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Barr v. Abrams

decided: January 28, 1987.


Appeal from an order of the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, granting a motion for summary judgment by the defendants, the Attorney General of New York, three Assistant Attorneys General, and two investigators on the staff of the Attorney General, in an action for injunctive relief and damages under 42 U.S.C. §§ 1983 and 1985.

Author: Kaufman

Before: KAUFMAN, TIMBERS and MAHONEY, Circuit Judges.

KAUFMAN, Circuit Judge:

It is an indispensable foundation of our system of justice that no man, however exalted the position he holds, is above the law. At the same time, because public officials entrusted with discretionary responsibilities must have breathing space within which to perform their functions for the common good, doctrines of immunity protect them against many claims of wrongdoing. In this case, we find ourselves between these lefty principles, in a small clearing that has been left unilluminated.

Specifically, we are called upon to decide what, if any, degree of immunity should be enjoyed by state prosecutors who are charged with violating constitutional rights while proceeding in excess of their jurisdiction.


In March, 1983, Assistant Attorneys General Orestes J. Mihaly, Mark A. Tepper, and Rebecca Mullane commenced an investigation pursuant to Article 23-A of the New York General Business Law into alleged violations of state securities laws. Subsequently, on April 10, 1984, the Attorney General's office moved ex parte for an order requiring fifty-nine persons, including Sheldon Barr, an attorney, to appear for an examination under oath and to produce papers, books and records pertaining to the offer and sale of equipment leasing tax shelters. On April 11, 1984, Supreme Court Justice Thomas J. Hughes granted the relief requested.

Barr refused to abide by the court's order to appear. Instead, on April 27, 1984, he moved the New York Supreme Court for an order vacating so much of the April 11, 1984 order as applied to him, on the ground that his testimony would not in any way be relevant to the investigation and taking it would thus be an unwarranted invasion into his affairs. On June 5, 1984, Justice Hughes denied the motion. On February 5, 1985, the Appellate Division, First Department, unanimously affirmed that decision, and on June 11, 1985, the New York Court of Appeals denied Barr's motion for leave to appeal.

On August 7, 1985, Barr appeared with counsel at the office of the Attorney General. At the commencement of the inquiry, Assistant Attorney General Tepper advised Barr that he had the right to remain silent, that anything he said would be used against him, and that he could stop the examination at any time he wished not to answer a question. On the advice of his counsel, Barr then refused to produce any documents or answer any questions, invoking his fifth amendment privilege.

At the initial hearing followed his arrest, Barr contended that the criminal charges had been filed for improper purposes and that Attorney General had no authority to commence such a criminal proceeding. In addition, Barr argued that the contempt charges were without substance. On October 21, 1985, by order and opinion, Criminal Court Judge Max Sayah dismissed the information on the ground that Barr had a fifth amendment right to refuse to answer the questions prosed by Assistant Attorney General Tepper and to produce the requested documents.

Following his vindication in the New York court, Barr filed an action under 42 U.S.C. §§ 1983 and 1985 against Attorney General Robert Abrams, Assistant Attorneys General Mihaly, Tepper and Mullane, and Investigators Bottiglieri and O'Connor. Claiming to have suffered financial, mental and physical harm, Barr sought compensatory damages of $30 million plus punitive damages of $30 million. Barr also sought to enjoin the prosecutors from utilizing any evidence obtained in violation of his constitutional rights.

Specifically, Barr alleged that the defendants had maliciously, without jurisdiction, and for the improper purpose of punishing him for exercising his fifth amendment rights, investigated criminal contempt proceedings against him and obtained an arrest warrant leading to his unlawful arrest. Barr further alleged that the prosecuting attorneys, acting in concert with their staff investigators, had unlawfully effected his arrest and imprisonment. Finally, Barr alleged that the prosecutors had threatened and harassed prospective witnesses, unlawfully seized property, submitted false statements to the courts, slandered Barr, and illegally conspired with the Internal Revenue Service.

On August 7, 1986, the district court granted the defendants' motion for summary judgment. In comprehensive opinion, Judge Leval ruled that pursuant to Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), absolute immunity protected the prosecutors from a civil rights suit based on their actions in filing the criminal information and applying to the New York court for an arrest warrant. In any event, Judge Leval held, the prosecutors enjoyed qualified immunity for these actions pursuant to Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Judge Leval further decided that Barr's remaining claims were vague and conclusive and subject to dismissal for failure to state a cause of action, on the ground of prosecutors immunity, or both. Finally, Judge Leval ruled that even if any of the claims surmounted all of these hurdles, Barr's action still would have to ...

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