from wrongdoing. It is equally plausible that an initial complainant may make a complaint to forestall investigation, or for vindictive reasons. In either case, the factual pattern rather than who complains first properly guides subsequent police or prosecutorial investigation or action.
No justification for such a policy has been presented. Absence of any confirms the impropriety of discrimination of this type which plainly injures an individual second-complainer. Such a policy does more to injure than to serve any public interest. A first-come-first served policy also runs contrary to the objectives of law enforcement to protect the public, since it inhibits collection of the fullest possible information from all sources relating to a potentially criminal incident.
A prosecutor cannot function effectively if in fear of personal liability for decisions which can be second guessed after the event.
The district attorney here is protected by absolute immunity against claims for damages against him in his individual capacity. Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Dory v. Ryan, 25 F.3d 81 (2d Cir. 1994).
There is no indication here that any prosecutor directly and personally tilted an investigation to come out in favor or against any particular party, or engaged in falsification of evidence or other behavior justifying invocation of an investigative function exception to such immunity. See Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616, 125 L. Ed. 2d 209 (1993).
Prosecutorial immunity is personal; no argument is made as to why it should extend to any of the institutional defendants. Since questions of injunctive relief were not raised by the parties, nor is it clear whether or not any continuing policy survive part II of this memorandum order, there is no occasion to consider any immunity of any defendant from such relief.
Counsel for defendants are requested to furnish within fifteen (15) days of the date of this memorandum order an unambiguous forthright affidavits by all relevant current authorities at the County, City, Police Department and District Attorney levels concerning whether or not any policy directly or indirectly favoring pursuit of complaints by first complainers to police over complaints by subsequent complainers is continuing as of this time. Failure to do so may be the basis of an adverse inference regarding the existence and continuity of such a policy.
Dated: White Plains, N.Y.
December 14, 1994
/s/ Harold Baer, Jr., U.S.D.J. for
VINCENT L. BRODERICK, U.S.D.J.