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August 7, 1986

SHELDON BARR, Plaintiff,

The opinion of the court was delivered by: LEVAL



This is a motion by defendants to dismiss an action brought under 42 U.S.C. §§ 1983 and 1985. The plaintiff Sheldon Barr is an attorney under investigation by the Attorney General of the State of New York for involvement in a scheme of fraudulent sales of securities, who was charged with contempt for refusal to produce documents and answer questions. The defendants are the Attorney General, three Assistant Attorneys General, and two staff investigators who arrested Barr under an arrest warrant to answer the contempt charges.

 The complaint asserts 12 causes of action, seeks to enjoin defendants from utilizing evidence obtained in violation of Barr's constitutional rights, alleges compensatory damages of $30 million, plus punitive damages of $30 million.

 The complaint alleges that, in the course of the investigation into securities fraud, the defendants acting maliciously and without jurisdiction filed a criminal information charging Barr with contempt and obtained an arrest warrant leading to Barr's unlawful arrest and imprisonment. Barr claims the filing of the information was designed to punish him for exercising his Fifth Amendment rights. The complaint alleges further that defendants threatened and harrassed prospective witnesses, unlawfully seized property, submitted false and misleading sworn statements to courts, slandered the plaintiff, and illegally conspired with the Internal Revenue Service. As a result, Barr claims to have suffered financial, mental and physical harm and incurred considerable attorneys fees for which he now seeks compensation.

 An order requiring Barr to appear and produce documents of Enersonics Corporation was issued by Justice Thomas Hughes on April 11, 1984. Barr moved to set the order aside and litigated its validity through the state courts for sixteen months before appearing. When he finally did appear in August 1985, he invoked the Fifth Amendment, refused to produce any documents or answer any questions, including the identification of persons having control of the documents. The Attorney General then filed the criminal information charging Barr with criminal contempt. On the Attorney General's application an arrest warrant was ordered by the Supreme Court and was executed by defendants Bottiglieri and O'Connor, who were staff investigators for the Attorney General. Barr then obtained an order on October 21, 1985 dismissing the contempt charge. Thereafter, he brought this action.

 For a variety of reasons discussed below, the complaint must be dismissed.

 1. The Prosecutor Defendants.

 It has long been the rule, and recently reaffirmed by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), that a state prosecutor is immune from a suit for damages under the civil rights acts based on his prosecutorial actions in initiating and presenting the State's case in court. Imbler left open whether the same absolute immunity also covers the prosecutor's pre-prosecution investigation. But in any event, all his actions in his official capacity are protected by the qualified (or good faith) immunity which bars a damage action against him unless his conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). See also Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 2814, 86 L. Ed. 2d 411 (1985).

 The Supreme Court made clear in these cases that an objective sought by the immunity rule is not only to determine the result but also to insure that such actions not be prosecuted, because of their tendency to distract government officials from their duties, deprive the public of the services of those appointed to perform them, make officials timorous and fearful in their decisions, and generally disrupt effective government. See Harlow, 457 U.S. at 816-18, 73 L. Ed. 2d 396, 102 S. Ct. 2727 ; Imbler, at 423; 96 S. Ct. at 991. The Supreme Court explained that even the taking of discovery entails a large measure of these costs and should not be permitted except where it is clear that the lawsuit is one of substance falling outside the range protected by the immunities.

 a. The Filing of the Contempt Charges.

 As to the filing of the information charging Barr with contempt and the application to the New York court for an arrest warrant based on that charge, in taking those actions the Attorney General and his deputy prosecutors were acting in their core court-related role under the absolute immunity of Imbler.

 Barr seeks to escape Imbler absolute immunity by arguing that, under New York criminal law, the Attorney General did not have legal authority to bring such criminal contempt charges in connection with an investigation under Article 23-A of the General Business Law. The argument is specious. Whether New York law confers the authority to prosecute for contempt in these circumstances solely on the District Attorney or also on the Attorney General is a complicated question; the answer to it does not govern the availability of immunity.

 Section 358 of the General Business Law empowers the Attorney General to "prosecute every person with the commission of a criminal offense in violation of the laws of this State, applicable or in respect of the practices or transactions which in this article are referred to as fraudulent practices." The contempt information was founded on § 215.50(3) of the New York Penal Law, which authorizes prosecution for contempt for "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court. . . ." Barr claims that the contempt prosecution is outside the Attorney General's jurisdiction because the acts constituting the alleged contempt were not "applicable or in respect of the practices or transactions" that were fraudulent. When Barr sought to have the charge dismissed on the grounds that these facts were outside the Attorney General's authority, Justice Sayah ruled against Barr, upholding the Attorney General's authority, which does not help Barr's argument here. But nothing turns on whether this court does or does not agree with Justice Sayah's interpretation of the New York law in its division of responsibility between various prosecuting agencies. Regardless whether the New York courts would confirm that the contempt prosecution related to the Attorney General's investigation in a manner that supports the Attorney General's authority to bring the prosecution (as opposed to the District Attorney), it is clear beyond question that in filing a criminal information the Attorney General and his deputies were acting in a core court-related prosecutor's role which is unmistakably covered by the Imbler absolute immunity. Whether the Attorney General was acting within his jurisdiction is immaterial. The availability of the immunity does not ...

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