Justia Federal District Court Opinions

This case raises a difficult question concerning the precise scope of the absolute prosecutorial immunity afforded by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Plaintiffs-appellees brought in the District Court a civil action in tort grounded upon the Constitution, alleging injury by reason of defendant-appellant's assertedly false testimony in a hearing held in connection with a grand jury investigation of appellees' activities as members of an antiwar organization. Appellant moved to dismiss on the ground that he enjoyed absolute immunity from any damage action based upon his conduct while acting in his official capacity as a special federal prosecutor. The District Court denied this motion, and we affirm.

* Both the facts alleged in appellees' complaint and the procedural posture of this appeal are important to our decision of it. We take appellees' allegations to be true, as we are bound to do upon review of the District Court's pretrial disposition of a motion to dismiss.

On July 7, 1972, appellant Goodwin, an attorney with the Internal Security Division of the United States Department of Justice, was appointed to serve as a Special Attorney for the investigation and prosecution of certain federal crimes which had allegedly occurred in the Northern District of Florida. Goodwin's letter of appointment was vague in its delineation of Goodwin's duties thereunder. It stated that the Department of Justice was "informed that various persons (had) violated . . . the (federal) anti-riot laws, Title XI of the Organized Crime Control Act of 1970 (dealing with the manufacture, sale, and transportation of explosives), (and the) conspiracy . . . and other Federal criminal statutes." Goodwin was instructed "to assist in the trial of the case or cases growing out of the transactions . . . mentioned in which the Government is interested."

On the day of Goodwin's appointment, subpoenas were served upon more than twenty members of a group known as the Vietnam Veterans Against the War/Winter Soldier Organization (VVAW/WSO). Some of the persons subpoenaed were in Miami, preparing for an antiwar march scheduled to coincide with the 1972 Democratic National Convention, which met from July 10 to July 13, 1972. Others were located in Texas, Arkansas, Louisiana, and Washington, D. C. All individuals subpoenaed were ordered to appear before a federal grand jury in Tallahassee, Florida, three days after service of the subpoenas, on the morning of July 10, 1972. Among those persons so subpoenaed were nine of the ten appellees in this case. (Appellee Briggs was not subpoenaed until a month later.)

Considerable confusion attended the commencement of the grand jury proceeding. Though all were members of the same organization, many of those subpoenaed had not known each other previously. Attorneys hastily retained to represent appellees had little time to consult with their clients before the grand jury began its inquiries. Recurring rumors of police and FBI infiltration of the VVAW/WSO prompted concern that one or more informants might be present among those who sought legal advice prior to their grand jury appearances. This prompted counsel to file a motion with the District Court in Tallahassee to direct Goodwin and his associates to disclose any agents or informers among those subpoenaed. The District Court's initial response was to ask counsel for a list of the witnesses in question and their counsel. This was done in the afternoon of July 12 by an oral submission on the record in open court of a list of potential grand jury witnesses (including one Emerson Poe) and their respective attorneys. The following morning the motion was taken up in open court. As movants' counsel was stating his belief that Goodwin should file an affidavit supplying the information requested by the motion, he was interrupted by the court's peremptory direction to Goodwin to take the witness stand and be sworn. The transcript shows that the court then asked Goodwin one question:

THE COURT: Mr. Goodwin, are any of witnesses represented by counsel agents or informants of the United States of America?

THE WITNESS: No, Your Honor.

THE COURT: You can step down.

(Witness excused.)

To counsel's immediately succeeding question, "Your Honor, may we be permitted to question Mr. Goodwin on this?," the court denied such permission.

None of the subpoenaed VVAW members actually testified during the four-day grand jury proceeding. Indeed, two appellees (Beverly and Jennings), along with two other VVAW members not parties to this litigation, were imprisoned for contempt, when they persisted in their refusal to testify after grants of use immunity.¹ An indictment was returned on the evening of July 13, 1972 charging six appellees (not including Beverly and Jennings) with a variety of crimes centering around an alleged conspiracy to unlawfully disrupt the 1972 Republican National Convention.2

The Government's investigation of VVAW activity continued, and on August 7, 1972, appellee Briggs was subpoenaed to appear before the Tallahassee grand jury. Slightly more than two months later, on October 18, 1972, a superseding indictment was filed, adding appellee Briggs as a co-conspirator, and appellee Michelson as an aider and abettor of the conspiracy. Trial of the eight appellees covered by this new indictment commenced on July 31, 1973. On August 17, 1973, appellees received, pursuant to the Jencks Act, 18 U.S.C. § 3500 (1970), a series of written materials which revealed that Emerson Poe had been functioning as a paid FBI informant since January, 1972; and Poe testified, over objection, as a prosecution witness at appellees' criminal trial. Appellees allege that, prior to the July, 1972 grand jury proceeding, Poe had on several occasions relayed to federal investigators the substance of his conversations with appellee Camil, and that Poe's reporting did not cease with the return of indictments in 1972; rather, it served as an ongoing source of information concerning appellees' criminal defense strategy. Despite this disadvantage, appellees were acquitted of all criminal charges on August 31, 1973.

The complaint in the civil action was filed in the District Court for the District of Columbia on May 28, 1974. It alleged, inter alia, injury arising from appellant's representation to the Florida court that no informants were among those individuals ordered to appear before the grand jury.³ Relying upon Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), appellees sought declaratory relief, damages, and the appointment of a special prosecutor to explore the alleged official wrongdoing. On July 22, 1974, appellant moved to dismiss on the ground that, as stated in his brief, "as a Special Attorney of the United States Department of Justice, he (is), pursuant to the doctrine of quasi-judicial immunity, absolutely immune from any damage action based upon alleged misconduct while acting in such a capacity." This motion was denied on November 20, 1974. 384 F.Supp. 1228.

On December 13, 1974, appellant filed a fresh motion to dismiss, urging that "as a witness in a Federal court he is absolutely immune from any damage action or civil suit based upon his alleged false testimony in such judicial proceeding." Alternatively, appellant asked the District Court to certify "the issue of immunity" for interlocutory appeal in accordance with the provisions of 28 U.S.C. § 1292(b) (1970). In an order dated March 4, 1975, the District Court denied appellant's motion to dismiss on the ground of witness immunity, and also expressly refused (what it interpreted as) appellant's request to certify the issue of witness immunity for interlocutory appeal under § 1292(b). However, the District Court did agree to certify the issue of quasi-judicial (or prosecutorial) immunity for such appeal, and included in its March 4 order a declaration that the "Order of November 20, 1974 . . . be and hereby is certified for interlocutory appeal . . . pursuant to 28 U.S.C. § 1292(b)." On May 27, 1975, a motions panel of this court granted appellant leave to appeal pursuant to § 1292(b). The resultant interlocutory challenge to the District Court's failure to dismiss the complaint is the matter now confronting us.⁴

II

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), the Supreme Court declared that

it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own conviction, without apprehension of personal consequences to himself.

