d 490, 502 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1593

(1984). Accordingly, we hold that Arnell enjoys absolute immunity

from claims that she made false representations and suborned perjury

before the grand jury that indicted Edmond and Lyles.

The district court in this case focused on the claim that Arnell had

threatened to indict Edmond if he filed for bankruptcy. While

acknowledging that a prosecutor's pre-indictment conduct is not

investigatory per se, the court refused to hold "that an alleged threat

to obtain an indictment if an individual declares bankruptcy is `intimately associated with the judicial phase' as a matter of law."

Accordingly, it denied the federal defendants' motion to dismiss the

surviving Bivens-type claims against Arnell.

In declining to dismiss Arnell, the district court relied on a claim

that no longer remained in the present action. After the D.C. district

court had dismissed all of Edmond's and Lyles' Bivens-type claims,

the D.C. Circuit remanded three constitutional tort theories of liability, only two of which apply to Arnell: Perjurer's Liability and

Interference-with-Counsel. Because Arnell's alleged threat to indict

Edmond was not part of either of those claims, the district court erred

in considering arguments on it and in refusing to dismiss the claims

against Arnell. In rejecting the Threat-to-Indict claim on the basis that

it was no longer part of this action, we express no opinion on whether

Arnell's alleged threat to indict Edmond might support a viable constitutional claim or whether Arnell's absolute immunity would shield

her from such a claim.

 8
III

We also agree with Appellants that the district court erred in failing

to dismiss the Perjurer's Liability claim against Green for his allegedly false testimony before the federal grand jury that indicted

Edmond and Lyles.

In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme Court

held that government officials who testify at criminal trials are absolutely immune from damages liability based on their testimony. The

Court explained that absolute immunity for testimony in judicial proceedings had been "well established" at common law before the

enactment of 42 U.S.C. § 1983 to prevent witnesses from engaging in

"self-censorship" by refusing to testify or, after taking the stand, by

distorting their testimony to reduce the possibility of subsequent liability. Id. at 330-33. Granting immunity to official witnesses also prevents interference with the performance of their public duties by

avoiding costly and time-consuming litigation. Id. at 343-44.

Because the reasoning behind Briscoe is equally applicable to government officials' grand jury testimony, we hold that Green enjoys

absolute immunity from the Perjurer's Liability claim against him

based on his testimony before the grand jury. Our holding follows a

fortiori from our decisions in Mangold v. Analytic Services, Inc., No.

94-1307, slip op. at 7-13 (4th Cir. Mar. 12, 1996) (applying absolute

immunity to government contractor for statements made to government investigators during official investigation), and Holmes v. Eddy,

341 F.2d 477, 480 (4th Cir.) (per curiam) (applying absolute immunity to witness for statements made to SEC during SEC investigation), cert. denied, 382 U.S. 892 (1965)). And, in extending absolute

immunity to government witnesses for their grand jury testimony, we

join the majority of circuits that have addressed the issue. See San

Filippo v. U.S. Trust Co., 737 F.2d 246, 254 (2d Cir. 1984), cert.

denied, 470 U.S. 1035 (1985); Macko v. Byron , 760 F.2d 95, 97 (6th

Cir. 1985) (per curiam); Kincaid v. Eberle, 712 F.2d 1023, 1023-24

(7th Cir.) (per curiam), cert. denied, 464 U.S. 1018 (1983); Anthony

v. Baker, 955 F.2d 1395, 1400-01 (10th Cir. 1992); Strength v.

Hubert, 854 F.2d 421, 423-25 (11th Cir. 1988) (per curiam); cf.

Williams v. Hepting, 844 F.2d 138, 141-43 (3d Cir.) (immunizing testimony given in adversarial pretrial proceeding), cert. denied, 488

 9
U.S. 851 (1988); Holt v. Castaneda, 832 F.2d 123, 124-27 (9th Cir.

1987) (same), cert. denied, 485 U.S. 979 (1988); Briggs v. Goodwin,

712 F.2d 1444, 1448-49 (D.C. Cir. 1983) (immunizing sworn statement made at hearing on motion during grand jury phase of investigation), cert. denied, 464 U.S. 1040 (1984); but see Wheeler v. Cosden

Oil and Chem. Co., 734 F.2d 254, 261 n.16, modified on other

grounds, 744 F.2d 1131 (5th Cir. 1984).

