UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011
November 21, 2011
STEPHANIE FLAGLER, PLAINTIFF-APPELLANT,
MATTHEW E. TRAINOR, ASSISTANT DISTRICT ATTORNEY, FULTON COUNTY, NEW YORK AND THE COUNTY OF FULTON, NEW YORK, DEFENDANTS-APPELLEES.
Appeal from an order and judgment of the United States District Court for the Northern District of New York (McCurn, J.), which granted Defendants-Appellees' motion to dismiss Plaintiff-Appellant's complaint in its entirety based on absolute prosecutorial immunity.
The opinion of the court was delivered by: Wesley, Circuit Judge:
Flagler v. Trainor
Argued: September 14, 2011
Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges.
Defendants-Appellees moved the district court to 38 dismiss Plaintiff-Appellant's complaint pursuant to Federal 39 Rule of Civil Procedure 12(b)(6), arguing that Defendant- 40 Appellee Matthew Trainor, a Fulton County Assistant District 41 Attorney, was absolutely immune from Plaintiff-Appellant's 1 claims.*fn1 We conclude that the district court correctly 2 found Trainor absolutely immune from liability for making 3 alleged false statements in support of a material witness 4 order and warrant.
We also conclude, however, that the district court 7 erred by finding Trainor absolutely immune from Plaintiff- 8 Appellant's other claims. Because absolute immunity only 9 extends to conduct related to prosecutorial functions that 10 are intimately associated with initiating or presenting the 11 State's case, it does not immunize prosecutors from 12 liability for: (1) making defamatory statements to the 13 press; (2) accessing a person's voicemail without consent; 14 or (3) persuading a party to a conversation to record its 15 contents. We also vacate and remand for the district court 16 to consider in the first instance whether immunity extends 17 to Trainor's decision to "preserve" evidence after the 18 criminal prosecution has run its course.
We express no view as to the substantive viability of 21 these claims. We simply conclude that absolute immunity 22 does not shield this conduct.
AFFIRMED in part, VACATED and REMANDED in part.
This case requires us to revisit the purpose and scope of absolute immunity for prosecutors.
Plaintiff-Appellant Stephanie Flagler was a victim of 3 domestic violence at the hands of her ex-boyfriend, Brandon 4 Becker. A grand jury indicted Becker for a criminal matter 5 in which Flagler was the complaining witness. Becker's 6 trial was scheduled to begin on March 12, 2007. In the days 7 leading up to Becker's trial, Assistant District Attorney 8 Matthew Trainor grew concerned that Becker was encouraging 9 Flagler to leave the state in order to avoid testifying at 10 his trial. In addition, Trainor spoke with Becker's ex- 11 wife, who claimed that Flagler had told her that she planned 12 to leave the state from March 5, 2007 to March 12, 2007 and 13 would not talk to anyone in the District Attorney's office.
14 A. Material Witness Order and Arrest Warrant.
Trainor sought a material witness order to secure 16 Flagler's attendance at Becker's trial pursuant to New York 17 Criminal Procedure Law Article 620. He alleged that Flagler 18 had quit responding to telephone calls after January 5, 19 2007, and that she was "avoiding service of subpoena [sic] 20 for the upcoming trial." He also recounted for the court 21 his conversation with Becker's ex-wife. Trainor moved for 22 the material witness order on March 1, 2007. On the basis 3 1 of Trainor's affirmation, the County Court ordered Flagler 2 to appear at a hearing on March 7, 2007 in order to 3 determine whether she "should be adjudged a material 4 witness." The court also issued a material witness arrest 5 warrant. In doing so, the judge found "reasonable cause" to 6 believe that Flagler "would be unlikely to respond" to the 7 court's order voluntarily.
In her complaint, Flagler alleged that Trainor 9 knowingly made false statements in support of the material 10 witness order. She claimed that while she had planned to 11 leave for a vacation on March 8, 2007, Trainor knew that she 12 would return on March 11, 2007, in time for Becker's trial. 13 She asserted that despite knowing her home, work, and school 14 addresses, Trainor made no attempt to notify her about 15 Becker's upcoming trial or to subpoena her. In addition, 16 Flagler alleged that while the County Court issued the 17 material witness arrest warrant on March 1, 2007, she was 18 not arrested until March 7, 2007, one day after she called 19 Trainor and confirmed that she would testify.