At 347 (emphasis added). Subsequent decisions have consistently adhered, either explicitly or implicitly, to the proposition that official immunity, whether absolute or qualified, extends only so far as the affected government official's authority. See, e. g., Scheuer v. Rhodes, 416 U.S. 232, 250, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Apton v. Wilson, 165 U.S.App.D.C. 22, 29-35, 506 F.2d 83, 90-95 (1974). A government employee is not to be protected merely by virtue of his official position for conduct undertaken outside the scope of his authority. Apparently relying upon these well-settled rules, the District Court in this case reasoned that: (1) Goodwin allegedly perjured himself; (2) perjury is never within a prosecutor's authority; (3) Goodwin cannot be immune for activity wholly outside his authority.⁵

The difficulty with this approach is that any allegation that an official, acting under color of law, has deprived someone of his rights necessarily implies that, in the particular case, the official exceeded his authority. Such logic would completely abrogate the doctrine of immunity.⁶ Rather, in heeding a district judge's directive to answer a question relating to his official duties, appellant performed the kind of act not "manifestly or palpably beyond his authority," but rather "having more or less connection with the general matters committed by law to his control or supervision." Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896); see, e. g., Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1343-45 (2d Cir. 1972) (on remand); Cooper v. O'Connor, 69 App.D.C. 100, 104, 99 F.2d 135, 139, cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938); note 6 supra. The question, then, is whether the immunity to be accorded appellant is qualified or absolute.⁷

III

Finding that appellant's alleged behavior in this case falls outside the confines of those prosecutorial activities for which Imbler prescribed an absolute prosecutorial immunity, we hold that appellant here is entitled only to a qualified immunity, that is to say, his protection from liability depends upon a showing that he entertained a good-faith, reasonable belief in the truth of his response to the federal district judge in Florida. In reaching this result, we rely on a series of federal decisions distinguishing between a prosecutor's role as advocate, on the one hand, and his function as an administrative or investigative officer, on the other. We further rely upon the Supreme Court's recognition of this distinction in Imbler, and its express disclaimer of any intention to extend the sway of that case beyond those prosecutorial activities "intimately associated with the judicial phase of the criminal process." 424 U.S. at 430, 96 S.Ct. at 995.

The alleged prosecutorial misconduct before the Supreme Court in Imbler was quite different from that attributed to appellant in this case, and much more typical of the abuses which have commonly inspired civil actions against prosecutors. Petitioner in Imbler was convicted of first-degree felony murder, and his conviction was unanimously affirmed by the California Supreme Court. Thereafter the local district attorney who had prosecuted Imbler voluntarily wrote to the Governor, announcing the discovery of new evidence, some of which tended to corroborate Imbler's alibi defense, and some of which tended to cast doubt upon the credibility of the state's chief identification witness. Though all the new evidence taken together did not conclusively establish Imbler's innocence, the district attorney believed that considerations of fairness compelled disclosure. On the basis of the new information thus revealed, Imbler filed a state habeas corpus petition. While Imbler's brief in support of this petition praised the prosecutor's post-trial devotion to duty, it also charged him with knowing use of false testimony and suppression of material evidence. The habeas petition was unanimously rejected by the California Supreme Court.

Nearly five years later, Imbler raised essentially the same contentions in a federal habeas petition. Rendering its decision upon the record without a hearing, the federal district court found several instances of prosecutorial misconduct at trial and accordingly granted habeas relief. The Ninth Circuit affirmed, and when California chose not to retry Imbler, he was released. Subsequently, over eleven years after commission of the offense for which he had been imprisoned, Imbler filed a civil rights suit under 42 U.S.C. § 1983,⁸ claiming, inter alia, that the local prosecutor had intentionally allowed the state's leading identification witness to testify falsely, had permitted the suppression of fingerprint evidence favorable to Imbler, and had used at trial a police artist's sketch allegedly altered to resemble Imbler more closely. The complaint also maintained that the district attorney's decision to proceed with the prosecution was improper in light of an earlier lie detector test which had allegedly cleared Imbler. The federal District Court granted a motion to dismiss on the ground of prosecutorial immunity, and the Ninth Circuit affirmed by a divided panel.500 F.2d 1301 (1974). The Supreme Court granted certiorari and affirmed.424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Justice Powell's opinion for the Court recognized that the doctrine of prosecutorial immunity finds both its common law origins and its primary application in the malicious prosecution context. "The function of a prosecutor that most often invites a common law tort action is his decision to initiate a prosecution, as this may lead to a suit for malicious prosecution if the State's case misfires." Id. at 421, 96 S.Ct. at 990. Still focusing on common law precedents, the Court outlined the shared rationale supporting judicial, prosecutorial, and grand juror immunity:

The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.

Id. at 422-23, 96 S.Ct. at 991 (footnote omitted). With respect to these potential dangers, the Court could discern no distinction between § 1983 actions and common law malicious prosecution suits. "If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common law suits for malicious prosecution." Id. at 424, 96 S.Ct. at 992.

Throughout the Court's opinion, the concentration on claims likely to arise from prosecutorial behavior at or immediately before trial is manifest. "A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court." Id. (emphasis added). Describing the perils of a contrary result in Imbler, the Court observed that

suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness' falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and ultimately in every case the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a § 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials.

Id. at 425, 96 S.Ct. at 992 (footnote omitted). All of the worrisome issues thus enumerated by the Court involve possible prosecutorial errors of commission or omission in connection with the trial of a criminal case. This point was further emphasized a bit later in the Imbler opinion when the Court defended its decision in terms of the effective functioning of the criminal justice system: "Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence." Id. at 426, 96 S.Ct. at 993 (footnote omitted; emphasis added). In conclusion, the Court explicitly "delineate(d) the boundaries" of its holding.

The purpose of the Court of Appeals' focus upon the functional nature of the activities rather than respondent's status (as a prosecutor) was to distinguish and leave standing those cases, in its Circuit and in some others, which hold that a prosecutor engaged in certain investigative activities enjoys not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's. We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.

Id. at 430-31, 96 S.Ct. at 995 (emphasis added) (citation and footnotes omitted).

Lest his stress on the advocacy function suggest that the Court was contemplating a mechanical immunity test based solely upon whether alleged prosecutorial misconduct occurred in court during the course of a trial, Justice Powell added a few words of elaboration in the margin.

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required, constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

Id. at 431 n. 33, 96 S.Ct. at 995. Thus, the Court, while acknowledging the potential factual problems of future cases, reaffirmed its fundamental reliance on the advocate's role as the source of the absolute prosecutorial immunity applied in Imbler. Although the passage quoted above makes clear that a prosecutor's advocacy function does extend beyond the confines of the trial courtroom, the examples of such preliminary advocate activities provided by the Supreme Court are instructive for their common focus on a particular criminal proceeding. By the plain import of the Court's remarks, absolute immunity under Imbler extends only so far as necessary to protect a prosecutor's decision with respect to the initiation and conduct of particular cases. Imbler does not, in our reading, immunize prosecutors for any and all measures they may undertake in the course of wide-ranging law enforcement investigations or general fact-finding expeditions.

