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Robison v. Susan R. Via and Harold Harrison

decided as amended.: June 17, 1987.


Appeals from so much of an order of the United States District Court for the District of Vermont, James S. Holden, Judge, as denied defendants' motions for summary judgment dismissing plaintiff's claims under 42 U.S.C. § 1983 and state law. Affirmed in part, reversed in part, and remanded.

Author: Kearse

Before: KAUFMAN, KEARSE, and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Susan R. Via, a Vermont Assistant State's Attorney, and Harold Harrison, a Vermont state trooper, appeal from so much of an order of the United States District Court for the District of Vermont, James S. Holden, Judge, as denied their motions for summary judgment dismissing the claims of plaintiff Connie Robison brought under 42 U.S.C. § 1983 (1982) and under state law. The complaint alleges that defendants deprived Robison of the custody of her two children and used excessive force against her in violation of her rights to due process, and that they inflicted physical and emotional injury on her in violation of state law. On appeal, Via and Harrison contend principally that the district court should have summarily dismissed Robison's § 1983 claims because defendants enjoyed either absolute or qualified immunity for their acts. Although we reject defendants' claims of absolute immunity, we reverse so much of the order as (1) denied Via and Harrison summary judgment on their defenses of qualified immunity to Robison's § 1983 claims for deprivation of the custody of her children, and (2) denied Via summary judgment with respect to the § 1983 claim against her for excessive force. We affirm the denied of summary judgment as to the § 1983 claim against Harrison for use of excessive force. In addition, we conclude that the district court should decline to take pendent jurisdiction of most of Robison's state-law claims.


The present suits arises out of defendants' investigation into a complaint that Robison's then nine-year-old daughter had been sexually abused by her father, Robison's husband, Except to the extent indicated below, there appears to be no substantial dispute as to the facts relating to the initial stages of the investigation and the proceedings following defendants' removal of the children from the custody of their mother. There is substantial dispute as to defendants' confrontation with Robison immediately prior to their removal of the children.

A. The Events

On August 26, 1981, Via received a call from a police detective concerning a complaint by Mrs. Sarah Orrill relating to child abuse. Via telephoned Mrs. Orrill, who requested that a female police officer interview her and her daughter, who had brought the information to Mrs. Orrill. When it turned out that no female police officer was available, Mrs. Orrill agreed to have Via accompany Harrison, a Vermont state trooper, to the interview.

In the interview, Mrs. Orrill's daughter reported to Via and Harrison statements that Julia Robison, then nine years old, had made to her. Julia said she had been sexually assaulted numerous times by her father since she was six years old, the most recent occasion being two-to-three weeks earlier. Julia said this sexual activity hurt her, that she had a genital rash, and that she was afraid of her father. Julia said that Robison was aware of the situation, both Julia and Julia's half-brother Michael (Robison's son) having reported it to her, and that Robison had simply told Julia not to tell anyone outside the family and had done nothing to pre vent recurrence. Mrs. Orrill's daughter said that Julia had also told another schoolmate, the daughter of Mary Vass, of these events.

Via and Harrison proceeded to interview Mrs. Vass's daughter, whose description of Julia's statements was similar to that given by Mrs. Orrill's daughter. In addition, Mrs. Vass's daughter said that Michael had told her that he had told Robison that he had seen Julia in bed with Mr. Robison. Via and Harrison were told further, either by Mrs. Orrill's daughter or by Mrs. Vass's daughter, that in the past Michael had been severely disciplined by his stepfather, including one occasion on which he was struck in the face with a large belt buckle.

From the Vass residence, Via and Harrison went to the Robison residence. Only Robison was at home.

At her deposition, Robison described her conversation with Via and Harrison as follows. After Harrison told Robison about the complaint that Mr. Robison had sexually assaulted Julia, Robison told Harrison that "he must have made a mistake." She admitted that Michael had told her of seeing Julia in bed with Mr. Robison but stated that she had believed that this referred to some innocuous event such as their watching Saturday morning cartoons together. Robison told Via and Harrison that they could talk to the children, who she should be home in ten minutes, and "suggest[ed]" that the interview of her children be conducted in her presence. Via and Harrison thereupon left the Robison residence.