IV

Finally, Appellants contend that the district court erred in refusing

to dismiss, on the basis of qualified immunity, the Detour-and-Delay

and Interference-with-Counsel claims against Krautheim and Green.5

They argue that neither of those claims allege violations of rights that

were clearly established at the time of Krautheim's and Green's

alleged conduct. Again, we agree.

To survive summary judgment on qualified immunity grounds, a

constitutional tort claim against a federal law enforcement official

must rest on a violation not only of currently applicable federal law,

but also of federal law that was "clearly established" at the time the

alleged conduct occurred. Harlow v. Fitzgerald , 457 U.S. 800, 818

(1982). Qualified immunity provides law enforcement officials with

"the necessary latitude to pursue their investigations without having

to anticipate, on the pain of civil liability, future refinements or clarifications of constitutional law." Tarantino v. Baker, 825 F.2d 772,

775 (4th Cir. 1987).

To determine whether a specific federal right was clearly established, we focus "not upon the right at its most general or abstract

level, but at the level of its application to the specific conduct being

challenged." Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992).

Qualified immunity thus protects "all but the plainly incompetent or

those who knowingly violate the law." Malley v. Briggs, 475 U.S.

335, 341 (1986).

_________________________________________________________________

5 Because we conclude that Arnell is absolutely immune from all of the

constitutional tort claims against her, we need not address Appellants'

alternative argument that she enjoys qualified immunity from those

claims.

 10
Edmond and Lyles had the burden of establishing a"prima facie

case of [Appellants'] knowledge of impropriety, actual or constructive." Krohn v. United States, 742 F.2d 24, 31 (1st Cir. 1984). Yet

they have failed to provide any authority indicating that their Detourand-Delay and Interference-with-Counsel claims implicate constitutional rights that were clearly established at the time of Appellants'

alleged conduct.

The Detour-and-Delay claim--which appears to have been first

articulated, not by Edmond and Lyles, but by Judge Edwards in the

D.C. Circuit's opinion, see Edmond, 949 F.2d at 419 ("The second

theory, which might be called Detour-and-Delay, rests on an assertion

that the manner in which an arrest was accomplished was unlawful")

--is based on the post-arrest procedures employed by Postal Inspectors Krautheim and Green. Edmond and Lyles contend that after their

arrest, the postal inspectors transported them for questioning, fingerprinting, and booking to the Postal Inspection Division Headquarters

in Washington, D.C., and then delivered them to the U.S. Marshal in

Baltimore, where they were held for nine hours before receiving a bail

hearing. We have found no legal support for the proposition that these

allegations make out a violation of a clearly established constitutional

right, and neither the D.C. Circuit nor counsel in this case have provided any.

The same is true for Edmond's and Lyles' Interference-withCounsel claim. They contend that Arnell, Krautheim, and Green

denied Edmond's right to the counsel of his choice by seeking Lyles'

indictment, even though the federal grand jury determined that there

was probable cause to charge her. Again, we can find no authority for

the theory that the government improperly interferes with the constitutional right to counsel of an attorney's clients by seeking or obtaining that attorney's indictment.

Because Edmond's and Lyles' Detour-and-Delay and Interferencewith-Counsel claims assert constitutional rights that were not, and are

not, clearly established, the district court erred in declining to afford

Green and Krautheim qualified immunity from the surviving constitutional tort claims against them.

 11
V

Accordingly, we reverse and remand this case with the direction to

the district court to dismiss all of Edmond's and Lyles' surviving

Bivens-type claims.6

REVERSED AND REMANDED

_________________________________________________________________

6 In light of our ruling that the district court should have dismissed all

of Edmond's and Lyles' surviving constitutional tort claims, we do not

reach Appellants' argument that the court erred in declining to rule on

their motion for summary judgment on the ground that they had refused

to permit discovery.

 12