As the Supreme Court observed, the Ninth Circuit's affirmance in Imbler deliberately left undisturbed earlier decisions in that court and others which had held that prosecutors are entitled to only a qualified immunity for conduct performed in an investigative or administrative capacity. See Apton v. Wilson, 165 U.S.App.D.C. 22, 30, 32-33, 506 F.2d 83, 91, 93-94 (1974); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602, 608-09 (7th Cir. 1973) (Stevens, J.), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Littleton v. Berbling, 468 F.2d 389, 410-11 (7th Cir. 1972), cert. denied, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 97 (1974); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir. 1965); Tomko v. Lees, 416 F.Supp. 1137, 1139 (W.D.Pa.1976), and Burkhart v. Saxbe, 397 F.Supp. 499, 503 n.4 (E.D.Pa.1975). Cf. Madison v. Purdy, 410 F.2d 99, 101-02 (5th Cir. 1969); Lewis v. Brautigam, 227 F.2d 124, 128-29 (5th Cir. 1955), and Ames v. Vavreck, 356 F.Supp. 931, 936-37 (D.Minn.1973) (all refusing to apply absolute immunity to arguably "investigative" activities, although doing so on the ground that the prosecutor's alleged behavior may have been "outside the scope of his jurisdiction;" only Ames refers specifically to prosecutors acting as investigators). See also Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) (noting the Imbler distinction between advocacy and investigation); Tyler v. Witkowski, 511 F.2d 449, 451 (7th Cir. 1975) (applying absolute immunity in a § 1983 false imprisonment suit, but citing Hampton, and explicitly acknowledging that the conduct assailed was not investigatory); Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974), cert. denied, 424 U.S. 975, 96 S.Ct. 1480, 47 L.Ed.2d 745 (1976) (apparently accepting the proposition that absolute immunity will not apply to prosecutors acting in an investigatory capacity); Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973) (specifically reserving "the question of the liability of a prosecutor acting within an investigatory capacity"); Wilhelm v. Turner, 431 F.2d 177, 182-183 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971) (recognizing that earlier cases had drawn the advocacy-investigation distinction, but finding it unnecessary to rule on the matter, since, in any event, affidavits established that the State Attorney General and his assistant were "acting in good faith and had probable cause for their actions"); Fanale v. Sheehy, 385 F.2d 866, 869 (2d Cir. 1967) (Feinberg, J. and Waterman, J., though concurring in a holding of immunity, agree that "there would be some situations . . . in which even 'official' acts of a prosecuting officer should not be protected by absolute immunity from civil liability"); Bauers v. Heisel, 361 F.2d 581, 589-95 (3d Cir. 1966) (en banc ), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) (finding absolute immunity in an easy case where plaintiff attacked the prosecutor's choice of forum, but nevertheless provoking one concurrence which refused to reach the immunity issue, and a second concurrence and two dissents which took issue with the majority's sweeping description of a prosecutor's quasi-judicial immunity); and Harmon v. Superior Court, 329 F.2d 154, 155 (9th Cir. 1964) (commenting that the acts complained of were "quasi-judicial" acts, and therefore entitled to quasi-judicial immunity). But cf. Cambist Films, Inc. v. Duggan, 475 F.2d 887, 888-89 (3d Cir. 1973) (ambiguous per curiam in common law damage action arising out of illegal seizure allegedly ordered by local district attorney; seems to suggest that, even had the action been brought under § 1983, absolute immunity would apply to all prosecutorial behavior, regardless of character, unless defendant acted "in the clear absence of all jurisdiction").⁹

We find ourselves in general agreement with the common theory underlying the first group of decisions listed above. When a prosecutor is engaged in essentially investigative as opposed to advocatory activities, the considerations of public policy which necessitated a grant of absolute immunity in Imbler no longer control. Regardless of his official status, a prosecutor functioning primarily as an investigator should be accorded only the qualified immunity typically conferred on other investigative officers. The crucial inquiry concerns the nature of the official behavior challenged, not the identity or title of the officer responsible therefor. These sentiments were well-expressed by the Fourth Circuit in McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972):

The immunity of "quasi-judicial" officers such as prosecuting attorneys and parole board members derives, not from their formal association with the judicial process, but from the fact that they exercise a discretion similar to that exercised by judges. Like judges, they require the insulation of absolute immunity to assure the courageous exercise of their discretionary duties. Where an official is not called upon to exercise judicial or quasi-judicial discretion, courts have properly refused to extend to him the protection of absolute judicial immunity, regardless of any apparent relationship of his role to the judicial system.

456 F.2d at 3-4 (footnotes omitted).

Accepting as true the allegations of the complaint herein, as we must in the present posture of this case, we believe that appellant's false statement to the federal district court in Florida is properly characterized as an act of investigation rather than advocacy. To some extent, of course, assignment of a particular incident to one of several mutually exclusive abstract categories is likely to involve an element of arbitrariness, especially where the incident in question was clearly not envisioned by those who originally devised the classificatory scheme. But appellant's alleged perjury bears no relation whatever to the advocate's role as conceived by the Supreme Court in Imbler. The obligation to disclose, pursuant to judicial direction, the presence of Government informants among those subpoenaed to testify before the grand jury is entirely foreign to advocacy issues such as whether to initiate a prosecution or how to conduct a prosecution once begun. Such disclosure was, rather, an action required of appellant by the court in order to enable the court to deal with a possible defect in the conditions under which subpoena compulsions had been brought to bear in the grand jury investigation.

Application of only a qualified immunity in this case cannot possibly arouse the fears which animated the Supreme Court in Imbler, namely, that prosecutors will be adversely affected in the discharge of their public duties. The federal district court in Florida sought information about one aspect of the Government's investigation of the VVAW. Appellant allegedly provided the court with willfully false information about the matter, with the result that a Government informant remained in appellees' confidence for approximately a year longer than he otherwise would have. We can detect nothing even vaguely resembling advocacy in appellant's behavior. Indeed, even the language of appellant's own motion to dismiss in the District Court acknowledges that he was dispatched to Florida for the purpose of conducting an investigation. Though he asserts in conclusory fashion that his challenged action "fall(s) squarely within the exercise of the judicial function" (see Brief for Appellant at 23, 35 n.15), appellant cites absolutely no authority for the proposition that the statement of which appellees complain was in the nature of advocacy.

Appellant has referred us to over twenty cases which purportedly establish that "prosecutors enjoy absolute immunity for acts done in the performance of their official functions." Brief for Appellant at 18 & n. 9. We have examined all these decisions and numerous others of a similar nature, but find none of them determinative of the dispute now before us. The cases collected by appellant hold unanimously that a prosecutor is entitled to absolute immunity for his quasi-judicial activities. After Imbler, this point is incontestable. However, none of the precedents upon which appellant relies support his contention that the behavior at issue here falls within the scope of the absolute quasi-judicial immunity endorsed by the Supreme Court in Imbler. The vast majority of cases cited involve claims arising from prosecutorial acts which unquestionably qualify for immunity under Imbler, e. g., the decision to initiate a criminal prosecution or the orchestration of an ensuing criminal trial.¹⁰ The combined efforts of counsel and this court have failed to unearth a single prior occasion on which damages have been sought for misconduct like that alleged here.

We are aware that earlier cases in which prosecutorial behavior has been termed investigative have involved factual situations distinct from that currently before us.¹¹ Nevertheless, the dissimilarities between this case and those which have preceded it do not render the conduct at issue here any less investigative or any more advocatory. Appellant contends rather mechanically that because his alleged perjury occurred in a courtroom exchange, after a grand jury had been convened, the description "intimately associated with the judicial process" automatically fits. Our answer to this argument is two-fold.

First, the timing of prosecutorial action, by itself, is not dispositive of the immunity issue. The fact that a grand jury is about to hear testimony or has already begun to hear testimony does not imply that all subsequent prosecutorial activity is ipso facto advocacy, and not investigation. Justice Powell's penultimate footnote in Imbler established that the advocate's role could entail certain "actions preliminary to the initiation of a prosecution and actions apart from the courtroom." 424 U.S. at 431 n. 33, 96 S.Ct. at 995. This does not foreclose the fact that the investigative function may embrace some acts even when performed after the commencement of judicial proceedings. Attention must be focused on the behavior itself, and not solely on its timing. Appellant's statement to the court in Florida does not acquire the character of advocacy merely because it was made after the grand jury had met, rather than several days earlier.