B. Flagler's Arrest, the Material Witness Hearing, and the Confiscation of Flagler's Cell Phone.
Pursuant to the material witness arrest warrant, the 23 Utica Police Department arrested Flagler at her home and 4 1 transported her to the Fulton County Supreme Court for the 2 March 7, 2007 hearing. Justice Richard T. Aulisi appointed 3 a Fulton County Public Defender to represent Flagler at the 4 material witness hearing. At the hearing, Flagler told 5 Justice Aulisi that she had been cooperative with the 6 District Attorney's office and had never said she would not 7 come to court. Trainor never told Justice Aulisi about 8 Flagler's phone call from the prior day, and despite her 9 communications, Trainor recommended that the court remand 10 her into custody. After the hearing, the Fulton County 11 Sheriff's Department took Flagler back into custody and held 12 her overnight without bail. She appeared before the County 13 Court the following morning, and was released on bail.
14 The Sheriff's Department confiscated Flagler's cell 15 phone when the Department took custody of Flagler. Flagler 16 alleged that the Sheriff's Department gave her cell phone to 17 Trainor and that someone in the District Attorney's office 18 unlawfully tried to access Flagler's voicemail. Flagler 19 also alleged that Trainor has refused to return her cell 20 phone, even though Becker's conviction is final.
C. Trainor's Other Alleged Wrongful Acts.
Flagler also alleged that Trainor made a defamatory 1 statement against her by falsely proclaiming to the press 2 that she had been "hiding out," and that Trainor persuaded 3 Becker's ex-wife to record telephone calls with Flagler 4 without her consent.
D. Procedural History.
Trainor moved to dismiss Flagler's complaint solely on 7 the basis of absolute prosecutorial immunity. Mot. to 8 Dismiss 1-5, Flagler v. Trainor, No. 08-cv-138 (N.D.N.Y. 9 Jan. 14, 2009), ECF No. 10-7. The District Court granted 10 the motion, dismissing all of Flagler's federal claims and 11 declining to consider Flagler's remaining state claims 12 without a federal counterpart. Flagler, 2010 WL 3724015, at 13 *4-6. Flagler filed a timely notice of appeal, and we now 14 affirm in part and vacate and remand in part.
A. Absolute Prosecutorial Immunity.*fn2
Prosecutors are generally immune from liability under 18 42 U.S.C. § 1983 for conduct in furtherance of prosecutorial 1 functions that are intimately associated with initiating or 2 presenting the State's case. Imbler v. Pachtman, 424 U.S. 3 409, 427-28 (1976). Section 1983 immunity is grounded in 4 the prosecutor's common law tort immunity. That immunity 5 arises from the "concern that harassment by unfounded 6 litigation would cause a deflection of the prosecutor's 7 energies from his public duties, and the possibility that he 8 would shade his decisions instead of exercising the 9 independence of judgment required by his public trust." Id. 10 at 423. "[I]f the prosecutor could be made to answer in 11 court each time [an aggrieved defendant] charged him with 12 wrongdoing, his energy and attention would be diverted from 13 the pressing duty of enforcing the criminal law." Id. at 14 425. Immunity protects the proper functioning of the 15 prosecutor's office by insulating the exercise of 16 prosecutorial discretion. Kalina v. Fletcher, 522 U.S. 118, 17 125 (1997).
18 Yet absolute prosecutorial immunity is not without its 19 costs. In Imbler, the Supreme Court explained:
To be sure, this immunity does leave the genuinely 21 wronged defendant without civil redress against a 22 prosecutor whose malicious or dishonest action 23 deprives him of liberty. But the alternative of 24 qualifying a prosecutor's immunity would disserve 25 the broader public interest. It would prevent the 7 1 vigorous and fearless performance of the 2 prosecutor's duty that is essential to the proper 3 functioning of the criminal justice system.
4 424 U.S. at 427-28; see also Gregoire v. Biddle, 177 F.2d 5 579, 581 (2d Cir. 1949). Thus, while absolute prosecutorial 6 immunity may leave an injured party without a remedy, 7 society has found more benefit in insulating the exercise of 8 prosecutorial discretion.