Affidavits by Via and Harrison and a contemporaneous Investigation Report by Harrison gave a different flavor to this initial interview of Robison. They described Robison as hostile, indignant, uncooperative, and more interested in knowing who made the complaint than in assessing its validity. Both Via and Harrison stated that they believed Robison was lying to them and would attempt to suppress the truth. They stated that Robison insisted that the interview of her children be conducted in her presence.

After leaving the Robison residence, Via and Harrison found the Robison children outside the Orrill residence. Before Via and Harrison could state why they were there, Julia began to cry; Michael exclaimed that Mr. Robison had not done "it" in a long time, that Via and Harrison should not take his "father" away, and that Michael would be beaten if his father were taken away. Prior to any questioning of the children, Robison arrived in her car.

Robison's version of the ensuing contretemps, given at her deposition in this case, was as follows. When Robison arrived, Michael, who was in the police car, and Julia, who was not in the car, started coming toward her. Robison told them to get in her car, that "we're going home." Harrison told her that she could not take the children home because he and Via were going to take them to the police barracks. Robison told Harrison that he could talk to the children only at her house. The children got into Robison's car, but when Robison tried to get in, "Harrison pushed [her] up against the door and yanked [her] out, and threw [her] up against the fender." Her "hip bones hit against the car," causing bruises that lasted a "couple weeks, maybe." She also testified that Harrison "twisted [her] arm behind [her] back" and that she suffered bruises on her wrist. Robison testified that Via initially "didn't physically come in contact with [her]," but that later, when Robison had grabbed Julia around the middle, Via "pried at [Robison's] fingers or that kind of thing." After Harrison and Via had regained control of the children, Harrison threw Robison's car keys into nearby bushes, and he, Via, and the children departed in the police car.

The Via and Harrison affidavits and Harrison's Investigation Report cast the altercation with Robison in a different light. They stated that Robison emerged from her car shouting and hysterical, while Harrison remained claim. Harrison stated that after Michael and Julia had gotten into Robison's car, he positioned himself in front of the open door and asked the children to get out, that Robison thereupon pushed him, and that he moved her away from the car door and pinned her against the rear fender of her car. He stated that when Robison's hand later came near his revolver, he pushed it away. Via too stated that Robison had reached for Harrison's revolver.

Harrison stated that he threw Robison's car keys onto the Orrill driveway to prevent her from immediately following the police car in her agitated state. Via stated that at no time did she touch Robison.

Michael and Julia were taken to the state police barracks at approximately 3:40 p.m. Julia was the interviewed by Via for approximately 45 minutes to one hour. After being unable to reach a state court judge earlier, defendants finally contacted Vermont Judge Alden T. Bryan, who issued a temporary detention order at 6:00 p.m. pursuant to Vermont Stat. Ann. tit. 33 ("33 V.S.A.") § 643 (1981). The temporary custody order was continued after a hearing the following day.

B. The Denial of Summary Judgment

Robison's amended complaint asserted (1) due process claims under § 1983 against both defendants for the taking of her children and against Harrison for the use of excessive force against her, and (2) state-law claims against both defendants for intentional infliction of emotional distress as a result of the taking and against Harrison for battery. Jurisdiction was asserted under 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship), 1343 (civil rights) and pendent jurisdiction. Via and Harrison moved for summary judgment dismissing the entire complaint.

In an Opinion and Order dated May 23, 1986, the district court granted both defendants partial summary judgment on the ground of absolute immunity for all injuries caused after the commencement of juvenile proceedings before Judge Bryan at 6:00 p.m. on August 26, 1981. In all other respects, defendants' motions were denied. The court held that defendants' activities prior to contacting Judge Bryan were investigative rather than prosecutorial and therefore were not entitled to absolute immunity. It held that Via and Harrison were not entitled to summary judgment on their defenses of qualified immunity because (a) taking the children into custody pursuant to 33 V.S.A. § 639(3) (1981) must be premised on "immediate danger," which did not exist because Mr. Robison was not present, and (b) taking Michael and Julia to the State Police barracks had violated the command of 33 V.S.A. § 640 (1981) that a person taking a child into custody "shall immediately and without first taking the child elsewhere . . . deliver the child to the juvenile court . . . . "

These appeals followed.