Secondly, and completely independent of the timing point, we think that, in a real sense, this litigation concerns behavior more plainly investigative than that encountered in some of the earlier cases cited above. In Robichaud, for example, the crucial events took place only after the prosecutors' field of vision had already narrowed to one crime and one prospective defendant. A criminal complaint was filed, allegedly with malice and without probable cause, charging the sixteen-year old appellant with first degree murder. In due course, she was arrested, and, allegedly under the direction of the County Attorney and his deputy, police officials attempted to extract a confession from her through lengthy confinement in the "drunk tank" with adult female prisoners, a forced visit to the scene of the crime, and various species of deceit and intimidation. These latter features of appellant's § 1983 complaint prompted the Ninth Circuit's reference to investigative conduct by prosecutors.

Here, by contrast, appellant's primary task in Florida was to determine whether any violations of federal law properly attributable to the VVAW or its members had occurred. If any such federal crimes had been committed, Goodwin was to ascertain the precise nature of those crimes, and the identity of VVAW members to whom criminal liability might attach. The grand jury was to function in the first instance as an investigative tool, rather than in its more familiar guise as a deliberative body deciding whether to return indictments for specific crimes on the basis of evidence gathered and presented by a public prosecutor. The grand jury proceeding in this case was designed as a broad scale investigation into possible illegal activity by the VVAW or its members. The Fifth Circuit in Beverly characterized it as such by saying (at p. 735 of 468 F.2d) that "(t)he grand jury was investigating alleged plans of the VVAW to disrupt the Republican National Convention in Miami, Florida, to be held the week of August 21, in violation of various criminal statutes."

Several pieces of evidence may be adduced in support of this proposition. First, many more VVAW members were subpoenaed to appear before the grand jury than were ever indicted. Second, the indictments which the Government did obtain were returned despite the fact that none of the VVAW members subpoenaed actually testified. Third, appellee Briggs was subpoenaed a month after the original group of subpoenas was issued, and appellees Briggs and Michelson were indicted more than three months after appellant's investigation began. The ongoing character of the grand jury process in this case helps to convince us that appellant had embarked on what was fundamentally a fact-finding mission, and that his false statement to the court, if such it was, was intended to approve the prospects for that endeavor's success.

We mention one further reason for our conclusion that the absolute immunity contemplated by Imbler does not cover this case. As Judge Leventhal observed for this court in Apton, supra, absolute prosecutorial immunity for behavior "intimately associated with the judicial process" is "both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse." 165 U.S.App.D.C. at 32, 506 F.2d at 93. When prosecutorial activity is properly classifiable under the "quasi-judicial" rubric, "the circumstances typically provide alternative instruments of the judicial branch to check misconduct the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself." Id. 165 U.S.App.D.C. at 33, 506 F.2d at 94. In theory, of course, appellant faces both criminal and professional penalties for any misrepresentations he may have made to the federal district court in Florida. However, the passage of four and a half years without any apparent official inquiry, even by the court to which the seeming misstatement was made, into appellants' conduct in July, 1972 underscores the fact that such restraints on prosecutorial excesses are likely to remain theoretical only. The demonstrably negligible probability of official discipline thus detracts from the significance of the third safeguard enumerated in Apton.

Even were this not so, the first two potential checks suggested in Apton were totally absent here. As indicated above (see the discussion of Imbler following note 8 supra ), typical civil suits against prosecuting attorneys involve allegations of malicious prosecution, deliberate use of false testimony, or deliberate suppression of exculpatory evidence. In all these situations, jury discretion is brought to bear in evaluating the persuasiveness of the prosecution's presentation, and defense counsel enjoys the opportunity to employ a variety of procedural devices to challenge the accuracy of the Government's position and thereby to preserve the integrity of the truth-seeking enterprise. Here, no jury assessed the credibility of appellant's assertion that no Government informants were included among the subpoenaed VVAW members. In addition, appellees and their counsel were required to accept appellant's representation on faith. The court, which put the one and only question asked, did not explore the basis for appellant's denial that informants were present in appellees' camp, and appellees' effort to pursue the matter further through questioning was not permitted. Given, therefore, not only the character of appellant's statement as protective of the investigation so he proposed to conduct it, but also its peculiar insulation from probing examination and jury appraisal, we regard absolute immunity as inappropriate in this case. It may of course be true that appellant's answer to the court's question was made in perfect good faith, but that is a matter open to demonstration under qualified immunity.

IV

The dissent, stressing that the gravamen of appellees' complaint concerns an act committed on the witness stand, seeks to resolve the dispute before us by reference to the common law doctrine of witness immunity. The dissent asserts that "(i)t thus becomes necessary in these opinions to treat both prosecutorial and witness immunity." Whatever else may be said of this approach, it inevitably involves consideration of subjects neither briefed nor argued on this appeal. Presumably, appellant's failure to raise the witness immunity point on appeal is attributable to the District Court's refusal to certify that matter for immediate interlocutory appeal under 28 U.S.C. § 1292(b) (1970).¹² We address it only because the dissent treats it as dispositive.

Appellant's initial motion to dismiss, filed July 22, 1974, alleged lack of subject matter jurisdiction and absolute immunity from any suit based upon appellant's conduct "while acting in his official capacity . . . as a Special Attorney of the United States Department of Justice and Federal prosecutor" responsible for the VVAW investigation and grand jury proceeding. That motion was denied by the District Court's order of November 20, 1974. Nearly a month later, appellant filed a new motion to dismiss grounded on witness immunity. In an order issued March 4, 1975, the District Court (1) denied the second motion to dismiss, (2) certified the November 20 order for interlocutory appeal under § 1292(b), and (3) expressly refused to certify for that purpose the March 4 order involving witness immunity.

In enacting § 1292(b), Congress vested in the district judge power to determine which orders involve controlling questions of law appropriate for interlocutory review. In light of this statutory scheme, it is not surprising that government counsel representing appellant apparently believed that the witness immunity issue was not before this court, but rather was preserved for ultimate review of a final judgment in this law suit. Since § 1292(b) provides in terms for appeals from orders, as distinct from the controlling questions of law identified by the district judge, it has been suggested that, when a particular order is the subject of an interlocutory appeal under § 1292(b), all other issues relevant to the result reached by that order should be open for appellate consideration.¹³ This position is not yet firmly established in reported decisions. Moreover, even if we were to accept it without reservation, its force would be substantially diminished in the present context where the order certified for appeal is a separate order from the one denying the witness immunity motion.

We do not pursue the matter for the reason that a majority of the panel are of the view that, given the desirability of avoiding further proceedings in the trial court if appellant is in fact shielded by an absolute immunity of any kind, we may, and should, address the witness immunity point pursuant to what the Supreme Court has recently termed "the so-called 'collateral order' exception to the final judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) . . .," Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (pre-trial order denying motion to dismiss indictment on double jeopardy grounds appealable immediately). Since appellant's claim of absolute witness immunity can be said to be collateral to, and separate from, the issue of his liability to be explored at trial, and since absolute immunity is designed to protect against amenability to suit itself as well as to a verdict of liability at trial, the theoretical foundations of the collateral order doctrine, at least as they are characterized in Abney, may be thought to be present here.¹⁴

We turn to the merits without the customary benefit of briefing and argument by the parties, but we doubt that appellant would seriously undertake to maintain that he was an ordinary witness. Although he was called upon by the court to make a representation of fact in a courtroom after being sworn, that act did not involve giving testimonial evidence in the usual sense at a trial or even before grand jurors. He was directed to do so by the court in order promptly to get a representation from counsel on the record under oath, and thereby to lay to rest the legitimate claim of appellees that they were entitled to know, before submitting to the compulsion of the subpoenas, whether their number included Government undercover agents.

