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Karla Giraldo v. Scott Evan Kessler

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012


September 14, 2012

KARLA GIRALDO, PLAINTIFF-CROSS-DEFENDANT-APPELLEE,
v.
SCOTT EVAN KESSLER, ASSISTANT DISTRICT ATTORNEY, BUREAU CHIEF OF DOMESTIC VIOLENCE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, KESHIA ESPINAL, ASSISTANT DISTRICT ATTORNEY, IN HER OFFICIAL CAPACITY, DEFENDANTS-CROSS-DEFENDANTS-APPELLANTS, CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, SEAN WARD, DETECTIVE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, THOMAS FITZGERALD, P.O., IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS-CROSS-DEFENDANTS, SAFE HORIZON, INC., ENIDIA SEOANE, RICHARD A. BROWN, QUEENS COUNTY DISTRICT ATTORNEY, INDIVIDUALLY AND AS THE DISTRICT ATTORNEY OF QUEENS COUNTY, NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM, INC., DAWNE KORT, M.D., SUSAN CABIBBO, R.N., DANIEL FROGEL, DR., DEFENDANTS-CROSS-DEFENDANTS-CROSS-CLAIMANTS.

Appeal from a denial of absolute prosecutorial immunity by the United States District Court for the Eastern District of New York (John Gleeson, Judge).

The opinion of the court was delivered by: Winter, Circuit Judge:

11-2367-cv

Giraldo v. Kessler, et al.

Argued: June 12, 2012

34 Before: WINTER, CABRANES, and CARNEY, Circuit Judges.

We vacate and remand.

27 Queens County Assistant District Attorneys Scott Evan 28 Kessler and Keshia Espinal appeal from Judge Gleeson's denial of 29 absolute immunity in an action brought under, inter alia, 42 30 U.S.C. § 1983. Karla Giraldo, the plaintiff-appellee, alleged in 31 her complaint that appellants' interrogation of her following the 32 arrest of her boyfriend, former New York State Senator Hiram 33 Monserrate, violated her civil rights.*fn1 We vacate and remand.

1 BACKGROUND

2 We view the facts alleged in the complaint in the light most 3 favorable to appellee. See Warney v. Monroe County, 587 F.3d 4 113, 116 (2d Cir. 2009). We also take judicial notice of 5 relevant matters of public record. See, e.g., Shmueli v. City of 6 New York, 424 F.3d 231, 233 (2d Cir. 2005); Fed. R. Evid. 201(b) 7 (permitting judicial notice of facts "not subject to reasonable 8 dispute").

9 On December 19, 2008, appellee suffered a laceration above 10 her left eye requiring twenty stitches to close. Monserrate 11 brought her to a hospital emergency room for treatment. There, 12 she was seen by defendants Dr. Kort and Dr. Frogel. Appellee 13 told them that she was injured as a result of an "accident" that 14 occurred when her boyfriend brought her a glass of water that 15 broke, causing shards to fly and cut her forehead. Doctors Kort 16 and Frogel suspected domestic abuse and contacted the New York 17 City Police Department. Appellee also told Nurse Susan Cabibbo 18 that she was not in need of protection and that she was not 19 involved in an altercation. The nurse nevertheless contacted the 20 police and informed them that appellee was a victim of domestic 21 violence.

22 Soon afterward, Police Officer Fitzgerald and another 23 unidentified officer arrived at the hospital and interviewed 24 Monserrate and appellee separately. Officer Fitzgerald then 25 arrested Monserrate. After the completion of appellee's 3 1 treatment, Kort and Frogel did not allow appellee to leave and 2 had her transported to the 105th Precinct where she was kept for 3 more than five hours. At the precinct, Detective Ward 4 interrogated appellee regarding her injury, and she consistently 5 responded that it was the result of an accident. Detective Ward 6 then "ordered" appellee to sign a statement accusing Monserrate 7 of assaulting her, but she refused. Appellee continued to be 8 interrogated by police personnel.

9 After the police interrogation, appellee was taken against 10 her will to the Queens District Attorney's office, where she was 11 interviewed by appellants. Appellee states she told appellants 12 that she did not want to talk, but that they nevertheless 13 continued to interrogate her. After two hours of interrogation 14 by appellants, appellee was released.