9 That being said, the Supreme Court has clarified that 10 immunity is not a function of the prosecutor's title. 11 Kalina, 522 U.S. at 125, 127. Rather, it attaches to 12 prosecutorial functions that are intimately associated with 13 initiating or presenting the State's case. Id. Prosecutors 14 are absolutely immune from suit only when acting as 15 advocates and when their conduct involves the exercise of 16 discretion. Id. at 127. Thus, the Supreme Court has found 17 prosecutors absolutely immune from suit for alleged 18 misconduct during a probable cause hearing,*fn3 in initiating a 19 prosecution,*fn4 and in presenting the State's case.*fn5 On the 20 other hand, the Court has withheld absolute immunity for 1 conduct unrelated to advocacy, such as giving legal advice,*fn6 2 holding a press conference,*fn7 or acting as a complaining 3 witness.*fn8
The task then is to determine whether each asserted 5 wrongful act falls within the zone of Trainor's absolute 6 immunity as a prosecutor.
1. False Statements Made in Support of a Material Witness Order.
Flagler contends that by making sworn factual 10 statements in support of the order, Trainor was acting as a 11 complaining witness rather than as an advocate. In Kalina 12 v. Fletcher, the Supreme Court held that a prosecutor was 13 not absolutely immune from liability for making false 14 statements in support of an arrest warrant. There, the 15 prosecutor provided a "Certification for Determination of 16 Probable Cause" that summarized the evidence supporting the 17 arrest warrant. 522 U.S. at 121. Rather than attaching to 18 the motion an affidavit from a witness with personal 19 knowledge of facts, the prosecutor "personally vouched for 20 the truth of the facts set forth in the certification." Id.
The certification included two inaccurate factual 2 statements, id.; the charges against the defendant were 3 eventually dismissed, id. at 122. The former defendant sued 4 the prosecutor under Section 1983 "based on [the 5 prosecutor's] alleged violation of his constitutional right 6 to be free from unreasonable seizures." Id. The prosecutor 7 moved for summary judgment based on absolute prosecutorial 8 immunity. The district court denied immunity and both the 9 Ninth Circuit and Supreme Court affirmed. Id. at 122-23.
After surveying the history of prosecutorial immunity, 11 the Supreme Court recognized immunity's two important 12 functions: (1) "protecting the prosecutor from harassing 13 litigation that would divert [the prosecutor's] time and 14 attention from his official duties"; and (2) "the interest 15 in enabling [the prosecutor] to exercise independent 16 judgment when deciding which suits to bring and in 17 conducting them in court." Id. at 125 (internal quotation 18 omitted). The Court recognized that the second 19 function--insulating the prosecutor's discretion when acting 20 as advocate--was of "primary importance." Id. But sworn 21 statements in support of an arrest warrant were not 10 1 intimately associated with a prosecutor's duty to advocate.*fn9 2 Rather, offering sworn statements was an "act that any 3 competent witness might have performed." Id. at 129-30.
4 The prosecutor was acting as a complaining witness, not as 5 an advocate; "[t]estifying about facts is the function of 6 the witness, not of the lawyer." Id. at 130. The Court 7 also noted that "neither federal nor state law made it 8 necessary for the prosecutor to make [the factual 9 assertion]." Id. at 129.
10 Kalina is easily distinguishable from the case before 11 us. There are key differences between arrest warrants and 12 material witness orders. For one, in New York, only a 13 prosecutor or defense attorney can seek a material witness 14 order. N.Y. Crim. Proc. Law § 620.20(1); see also N.Y. 15 Crim. Proc. Law § 620.30(1) (requiring the "applicant" to 16 make a written, sworn application in order to commence 17 material witness proceedings; the applicant is either the 18 prosecutor or defense attorney). Further, an arrest warrant 19 is one of the first steps required to begin a criminal 1 investigation. A material witness order, in contrast, may 2 issue only when a prosecution is ready for trial.