That claim raised a question going to the very integrity of the manner in which the grand jury proceeding was being conducted. Had appellant volunteered to represent as an officer of the court that no informers were involved, and had the parties been content with that, there would be no issue as to witness immunity worthy of the name. The difference between the falsity of such a nontestimonial representation, on the one hand, and the technical consequence of perjury attached to a statement under oath, on the other, is not at the heart of the immunity issue in this appeal. The question is whether appellant is wholly immune from a civil suit based upon his utterance of an allegedly false statement in the context of countering a challenge to the manner in which he was conducting a grand jury inquiry.

The statement assailed here was prompted by, and directly incidental to, appellant's status as a prosecutor managing and administering an investigation. Appellant's unqualified negative response to the district judge's plain and abrupt question was essential to the forward progress of the grand jury investigation, for which appellant as a federal prosecutor had been charged by his superiors with the responsibility. To the extent that appellant's one word answer is viewed as a testimonial act, it was one occasioned by, and critical to, appellant's discharge of that responsibility.

The dissent thus is unrealistic in treating appellant not as a prosecutor managing and directing an investigation but rather as an ordinary witness summoned to give his evidence in a legal proceeding. It is obvious from the transcript that the court did not consider appellant to be an ordinary witness. It ordered him to take the stand; it asked him one question; and it forthwith excused him. Indeed, when appellees' counsel sought leave to cross-examine, the court denied it. The policies underlying the common law doctrine of witness immunity are tangential, and essentially irrelevant, to the question of whether appellant a prosecutor functioning in an investigative context should be accorded complete invulnerability to suit for the consequences of an act performed in that capacity.

Our holding on this aspect of the appeal rests on the foregoing considerations, and it is, accordingly, of a piece with what we have said earlier in this opinion with respect to the prosecutorial immunity issue certified by the District Court. If we have misconceived the precise scope of Imbler, then our finding of qualified, as distinct from absolute, immunity on the facts of this case will fall. But that result, in our submission, will not be because appellant's answer to the question put to him by the court was given from the witness stand. It will be because that act will be deemed, even under the special circumstances of this case, not to come within the prosecutorial administrative and investigative functions reserved by Imbler.

Having thus made clear that in our view this record in truth raised no issue of witness immunity to be certified by the District Court as "a controlling question of law as to which there is substantial ground for difference of opinion," and that the resolution of this uncertified question is encompassed in our holding on the certified question, it remains appropriate to append our reservations about the indiscriminate claims made by the dissent for common law witness immunity.

First, the immunity of witnesses at common law was not as monolithic as the dissent might suggest. The comprehensive rule announced by Lord Mansfield in 1772 and reproduced in the dissent was not borrowed in its entirety by the majority of American jurisdictions. While most American courts do speak of an absolute witness immunity, they commonly temper the reach of their decisions by imposing a supplementary requirement of pertinency or relevancy. See, e. g., Myers v. Hodges, 53 Fla. 197, 208-09, 44 So. 357, 361 (1907). ("In the United States, according to the overwhelming weight of authority, in order that defamatory words, published by parties, counsel, or witnesses in the due course of judicial procedure, may be absolutely privileged, they must be connected with or relevant or material to the cause in hand or subject of inquiry"); McDavitt v. Boyer, 169 Ill. 475, 48 N.E. 317 (1897); Barnes v. McCrate, 32 Me. 442 (1851), and Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607 (1902).

We cite these authorities not to imply that appellant's answer in this case was not responsive to the judge's question, but only to indicate that the more extreme English rule espoused by Lord Mansfield was not wholeheartedly embraced by most American jurisdictions. Furthermore, despite the broad and dogmatic language employed by many American courts, one does encounter occasional common law opinions which cast some doubt upon the extent to which absolute witness immunity protects knowingly false testimony. See, e. g., Liles v. Gaster, 42 Ohio St. 631, 636 (1885) ("What (a witness') liability . . . may be, if he was guilty of intentional falsehood, and actual malice, we need not here determine, as the case made does not require it").

We observe further that the dissent does not refer us to cases which establish the existence and scope of witness immunity under federal common law.¹⁵ As noted earlier (see note 8 supra ), even where common law torts are alleged, the immunity to be conferred on federal officials is governed by a federal standard, which need not be identical to the standard applied in a particular state or even in the majority of states.

Finally, it is far from clear that, as the dissent asserts, a witness should enjoy the same measure of immunity, regardless of whether the wrong of which he is accused rises to constitutional dimension. Whatever the precise nature of the immunity accorded to witnesses at common law, that immunity applies without distinction to any individual serving as a witness in a judicial proceeding. On the other hand, where a constitutional infringement is alleged, the defendant-witness will almost invariably be a Government official. (At minimum, the "under color of law" requirement will assure some direct government involvement in the challenged testimony.) This is a crucial difference. Policy considerations counselling the insulation of private citizens from civil liability arising from their performance as witnesses do not apply with equal force when a complaint charges that constitutional rights have been violated by a public employee operating from the witness stand.

The unique importance of constitutional rights hardly needs restatement. Both Congress and the Supreme Court have created special causes of action to provide a remedy for official misconduct which infringes constitutionally protected interests. Given this notably solicitous attitude toward the effectuation of constitutional guarantees, it can be asserted with both reason and authority that absolute immunity is not to be extended to the constitutional tort context absent the most compelling justification.

Indeed, in Scheuer v. Rhodes, supra, the Supreme Court, confronted with two of its own decisions which accorded federal executive officials absolute immunity from common law damage actions, nevertheless granted only a qualified immunity to high-level state executive officials sued for constitutional violations under § 1983. See 416 U.S. at 247, 94 S.Ct. 1683. Extensive discussion of this point may be found in Judge Celebrezze's dissent from the Sixth Circuit's opinion in the same case, Krause v. Rhodes, 471 F.2d 430, 453-59 (6th Cir. 1972), rev'd, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1159 n. 12 (4th Cir. 1974); Norton v. McShane, 332 F.2d 855, 860-61 (5th Cir. 1964); Burkhart v. Saxbe, 397 F.Supp. 499, 502 n. 3 (E.D.Pa.1975); and Note, Damages for Federal Employment Discrimination: Section 1981 and Qualified Executive Immunity, 85 Yale L.J. 517-518 & n.54 (1976). But see Brawer v. Horowitz, 535 F.2d 830, 836-37 (3d Cir. 1976) (witness immunity issue only reached after court assumed that private citizen testifying for federal government in criminal prosecution would be amenable to Bivens -type suit seeking damages for deprivation of constitutional rights by a federal official ); Fidtler v. Rundle, 497 F.2d 794, 798 (3d Cir. 1974); Johnson v. Alldredge, 488 F.2d 820, 826-27 (3d Cir. 1973), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974); Bauers v. Heisel, 361 F.2d 581, 586-91 (3d Cir. 1965) (en banc ), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967), and Hahn v. Sargent, 388 F.Supp. 445, 452 (D.Mass.), aff'd on other grounds, 523 F.2d 461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

Even where the Supreme Court has followed the common law example in determining that absolute immunity is appropriate in a constitutional tort setting, the Court has explicitly recognized that it was in no way bound by precedent to reach the result it did. See, e. g., Imbler, supra, 424 U.S. at 424, 96 S.Ct. 984; Pierson, supra, 386 U.S. at 554-55, 87 S.Ct. 1213; and Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

Since, for the reasons outlined above, we do not believe that appellant is protected by the absolute prosecutorial immunity described in Imbler, and since we are unable to join in the dissent's interpretation of the impact of witness immunity on this case, the November 20, 1974 order of the District Court denying appellant's motion to dismiss is affirmed.

