Appeal from an order of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, denying defendant's motion for summary judgment in this civil rights action. Order reversed and motion granted sustaining defendant's claim of prosecutorial immunity.
Winter and Pratt, Circuit Judges, and Metzner, District Judge.*fn*
Plaintiff, Mary E. Betts, instituted a civil rights action seeking money damages. 42 U.S.C. § 1983. The original defendants were a police officer, a corrections officer, the Superintendent of the Connecticut Correctional Institution at Niantic, the Commissioner of Correction in Connecticut, and the appellant, Richard Morelli, a Deputy Assistant State's Attorney for Connecticut. The litigation as to all defendants, except for Morelli, has been settled.
Morelli contends that as a state prosecutor he has absolute immunity from liability for damages allegedly suffered by plaintiff in this case. Plaintiff was arrested pursuant to a capias obtained by Morelli from a trial judge in the Superior Court of Connecticut, to secure the presence of the plaintiff as the state's principal witness in a criminal trial. The following appears to be the chronology of events leading up the institution of this action.
On June 7, 1981, plaintiff made complaint to the Stonington Police Department that she had been beaten up that day by her boy friend, Hugh Christie. She gave the police a signed written statement of the episode. Christie, with whom she had been living, was a police officer in the Town of Groton. He was arrested on the basis of the complaint and charged with assault in the third degree. A subpoena was issued for the plaintiff to appear at Christie's trial on September 8, 1981. Plaintiff then informed Morelli that she did not wish to testify against her boy friend. After being told that she would have to testify, the plaintiff stated that her written statement did not recite exactly what had happened, and that she and her boy friend were back together again and she wanted to drop the charges. Plaintiff at this point claims that she said she would testify, but not in accordance with the written statement. Defendant, upon the direction of his superior, refused to drop the charges.
It appears that the criminal trial was adjourned to Friday, September 18, 1981. On the previous day, the defendant tried to contact the plaintiff to confirm the date. He left a message at her place of employment for her to call him. Plaintiff admits receiving the message, but made no effort to return the call. Morelli also contacted plaintiff's attorney on that Thursday and informed him that the trial would start the next day, but the attorney said that he was going to a seminar and would not appear the next day with his client.
The plaintiff failed to appear in court on Friday and a capias was issued for her arrest. After a short discussion regarding some discovery problems, the court proceeded to take the defendant's plea of not guilty to a substitute information. Previously, defendant had pled not guilty to the original information. This took a few moments. The court then proceeded to select a jury. About 4 P.M. the case was adjourned to the following Monday morning.
In the meantime, the capias was executed with plaintiff's arrest at her home at 3:22 P.M. that Friday. Instead of being brought to court, she was taken to the Niantic Correctional Institution where she was incarcerated overnight. She was released on bond on Saturday, and on the following Monday appeared with her attorney in court.
On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness. She promptly asserted her privilege against self-incrimination. The court sustained the claim of privilege and the prosecutor was forced to dismiss the charges against Christie.
Plaintiff then instituted this Section 1983 action and the defendant sought summary judgment on the ground that he had absolute immunity. The court below denied the motion, 566 F. Supp. 125, holding that there was an issue as to whether the purpose for seeking the capias was to obtain perjured testimony, in which case absolute immunity did not exist. In addition, the district court was of the opinion that the request for the capias occurred before the commencement of trial which marks the shift of the prosecutor's function from investigative to "quasi-judicial."
This is the first case in this circuit raising the question as to whether a witness in a criminal prosecution has a viable 1983 claim against the prosecutor for violation of the constitutional rights of the witness.
The seminal case in this area of prosecutorial immunity is Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). In Imbler the prosecutor was charged with having knowingly used false testimony in the criminal trial in which the plaintiff was the defendant. The Court held that the prosecutor was clothed with absolute immunity under Section 1983. The Court said:
"To be sure, this immunity does leave the genuinely wronged defendant without civil redress against the prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the ...