15 Meanwhile, on the day of the injury and arrest, Monserrate 16 was arraigned and bail was posted. See People v. Hiram 17 Monserrate, Docket Number 2008QN067420 (felony complaint filed 18 and dated December 19, 2008, charging two counts of felony 19 assault in the second degree and one count of misdemeanor 20 criminal possession of a weapon in the fourth degree; Monserrate 21 posted bail on December 19, 2008); see also Shmueli, 424 F.3d at 22 233 ("The New York State . . . prosecution of Shmueli is a matter 23 of public record, of which we take judicial notice."); cf. 24 Warney, 587 F.3d at 118 (taking judicial notice of federal habeas 25 corpus petition on appeal).*fn2

1 Appellants moved to dismiss the complaint on various 2 grounds, including absolute immunity. The district court denied 3 the motion. On the merits, the court held that appellee's 4 allegations of being "unlawfully detained, held against her will 5 and maliciously interrogated" by appellants in violation of her 6 right to be free from unreasonable seizures stated plausible 7 Section 1983 claims. The court also held that appellee could 8 bring claims against appellants in their individual capacities, 9 but that she could not proceed against them in their official 10 capacities because doing so would constitute an impermissible 11 action against the Queens District Attorney's office. Finally, 12 on the issue before us, the court rejected appellants' argument 13 that absolute immunity shielded them from liability, finding that 14 their "conduct in this case [was] more closely linked to the 15 prosecutor[s'] investigative duties [rather] than to [their] role 16 as government litigator[s] . . . ."

17 This appeal followed.

18 DISCUSSION

19 This is, of course, an interlocutory appeal. However, 20 because prosecutorial immunity is intended to shield prosecutors 21 from legal proceedings, as well as liability, a denial of 22 immunity is final as to the need to proceed with the action and, 23 at least as to matters of law, is reviewable under the collateral 24 order doctrine. See, e.g., Hill v. City of New York, 45 F.3d 25 653, 659-60 (2d Cir. 1995); Kaminsky v. Rosenblum, 929 F.2d 922, 26 925-26 (2d Cir. 1991); see also Nixon v. Fitzgerald, 457 U.S. 1 731, 742-43 (1982) (jurisdiction to review denial of absolute 2 immunity under the collateral order doctrine if the denial 3 involves only a question of law). We review such issues of law 4 de novo. See Warney, 587 F.3d at 120.

5 Absolute immunity bars a civil suit against a prosecutor for 6 advocatory conduct that is "intimately associated with the 7 judicial phase of the criminal process." Imbler v. Pachtman, 424 8 U.S. 409, 430 (1976). This immunity attaches to conduct in 9 court, as well as conduct "preliminary to the initiation of a 10 prosecution and actions apart from the courtroom." Id. at 431 11 n.33.

12 An official claiming immunity bears the burden of showing 13 that the particular immunity claimed applies. See Burns v. Reed, 14 500 U.S. 478, 486-87 (1991). In determining whether absolute 15 prosecutorial immunity attaches, we apply a "functional 16 approach." Hill, 45 F.3d at 660. "Prosecutorial immunity from 17 § 1983 liability is broadly defined, covering 'virtually all 18 acts, regardless of motivation, associated with [the 19 prosecutor's] function as an advocate.'" Id. at 661 (quoting 20 Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). The Supreme Court 21 has explained that a prosecutor's functions preliminary to the 22 initiation of proceedings include "whether to present a case to a 23 grand jury, whether to file an information, whether and when to 24 prosecute, whether to dismiss an indictment against particular 25 defendants, which witnesses to call, and what other evidence to 26 present." Imbler, 424 U.S. at 431 n.33.

1 Analysis of a claim of immunity requires us to view the 2 relevant circumstances as would a reasonable official in the 3 claimant's position.*fn3 See Hill, 45 F.3d at 662 ("[T]he 4 'functional' test for absolute immunity is an objective one; it 5 does not depend upon the state actor's subjective intent."); 6 Dory, 25 F.3d at 83; see also Burns, 500 U.S. at 487-88 7 (allegations that prosecutor "deliberately misled the Court" 8 during preliminary hearing were deemed irrelevant where the 9 prosecutor's objective act -- presenting evidence at the hearing 10 -- enjoyed absolute immunity). The relevant question, therefore, 11 is whether a reasonable prosecutor would view the acts challenged 12 by the complaint as reasonably within the functions of a 13 prosecutor. If the generic acts are within those functions, 14 absolute immunity applies to protect the prosecutor even in the 15 face of a complaint's allegations of malicious or corrupt intent 16 behind the acts. See id. at 489-90. Otherwise, the absolute 17 immunity would not be absolute.