It is so ordered.

WILKEY, Circuit Judge, dissenting:*

We are confronted at the outset by the inescapable facts that defendant Goodwin is a prosecutor and that the indictment made the subject of this civil suit for damages occurred in the courtroom, the native habitat of judges, jurors, prosecutors and witnesses all of whom having, and from time immemorial having had, absolute immunity from civil suit as essential participants in the judicial process. The normal role of the Prosecutor in the courtroom is as Advocate; his actions are those of a spokesman advocating the cause of his client, the government, state or federal. In this particular case Goodwin perhaps was, for a moment at least, also cast in another role, that of Witness ; his action was to answer a specific question of the court. The plaintiff claims that answer was false, and now sues Goodwin for perjury. Perjury is the act of testifying falsely. It is not the act of "administering" or "investigating" anything.

The majority painstakingly reviews the recent decisions on prosecutorial immunity, particularly Mr. Justice Powell's opinion for the Supreme Court in Imbler v. Pachtman,1 which accord absolute immunity to the prosecutor, not because of his "official status,"2 but because of "the nature of the official behavior"3 in his role essential to the judicial process. The cases cited universally hold that the prosecutor while functioning as an advocate (and thus as part of the judicial process) is entitled to absolute immunity; they also either hold, or leave open the question as to exactly where the line is to be drawn (as Justice Powell did in Imbler ),4 that "administrative" or "investigative" duties of the prosecutor are entitled only to a qualified immunity. The majority opinion agrees.5

Thus the majority finds it necessary to take Goodwin completely outside the role of prosecutor connected with the judicial function. In the face of the undeniable facts of this case that Goodwin was in the courtroom, before a sitting judge, appearing as counsel of record in a judicial proceeding, actively performing those duties associated with trial advocacy, when he answered a question from the trial judge the majority finds that his answer to the question was not, in the language of Imbler, an "integral part of the judicial process."6 The starting point for the majority's analysis is the statement in Imbler that "We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom."7 The Supreme Court goes on to describe what these actions are, and concludes, "At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court."8

The Court in Imbler thus differentiated between the prosecutor functioning "as an administrator" and "as an officer of the court." On the former the Court reserved decision as to the immunity accorded; on the latter, when the prosecutor is functioning "as an officer of the court," the Supreme Court unequivocally held the prosecutor has absolute immunity.9 On the facts of Goodwin's case, can the majority deny that he was functioning "as an officer of the court"? Goodwin was in the courtroom before the U.S. District Judge as lead counsel for the United States. Could there be a more classic role "as an officer of the court"?

This points up the majority's startling weakness: There is not one word in Imbler, or in any of the numerous other cases cited by the majority, which describes an action similar to that of Goodwin here as being outside the prosecutor's (or witness's) absolute immunity. The only references in Imbler and all the other cases cited talk of "investigative" or "administrative" tasks inherent in the prosecutor's usual job as being outside absolute immunity.

My colleagues have apparently found no case which cites, by way of holding or dicta, any action by a prosecutor inside the courtroom as being outside his role of prosecutor.10 Goodwin's actions were not "actions preliminary to the initiation of a prosecution,"11 nor were they "actions apart from the courtroom";12 he was right in the middle of the courtroom and right in the middle of a grand jury proceeding, the time-honored method for "initiating a prosecution."13 The grand jury is an arm of the court. Goodwin was functioning "as an officer of the court." Goodwin's "activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force."14

To my mind Goodwin was a prosecutor functioning "as an officer of the court," and entitled to the prosecutor's absolute immunity under Imbler v. Pachtman. Yet it is undeniable that Goodwin was sworn as a witness, for a brief moment took the witness stand, and answered one question. My colleagues hold that after Goodwin took the oath as a witness he was acting as an investigator a strange conclusion and, after he took the oath as a witness (in addition to his oaths as attorney and prosecutor) he ceased to be "an officer of the court" to my mind an equally strange conclusion.

Both of these conclusions are necessary if the majority is to package Goodwin as an "investigator" or "administrator," for it is only if he can be so labelled that he can be deprived of the absolute immunity of the prosecutor under Imbler and countless other cases. That this is a strained and distorted result should be apparent, as it is so obvious that if Goodwin was not functioning as a prosecutor in his role "as an officer of the court," then he was functioning as a witness and each is entitled to absolute immunity.

It thus becomes necessary in these opinions to treat both prosecutorial and witness immunity.15 I shall first turn to the absolute immunity of the prosecutor as analyzed and affirmed by the Supreme Court in Imbler v. Pachtman (1976), then to the absolute immunity of the witness. To some extent the discussion must interweave, for both are part of the seamless web of immunity held for centuries to be essential to the functioning of an effective judiciary.

I. PROSECUTORIAL IMMUNITY "AS AN OFFICER OF THE COURT" WHOSE

"ACTIVITIES WERE INTIMATELY ASSOCIATED WITH THE

JUDICIAL PHASE OF THE CRIMINAL PROCESS"

We are all agreed that Goodwin's action was taken within the scope of his duty; it is further the case, I submit, that his action involved the exercise of significant discretion.¹⁶ He is thus entitled to some sort of immunity protection, qualified or absolute. "The procedural difference between the absolute and qualified immunities is important. An absolute immunity defeats the suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial."¹⁷

The decision whether qualified or absolute immunity is appropriate involves a balancing of the interests which would be benefited and impaired by application of either of the two doctrines. The decisions of the Supreme Court which have made this choice have weighed the incremental loss in litigant rights and remedial relief against the enhancement of governmental functioning resulting from the absolute as opposed to the qualified immunity. As a result of this balancing the Court has devised rules of absolute or qualified immunity for various classes of officials, as defined by function.¹⁸

Our role in applying these rules, where the Court has devised them, is to make a proper characterization of the function being performed by the official in question. Our role, however, is not to engage in a particularistic rebalancing of all the relevant policies to determine whether absolute or qualified immunity is appropriate in this case. Our analysis instead is functional: was this action undertaken in the prosecutor's capacity as an officer of the court, or, put another way, a government advocate in a courtroom setting? If this prosecutor should be so characterized, then he is entitled to absolute immunity under Imbler v. Pachtman. In Imbler the Court itself balanced the competing policies and mandated absolute immunity for the prosecutor in his role, very broadly conceived, as courtroom advocate.

A. Imbler v. Pachtman Balancing of the Interests Held to Require Absolute Immunity for the Prosecutor.

In order to make a more informed application of the Imbler rule, it may be helpful to set out the policies which underpin it. While our role, as noted, is not to make a de novo balancing of these policies in this case, an understanding and appreciation of the policies may contribute to a proper characterization of the prosecutor's protected role under Imbler. At the outset the Imbler Court recognized that § 1983, although it creates a cause of action for deprivation of constitutional rights, does not constitute a flat bar to immunity doctrine,¹⁹ and proceeded to consider the other factors, which, under its balancing approach, related to the choice of qualified or absolute immunity.