3 Seeking a material witness order is within the 4 prosecutor's "function" as an advocate. A prosecutor 5 employs prosecutorial discretion when determining whether to 6 seek such an order. See Betts v. Richard, 726 F.2d 79, 79 7 (2d Cir. 1984)*fn10 ; Daniels v. Kieser, 586 F.2d 64, 69 (7th 8 Cir. 1978). It is an act "intimately associated" with 9 presenting the State's case. The material witness order 10 ensures the attendance of a "material" witness at trial, 11 which often makes or breaks the prosecutor's case.
Nevertheless, Flagler argues that the Third and Ninth 13 Circuits have denied absolute prosecutorial immunity for wrongdoing in connection with prosecutorial functions. 2 Flagler, however, fails to recognize that the wrongdoing in 3 those cases was either administrative in nature*fn11 or akin to 4 the function of law enforcement officers in protecting the 5 public safety by making a complaint of wrongdoing.*fn12 6 Therefore, notwithstanding Flagler's arguments to the 7 contrary, we find Trainor absolutely immune for making 8 alleged false statements in support of a material witness 9 order and warrant.
2. Alleged Defamatory Statements Made to the Press.
Flagler argues that Trainor defamed her by falsely stating to the press that she had been "hiding out" before 2 the trial. Trainor only claimed absolute immunity from 3 liability for this claim; he did not challenge the substance 4 of the pleading.
5 In Buckley v. Fitzsimmons, the Supreme Court held that 6 "statements to the media are not entitled to absolute 7 immunity." 509 U.S. 259, 277 (1993). The Court explained 8 that while absolute immunity shields statements made during 9 a judicial proceeding, it does not shield statements made 10 outside court. Id. The Court reasoned: "The conduct of a 11 press conference does not involve the initiation of a 12 prosecution, the presentation of the State's case in court, 13 or actions preparatory for these functions." Id. at 278.
14 The Court recognized that while statements to the press may 15 be an "integral part" of the prosecutor's job, the duty is 16 no different than that for other executives who deal with 17 the press and enjoy only qualified immunity. Id. Because 18 absolute immunity does not shield statements made to the 19 press, the district court erred by dismissing Flagler's 20 defamation claim on account of absolute immunity.
3. Alleged Accessing of a Person's Voicemail without Consent and Persuading Becker's Ex-Wife to Record Telephone Calls.
We have no trouble concluding that Trainor is not 5 absolutely immune from allegedly accessing, or ordering 6 someone to access, Flagler's voicemail without her consent, 7 or from persuading Becker's ex-wife to record telephone 8 calls with Flagler.*fn13 The alleged misconduct is akin to 9 investigatory acts, and absolute immunity does not shield 10 investigatory acts. See, e.g., Van de Kamp v. Goldstein, 11 555 U.S. 335, 342 (2009); Imbler, 424 U.S. at 430; Pierson 12 v. Ray, 386 U.S. 547, 557 (1967). As a result, the district 13 court erred by dismissing Flagler's claims on this ground. 14 4. Alleged Withholding/Preserving of Evidence After a 15 Criminal Prosecution Has Run its Course.
Trainor argues that by withholding Flagler's cell 17 phone, he is preserving evidence and that preservation of 18 evidence is intimately associated with presenting the 19 State's case. In Parkinson v. Cozzolino, we held that a 20 prosecutor is absolutely immune for withholding/preserving 1 evidence to be used in connection with a criminal 2 prosecution, and that immunity extends throughout a 3 subsequent appeal. 238 F.3d 145, 152 (2d Cir. 2001). We 4 made no determination, however, "as to when such immunity 5 ends." Id.
6 We recognize the inherent conflict between Flagler's 7 argument and a prosecutor's duty to defend a conviction. If 8 we agreed with Flagler, absolute immunity would end once the 9 time to appeal and collaterally attack a conviction had run. 10 But some collateral attacks, like actual innocence, have no 11 statute of limitations. And as technology advances, we 12 learn of new tests and tools that make fact finding more 13 precise - technologies once thought inconceivable. 14 Therefore, without fuller development of the issue by 15 thoughtful briefing and factual development in the district 16 court, we are unwilling to draw a line as to how long 17 absolute immunity shields a prosecutor for 18 withholding/preserving evidence.