C. The Issues on Appeal

Via and Robison appeal from so much of the district court's order as denied their summary judgment motions, contending principally that they are absolutely or qualifiedly immune from liability on plaintiff's § 1983 claims. For the reasons below, we conclude that they were entitled to summary judgment dismissing all of Robison's § 1983 claims except that for the use of excessive force by Harrison; as to the latter claim, there exist genuine issues of material fact requiring a trial. Further, given the narrow scope of this remaining federal claim, we conclude that most of Robison's state-law claims should also be dismissed.


A. Absolute Immunity

Via and Harrison contend that they are entitled to absolute immunity from any due process claim based on their taking the children into custody either because they were performing a prosecutorial function or because the importance of investigating allegations of child abuse warrants the granting of absolute immunity. We reject both contentions.

1. Prosecutorial Function Immunity

Absolute immunity accords protection from liability, from suit, and from any judicial scrutiny of the motive for and reasonableness of official action. It is established that prosecutors performing prosecutorial activities "intimately associated with the judicial phase of the criminal process" enjoy such absolute immunity in an action brought under § 1983. Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); see Pierson v. Ray, 386 U.S. 547, 553-55, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Prosecutorial functions were accorded absolute immunity at common law and continue to enjoy such protection from attack under § 1983 because "any lesser degree of immunity could impair the judicial process itself." Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1097, 89 L. Ed. 2d 271 (1986). For similar reasons, such immunity has been extended to other litigating activities of government attorneys, such as initiating and prosecuting child protection litigation. See Walden v. Wishengrad, 745 F.2d 149, 152-53 (2d Cir. 1984).

The granting or denial of absolute immunity depends more, however, on the function being performed than on the office of the defendant, and the absolute immunity accorded a prosecuting attorney is extended only so far as is necessary to the effective functioning of the judicial process. For example, it extends to the prosecutor's seeking an indictment, because exposing him to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of the case, see Malley v. Briggs, 106 S. Ct. at 1097, but it generally does not extend to his investigative activities independent of the litigation, because those activities are not integral to the judicial process itself, see, e.g., Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981); Lee v. Willins, 617 F.2d 320, 322 (2d Cir.), cert. denied, 449 U.S. 861, 101 S. Ct. 165, 66 L. Ed. 2d 78 (1980). It also extends to a county attorney's procurement of an arrest warrant to enforce a trial subpoena in an ongoing action to terminate parental rights, Walden v. Wishengrad, 745 F.2d at 152, but does not extend to a police officer's applying for a pre-proceeding arrest warrant since, in so doing, the officer is not "a central actor in the judicial process," Malley v. Briggs, 106 S. Ct. at 1097. Nor does it extend to a prosecutor's participation in the execution of an arrest warrant since arrests and seizures are normally police functions, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate. See, e.g., Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987) (execution of arrest warrant "generally would carry the prosecutors out of the realm of Imbler and into Harlow [v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (qualified immunity)]"); see also Myers v. Morris, 810 F.2d 1437, 1462 n.20 (8th Cir. 1987) (prosecutor's participation in removal of children is not tantamount to case initiation where parents have not been arrested in connection with alleged molestation of those children).

We see no basis for accepting the contentions of Via and Harrison that in seizing the children they were performing a prosecutorial function. Via's presence at the seizure of the children did not transform what was fundamentally a police function into one that was prosecutorial. Indeed, the presence of any prosecutor at the seizure of the Robison children was pure happenstance, occurring only because no female police officer had been available as requested by Mrs. Orrill to question her daughter. Further, when the Robison children were seized, no proceeding had yet been commenced, and it does not appear that Via was in a position at that moment to commence the prosecution of a child abuse claim. She and Harrison had not yet asked the children themselves any questions, and they proceeded to interview Julia for nearly an hour and only thereafter obtained ...

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