Recognizing the prosecutor's absolute immunity at common law from actions for malicious prosecution, the Court found equally applicable to actions under § 1983 the several rationales for this common law immunity.²⁰ Most importantly these included the "concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust."²¹ The Court noted that these twin hazards of diversion of energies and biasing of decision-making are, for several reasons, especially acute in the case of a prosecutor. Acting as he does under serious constraints of time and information, a prosecutor would "face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials."²² Further, the sheer number of decisions which a prosecutor must make that "could engender colorable claims of constitutional deprivation" means that a demonstration of good faith in every case "could impose unique and intolerable burdens . . . ."²³

The net harm of allowing only a qualified immunity in the performance of prosecutorial functions was not confined, therefore, to the "substantial danger of liability even to honest prosecutors,"²⁴ or even to the expenditure of great time and effort in defending such suits. Most seriously, the denial of absolute immunity would adversely affect "the functioning of the criminal justice system as a whole." "(T)riers of fact . . . often would be denied relevant evidence" by the creation of a systematic bias in the prosecutor against incriminating evidence of sufficiently uncertain pedigree as to support a colorable cause of action.²⁵ And post-conviction review procedures might well be biased in quite another way, against the convicted person, by "knowledge that a post-trial decision in favor of the accused might result in the prosecutor being called upon to respond in damages for his error or mistaken judgment."²⁶

As final support for its holding that prosecutors are absolutely immune "in initiating a prosecution and in presenting the State's case,"²⁷ the Court noted that the unavailability of suit under § 1983 for this category of cases "does not leave the public powerless to deter misconduct or to punish that which occurs" for "a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers."²⁸ As a deterrent of even greater weight, "(t)his Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law."²⁹ Taking all these policies into account, the Court concluded, on balance, that for § 1983 damage suits, as at common law, a prosecutor's actions "intimately associated with the judicial phase of the criminal process" were entitled to absolute immunity.³⁰

B. Application of Immunity Doctrine to Goodwin.

We thus come to the question of whether defendant Goodwin's sworn testimony, to the effect that none among the witness group represented by counsel was a Government informant, falls within the absolute prosecutorial immunity from damage actions established by the Supreme Court. As developed in the introduction, it would surely seem on its face that Goodwin's action during grand jury proceedings in answering a question from the judge in his capacity as lead prosecutor was action taken as an "officer of the court."³¹ This was action within his scope of duty which called for the exercise of discretion in its performance, precisely the type of "quasi-judicial" function within the absolute protection of Imbler.³²

In order to divest Goodwin of his protected prosecutorial function, the majority discusses at length numerous cases contrasting the prosecutor's advocacy role with his duties related to investigation and administration. By page --- of 186 U.S.App.D.C., at p. 21 of 569 F.2d the majority is ready to state:

. . . (W)e believe that appellant's false statement to the federal district court in Florida is properly characterized as an act of investigation rather than advocacy. . . . (A)ppellant's alleged perjury bears no relation whatever to the advocate's role as conceived by the Supreme Court in Imbler.³³

Indeed?

This rather extraordinary characterization is not supported by the "investigatory" cases cited by the majority. This characterization, moreover, rests upon a clear misreading of how the Imbler rule should be applied and upon an overly narrow reading of its conception of advocacy. These points will be developed in order below. Finally, as I will explain in more detail in Part I, C, infra, the attempted division of the prosecutor's function with the grand jury into "investigative" and "advocacy" roles is legally inaccurate and practically unworkable.

1. The characterization of Goodwin's action as "investigatory" is unprecedented and unjustified.³⁴ As a matter of case law, including all the cases cited by the majority, courts have characterized as "investigatory" those actions outside the courtroom setting where the prosecutor is acting in a capacity akin to the police officer in his efforts, for example, to obtain a confession,³⁵ or to make arrests,³⁶ or to execute a search warrant.³⁷ Indeed, the Imbler Court cited to the cases of policemen's functions, all involving activities apart from the courtroom, to show what it meant by "investigative" activity by prosecutors.³⁸ The majority's view of this courtroom activity as "investigatory" under Imbler is thus absolutely novel under the case law.

The majority's characterization, moreover, is not justified by the reasoning of the cases cited by Imbler. In Hampton v. City of Chicago,³⁹ for example, Judge (now Justice) Stevens recognized that since a police officer is entitled to only qualified immunity for his police actions, then a prosecutor performing the functions of a police officer should also be accorded only qualified immunity because "it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other." This concern for symmetry of treatment appears as a critical policy for the majority as well: "Regardless of his official status, a prosecutor functioning primarily as an investigator should be accorded only the qualified immunity typically conferred on other investigative officers."⁴⁰

In the instant case, however, a fair application of symmetry calls for absolute immunity for the prosecutor's courtroom statement. Goodwin need not be given qualified immunity because a policeman, if a witness, would only get qualified immunity; on the contrary, in my view a policeman functioning as a witness in a manner similar to Goodwin would be entitled to absolute immunity. The majority has not cited and cannot cite any case in which an official, as a witness, has been denied absolute immunity from a civil damage suit. See Part II, infra. Indeed, if the majority were to afford a policeman, qua witness, absolute immunity but deny it to this prosecutor, giving a similar answer, then Goodwin would be denied absolute immunity solely because of his official status, surely an impermissible result. If a policeman should have absolute immunity here, functioning as a witness, so too should Goodwin, functioning as an officer of the court.

Besides the concern for symmetry of treatment in the performance of similar tasks, the other basic rationale in the "investigatory" cases is that the prosecutor acting like a policeman outside the court should be afforded only qualified immunity because there is no other appropriate way for there to be "judicial surveillance" of this type of executive action. Apton v. Wilson.⁴¹ Put the other way, as Judge Leventhal did in Apton, the prosecutor acting within the confines of the court is entitled to absolute immunity as a "quasi-judicial officer" because "the circumstances typically provide alternative instruments of the judicial branch to check misconduct the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself."⁴²

Judged by the reasoning of Apton, it should seem that Goodwin is clearly entitled to absolute immunity, as his allegedly false statement was made directly under the control of the trial judge, a classic instance of "judicial surveillance." The majority, however, seeks to distinguish the reasoning of Apton because, it says, the circumstances of this case did not in fact provide for careful scrutiny of Goodwin's action. See at --- - --- of 186 U.S.App.D.C., at 24-25 of 569 F.2d. To begin with, the language from Apton does not suggest in any way that absolute immunity for a "quasi-judicial officer" should turn on a particularistic inquiry into whether in fact there was a full and fair "judicial surveillance."⁴³ Instead, it is the opportunity and potential for "judicial surveillance" that justifies absolute immunity for prosecutorial activity in a courtroom setting. That the majority is misreading the nature of absolute "quasi-judicial" immunity will become apparent from a close comparison of its rationale with Imbler.

2. Two of the reasons that the majority gives for why absolute immunity is not appropriate in this case are based upon a clear misreading of Imbler. The majority asserts, first of all, that there has yet been no apparent official inquiry into this alleged misbehavior, and, secondly, that the alleged perjury here was insulated from probing examination and jury appraisal. As I will show, these are not material factors under Imbler, even assuming their accuracy, as to whether this prosecutor was acting as an "officer of the court."