18 Under a functional approach, actions are not shielded by 19 absolute immunity merely because they are performed by a 20 prosecutor. "A prosecutor's administrative duties and those 21 investigatory functions that do not relate to an advocate's 22 preparation for the initiation of a prosecution or for judicial 23 proceedings are not entitled to absolute immunity." Buckley v. 24 Fitzsimmons, 509 U.S. 259, 273 (1993). In Buckley, the plaintiff 1 sought damages from prosecutors for, inter alia, allegedly 2 "fabricating evidence during the preliminary investigation of a 3 crime." Id. at 261. In holding that the prosecutors were not 4 entitled to absolute immunity, the Court stated that a prosecutor 5 "neither is, nor should consider himself to be, an advocate 6 before he has probable cause to have anyone arrested." Id. at 7 274.

8 "[A]ctions taken as an investigator enjoy only qualified 9 immunity." Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000). 10 "Although all investigative activity could be considered in some 11 sense to be 'prepar[ation] for the initiation of judicial 12 proceedings,' the Supreme Court has sought to draw a line between 13 those preparatory steps that a prosecutor takes to be an 14 effective advocate of a case already assembled and those 15 investigative steps taken to gather evidence." Smith v. 16 Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley, 509 17 U.S. at 273). The Supreme Court "has identified 'evaluating 18 evidence and interviewing witnesses' as falling on the absolute 19 immunity side of the line, leaving 'searching for the clues and 20 corroboration' that might lead to a recommendation for an arrest 21 on the qualified immunity side." Id. at 94 (quoting Buckley, 509 22 U.S. at 273).

23 Therefore, not every interview, interrogation, or other act 24 by a prosecutor with the potential of revealing new information 25 is an investigative act entitled to only qualified immunity. See 26 Warney, 587 F.3d at 124 (prosecutors' actions to deal with post- 27 trial initiatives challenging a criminal conviction, even though 8 1 they could be seen as investigative and administrative, were 2 "also integral to the overarching advocacy function"). Good 3 prosecutors may -- usually should -- perform acts reasonably 4 characterized as investigative at all phases of a criminal 5 proceeding. The investigative acts that are entitled to only 6 qualified immunity are those undertaken in the phase of law 7 enforcement that involves the gathering and piecing together of 8 evidence for indications of criminal activities and determination 9 of the perpetrators. Smith, 147 F.3d at 94.

10 In contrast, investigative acts reasonably related to 11 decisions whether or not to begin or to carry on a particular 12 criminal prosecution, or to defend a conviction, are shielded by 13 absolute immunity when done by prosecutors. To be sure, as the 14 Supreme Court cautioned in Buckley, even the presence of probable 15 cause "does not guarantee a prosecutor absolute immunity from 16 liability for all actions taken afterwards." 509 U.S. at 274 17 n.5. Such acts are shielded by absolute immunity only when they 18 are of a kind reasonably related to the ordinary functions of a 19 prosecutor with such probable cause.

20 Viewed through the eyes of a reasonable prosecutor, 21 appellants' acts in the present case were well within their 22 legitimate functions as prosecutors. Monserrate had been 23 arrested prior to appellants' interview of appellee. Once the 24 arrest took place, legal decisions at the core of the 25 prosecutorial function -- pursuit of the charges, arraignment, 26 bail, etc. -- had to be made by appellants and made quickly. The 27 interview of appellee was clearly in a "pending or in preparation 9 1 [of] a court proceeding in which the prosecutor acts as an 2 advocate." Warney, 587 F.3d at 123.

3 Appellee was obviously an important witness with regard to 4 the proceeding against Monserrate. That she claimed her injuries 5 resulted from an accident hardly weighed against interviewing 6 her. Viewing the circumstances objectively, her claim that her 7 injuries were the result of an accident might well cause a 8 reasonable prosecutor to believe that interrogation was even more 9 necessary than would have been the case in more common 10 circumstances. A reasonable prosecutor easily could -- should -- 11 have viewed a first-hand interview and personal weighing of the 12 credibility of appellee's self-propelled-shattering-glass story 13 as necessary. While questioning an important witness may 14 accurately be described as investigative, appellants' interview 15 was an integral part of appellants' advocatory function as 16 prosecutors protected by absolute immunity. See, e.g., Imbler, 17 424 U.S. at 430.

18 Because the objective circumstances triggered absolute 19 immunity, appellee's allegations that the interview was in 20 furtherance of a conspiracy to "create statements that would 21 falsely implicate [Monserrate] of a crime and falsely state 22 comments that were allegedly made by [appellee]" are irrelevant. 23 See, e.g., Hill, 45 F.3d at 662.

1 CONCLUSION

2 For the foregoing reasons, the order of the district court 3 dated May 27, 2011, denying absolute immunity to the appellants 4 is vacated and remanded for proceedings consistent with this 5 opinion.


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