19 Rather, we recognize that Trainor did not raise 20 Cozzolino below. We therefore vacate and remand the 21 district court's order and judgment so it may consider 22 whether Trainor is absolutely immune for preserving 16 1 evidence--Flagler's cell phone--after Becker's conviction 2 became final. Of course, the district court need not 3 address this issue if it deems summary judgment appropriate 4 on the basis of qualified immunity.
We AFFIRM the district court to the extent it found 7 Trainor absolutely immune from Flagler's claim that he 8 violated her constitutional rights by making false 9 statements in support of a material witness order. We 10 VACATE and REMAND the rest of the order and judgment because 11 absolute immunity does not immunize prosecutors from 12 liability for making defamatory statements to the press, 13 accessing a person's voicemail without consent, or 14 persuading a party to a conversation to record its contents; 15 and, the district court should consider in the first 16 instance whether Trainor is absolutely immune for continuing 17 to withhold/preserve evidence--Flagler's cell phone.
CALABRESI, Circuit Judge, concurring: 2 I agree completely with the majority opinion and join 3 it fully. I write separately because our Court has recently 4 decided Collazo v. Pagano, 656 F.3d 131 (2d Cir. 2011) 5 (another opinion with which I agree completely), whose 6 relation to this case is, I think, worth underscoring.
In Collazo, we held that claims dismissed on the ground 8 of absolute prosecutorial immunity are considered 9 "frivolous" for purposes of 28 U.S.C. § 1915(g), the 10 "three-strikes" provision.*fn1 Id. at 134. We expressly 11 limited our holding to cases in the "readily distinguishable 12 heartland of immune prosecutorial conduct that 13 [is] . . . 'intimately associated with the judicial phase of the criminal process.'" Id. n.2 (citing Burns v. Reed, 500 2 U.S. 478, 486 (1991)). We also excluded "cases in which the 3 complaint is not dismissed sua sponte pursuant to 28 U.S.C. 4 § 1915(g)." Id.
5 I write to clarify the following. A court may dismiss 6 a claim sua sponte on three grounds pursuant to 28 U.S.C. 7 § 1915(e)(2)(B): If the action is frivolous or malicious, 8 fails to state a claim on which relief may be granted, or 9 seeks monetary relief from a defendant who is immune.*fn2 The 10 last of these grounds, immunity, would be a basis for 11 dismissal under § 1915(e)(2) even if the claim in the 12 complaint were a serious one and anything but easy. In 13 other words, if a dismissal occurred pursuant to 14 § 1915(e)(2) on absolute immunity grounds, it could not, 15 without more, be per se frivolous for purposes of the 1 three-strikes determination under § 1915(g). Conversely, 2 § 1915(g)-the basis for dismissal expressly mentioned in 3 Collazo-applies only where the district court finds that a 4 prisoner previously has brought three or more frivolous 5 lawsuits. This means that a dismissal citing § 1915(g) must 6 necessarily entail a finding, whether implicit or explicit, 7 that at least three former claims were frivolous. And a 8 dismissal based on immunity will not be frivolous unless the 9 district court making the § 1915(g) determination deems the 10 former case to fall within the "distinguishable heartland of 11 immune prosecutorial conduct." Collazo, 656 F.3d at 134 12 n.2.
The case before us is a perfect example of a claim of 14 absolute immunity that, though it loses (I of course refer 15 to the portion of our opinion affirming the district court's 16 dismissal), is anything but frivolous.
17 Plaintiff-Appellant's claim that absolute immunity does not 18 apply, relies, inter alia, on the Ninth Circuit opinion in 19 Cruz v. Kauai Cnty., 279 F.3d 1064 (9th Cir. 2002), and, as 20 our opinion points out, our decision, whether or not in 21 conflict with Cruz, is at least in tension with it. To 3 1 suggest, as Appellant does, that Cruz should guide us, is 2 not frivolous and is not made frivolous by the fact that we 3 rejected the suggestion.
4 The difference between a dismissal on absolute immunity 5 grounds pursuant to § 1915(e)(2)(iii), and a dismissal as 6 the Court in Collazo required, pursuant to § 1915(g), is 7 crucial. The first necessarily allows a claimant to assert 8 that the claim was not frivolous in the circumstances of 9 that case, and, hence, does not justify a strike for the 10 purposes of the three-strikes finding. The second, as 11 Collazo held, forecloses that argument.