Consider first the issue of whether there has been any professional or judicial inquiry into Goodwin's action. In striking the balance in favor of absolute immunity, the Imbler Court⁴⁴ regarded as significant factors "(the) amenability (of a prosecutor) to professional discipline by an association of his peers" and the possibility as well of "criminal punishment of a prosecutor." The existence of these checks, the Court emphasized, thus "does not leave the public powerless to deter misconduct or to punish that which occurs."⁴⁵ In this case the majority holds that because there has been no professional or judicial inquiry after all this time, it is appropriate to allow an inquiry now in this suit for damages. This outcome rests on a misunderstanding by the majority about the nature of the Supreme Court's analysis in Imbler. The Court was weighing the general policies behind absolute as opposed to qualified immunity in order to arrive at the functional rule of absolute immunity for the prosecutor in his role as advocate. By weighing in the balance the amenability of a prosecutor to alternative sanctions, the Court did not mean that the availability of absolute immunity from civil damage suits in each case should turn on a particularistic determination of whether the prosecutor's act in question had otherwise been the subject of a disciplinary inquiry. Indeed, the Imbler Court did, in fact, grant absolute immunity to the individual prosecutor, Mr. Richard Pachtman, without anywhere indicating whether he had been subject to disciplinary inquiry in the many years between the trial in 1961 and the Court's award of absolute immunity in 1976. Similarly, it is immaterial whether Goodwin's action has in fact been subject to disciplinary review. Rather, what the Imbler Court emphasized is that there had existed the possibility of alternative checks, citing to the relevant sections of the ABA Code of Professional Responsibility and the California Penal Code. So too here, there is no question that there has existed the potential for professional, criminal or judicial inquiry into his action, thus bringing him within the analysis of Imbler.⁴⁶

As a matter of immunity doctrine, moreover, there is real wisdom in not having the choice between immunities turn on a determination of whether this action in particular was subject to disciplinary review. A fair assessment of this factor may have to involve further proceedings and findings, a possibility which undercuts the purpose of absolute immunity, to provide protection at the outset from trial and liability. In this case, for example, it is not altogether clear that there was no apparent official inquiry into the seeming misstatement, as the majority asserts.⁴⁷ At the criminal trial of appellees, the trial court held an evidentiary hearing before admitting the informant, Poe, as a witness. Based on evidence received at the hearing, and over the objections of appellees that their Fifth Amendment right to Due Process and their Sixth Amendment right to counsel had been violated, the trial court permitted Poe to testify. Was the court's ruling at all based upon its view that Goodwin's answer was not perjury or did not violate the Constitution? The record in the criminal case is not before us and so the question must go unanswered.

Yet if the trial court did face there the issue of the alleged perjury which is very plausible since the appellees here were the defendants there then the majority may be unfairly and inaccurately assuming that there has been no official inquiry. For a more precise assessment of its assumption, the majority would have to have a remand on this issue, to allow for further proceedings, all this taking place, I repeat, even before the choice of immunities is made. And yet, without a remand on whether there had been an official inquiry at the criminal trial into the alleged perjury the majority may be denying Goodwin absolute immunity on the basis of an unfair and inaccurate assumption, as well as one that is immaterial.

Furthermore, the majority overlooks the important possibility that the lack of any official inquiry may itself reflect some oversight by other parties. My thought is that the Department of Justice and the District Judge are well aware of the facts on the merits of this case,⁴⁸ and that in their opinion the claim of plaintiff Briggs has no merit, hence no action has been taken. It is worth noting also that since the courtroom incident we have had two Presidents and several Attorneys General, of different political persuasions. How does the majority take into account the possible scrutiny by all these people, short of a formal "official inquiry," and their possible judgment that action against Goodwin was not warranted? If Goodwin is to be denied absolute immunity because nobody has reviewed his alleged misbehavior, then the majority must not totally overlook, as it does, the important possibility that the relevant parties have exercised some oversight and have decided against further inquiry.

The short of it is that it is unwise to make absolute immunity turn on whether there was in fact alternative review of the incident in question. Such an inquiry, as demonstrated by this case, may raise evidentiary and other issues that must be resolved even before the choice of immunities can be made. The greater the number of issues that are injected into this choice, beyond the necessary issues of scope of duty and discretionary act, the more the protection of absolute immunity the dismissal of a suit at the outset is eroded. It was thus very appropriate for the Imbler Court not to consider whether that prosecutor had been called to answer for his alleged courtroom misdeeds. We should, and must, follow their example: it is immaterial whether there was ever an "official inquiry" into Goodwin's alleged perjury.

The other argument of the majority is that because Goodwin's statement was "insulat(ed)" from appraisal by the jury and further inquiry by the appellees, it is inappropriate to accord absolute immunity in this case.⁴⁹ Once again, this outcome rests upon a misreading of Imbler. As mentioned earlier,⁵⁰ Justice White in a separate opinion argued that there should be only qualified immunity for the unconstitutional withholding of information from the court. When a prosecutor suppresses evidence, Justice White contended, it is, by definition, not subject to the scrutiny of the judicial process; thus, there is "no way to prevent or correct the constitutional violation."⁵¹ Note the similarity to the majority's view that absolute immunity is inappropriate here. For example, the majority points out that "appellees and their counsel were required to accept appellant's representation on faith,"⁵² which meant, in Justice White's terms, that there was "no way to prevent or correct the constitutional violation."⁵³

The short answer to the majority's view that Goodwin's "insulat(ed)" answer loses absolute immunity is that the Imbler Court expressly rejected Justice White's separate view that the total suppression of evidence warranted only qualified immunity.⁵⁴ Thus, under Imbler it is immaterial to the choice of immunities whether Goodwin's allegedly false statement during judicial proceedings was not adequately tested by cross-examination or by jury appraisal.

Moreover, viewing this case in terms of the suppression of evidence, the Imbler Court's rejection of Justice White's separate approach may be said to settle and control this case. One of the policies justifying absolute prosecutorial immunity is that otherwise "the triers of fact in criminal cases often would be denied relevant evidence."⁵⁵ By rejecting Justice White's view that an unconstitutional withholding should not warrant absolute immunity, the Imbler Court was essentially saying that in all the decisions about presenting evidence to the court the prosecutor would have absolute immunity. This would include decisions to present evidence of dubious reliability as well as decisions not to present particular evidence at all. In these terms, what Goodwin allegedly did, in essence, was decide not to present the court with the evidentiary fact that there was a government informant among the witnesses. Since this decision entailed an element of judgment (giving the framing of the question from the trial court), it is a decision about presenting evidence, in this case from himself as witness and counsel, that is basically the subject of this suit.

Imbler afforded protection for the full range of decisions about presenting or withholding evidence. Once again, we should, and must, follow its guidance: it is immaterial whether Goodwin's decision, to withhold evidence, was shielded from cross-examination, or the other "corrective" aspects of the trial process.

3. Central to the majority's conclusion denying absolute immunity to this prosecutor is its view that his "alleged perjury bears no relation whatever to the advocate's role as conceived by the Supreme Court in Imbler."⁵⁶ As discussed above, this conclusion disregards whether his alleged perjury bears a relation to his role as an officer of the court (which he may be, even though not an "advocate" in the most narrow sense) under Imbler or to his role as witness, both of which roles are entitled, I submit, to absolute immunity. But even considering solely the advocacy role for the moment, the majority finds no relation to advocacy only by adopting a much more narrow view of the advocate's role than was conceived and applied in Imbler. If the advocate's role as defined in Imbler and the circumstances of this case are properly understood, Goodwin's response to the question may fairly be seen as a necessary part of his advocate's role.

The Imbler Court meant for the advocate's role to be read very broadly. Not only did Imbler go out of its way to say in dicta that the role extended to "actions preliminary to the initiation of a prosecution and actions apart from the courtroom,"⁵⁷ but also in disposing of the case it found actions to be advocacy which, at first glance, appeared more to be investigation. Having already shown that the broad language of the dicta appears to bring his alleged perjury within the ambit of Imbler,⁵⁸ let us focus here on how the treatment of the precise facts of Imbler also establishes that the action of Goodwin comes within the broad definition of advocacy.

The starting point for the relevant analysis is footnote 32 of Imbler, which discusses seemingly "invest