Kalina v. Fletcher – Oral Argument – October 07, 1997

Media for Kalina v. Fletcher

Audio Transcription for Opinion Announcement – December 10, 1997 in Kalina v. Fletcher

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William H. Rehnquist:

We’ll hear argument next in Number 96-792, Kalina v. Fletcher.

Mr. Maleng, you may proceed whenever you’re ready.

Norman Maleng:

Mr. Chief Justice and may it please the Court:

This case presents the important question of whether a prosecutor is entitled to absolute immunity when she causes an arrest warrant to issue in conjunction with her filing of criminal charges against an individual.

In this case, Deputy Prosecutor Lynne Kalina reviewed and professionally evaluated a completed police report, determined that a burglary charge would be filed, and then prepared and filed an Information, a motion requesting the issuance of an arrest warrant, and a certification which summarized the evidence for the court.

In Imbler, Buckley, and Burns, this Court set forth a workable approach to determine which functions of a prosecutor are entitled to absolute immunity.

Absolute immunity applies when the challenged activity is undertaken in the prosecutor’s role as advocate for the State, is intimately associated with the judicial phase of the criminal process, and is connected with the initiation and conduct of a prosecution.

William H. Rehnquist:

Mr. Maleng, is the crucial thing here the Information or the application for the arrest warrant?

What was the basis for the action against the officials?

Norman Maleng:

It was a burglary charge, Mr. Chief Justice, and as a part of the charging package is, the deputy prosecutor prepared an Information which was the initial pleading in a prosecution, also requested the issuance of an arrest warrant, and provided the certification to the court to meet the Gernstein requirement.

Each of the factors which–

Sandra Day O’Connor:

Well, in Washington could a police officer have obtained the arrest warrant?

Norman Maleng:

–Justice O’Connor, the police officer could not have obtained the arrest warrant.

Sandra Day O’Connor:

So Washington is different from most other States in that regard?

Norman Maleng:

It is different than many States and, of course, there’s a diversity of procedures throughout the United States, but in the State of Washington is that an arrest warrant cannot be issued unless it’s in connection with the filing of a–

Sandra Day O’Connor:

In a State where a police officer could obtain the arrest warrant, even though the prosecutor filed the Information against a defendant, would the police officer have absolute immunity under our case law for a false statement in getting the arrest warrant?

Norman Maleng:

–No, Justice O’Connor, the police officer would not have absolute immunity.

Sandra Day O’Connor:

No.

We would look at the function, this Court said.

Norman Maleng:

We would look to the function, but–

Sandra Day O’Connor:

And what would be the function if the police officer were getting it?

Norman Maleng:

–If a police officer was obtaining the arrest warrant it would be the part of the completion of his investigation in preparation for handing the case over to the prosecutor.

I might just–

Sandra Day O’Connor:

Now, do you say that the function is different in Washington, where the prosecutor gets the arrest warrant?

Norman Maleng:

–The principles that we are advocating–

Sandra Day O’Connor:

Or is it the same function?

I don’t know how you analyze what the function is when the… in this case, where it is the prosecuting attorney who gets the arrest warrant.

How is that different from where the police officer does?

Norman Maleng:

–The analysis is really the same in this sense.

It is part of the initiation of a prosecution by a prosecutor, and as a part of that initiation, a prosecutor, as recognized in the Buckley case, can take a whole series of preliminary acts leading up to that initiation.

Norman Maleng:

In our State, one of those preliminary acts that goes together with the Information is the preparation of a certification.

In other States, and let’s say a grand jury State, is that a police office may obtain an arrest warrant and that would be different than occurs in our State, but the police officer is performing a different function.

The principal in Imbler protects that sensitive decision for prosecutors to initiate a prosecution and to conduct a prosecution.

William H. Rehnquist:

If you simply have an Information filed and don’t seek an arrest warrant, is this certification necessary–

Norman Maleng:

No–

William H. Rehnquist:

–under Washington law?

Norman Maleng:

–Under our State procedures, at least in King County’s as a local rule, is that we are required to provide a summary, a brief summary of the facts for the court, and so our certification really meets two purposes.

One is the Gernstein requirement, but in King County we have a local rule that requires us to provide a brief summary to the court.

William H. Rehnquist:

But is it possible that in some cases in King County there would be an Information filed but not an effort to immediately arrest the person?

Norman Maleng:

In the State of Washington as a matter of routine, any time that we file an Information in a felony case is that we request the issuance of an arrest warrant.

The next step that is taken, if it’s a less serious type of a felony offense, is that a series of letters is sent out to the defendant, which occurred in the case before the Court, requesting their voluntary appearance, and if that occurs, the case proceeds.

William H. Rehnquist:

So here, letters were sent before the arrest warrant was issued requesting the defendant to surrender?

Norman Maleng:

After the arrest warrant was ordered by the Court but before it was actually served there was several letters that were sent to the defendant, but they went to the wrong address, and did not reach the defendant, and when that occurred the arrest warrant was served.

William H. Rehnquist:

Is… does the prosecutor’s description or summary that you just explained have to be under oath?

Norman Maleng:

The certification, yes, does need to be under the oath to meet the Gernstein requirement, is that we really adopted this procedure in the State of Washington following the Gernstein decision, and it not only meets the requirements of Gernstein, but we believe that it is a better practice to follow to have the prosecutor prepare this document, and the reason is, is that I think it really acts as a citizen’s buffer, is that a prosecutor, by preparing the certification, I think provides for a more thorough evaluation of the police file.

You’re not just reading through it, but you’re required to prepare a summary.

And it’s also a benefit to the court, because it provides a more orderly flow of information to the court, rather than getting it from, let’s say in King County, where there’s 26 different police jurisdictions.

David H. Souter:

Mr. Maleng, is it the case here that the certification could have been executed by a police officer?

Norman Maleng:

There’s no… yes.

There’s no requirement in the State of Washington that it be prepared by a prosecutor.

It could have been prepared by a police officer, but it is the standard practice in the 39 counties in the State of Washington and really for the reasons that I advanced.

David H. Souter:

Right.

I understand that.

If a police officer did prepare a certification, I take it on your view the police officer would also be subject to an absolute immunity.

Norman Maleng:

Under those circumstances the… if it was prepared by a police officer, he would not have absolute immunity unless he was–

David H. Souter:

How is that possible under what I understand to be the functional approach, and the functional approach that your argument assumed, and that was that it was the function, not the officer, with respect to which the immunity decision is made?

Norman Maleng:

–First is that, unlike a prosecutor, is the police officer wouldn’t meet the threshold question of immunity analysis, and that is that there’s no common law tradition of absolute immunity for a police officer.

David H. Souter:

Well, but he’s performing the same function and, I mean, the theory of the way the common law practice is applied to immunity doctrine is, we look to the function and see whether that function at common law was subject to an immunity.

Now if, on that standard, the prosecutor gets absolute immunity, then it’s… I think it necessarily follows that the police officer would get absolute immunity.

Norman Maleng:

Justice Souter, they’re performing different functions.

Norman Maleng:

The–

David H. Souter:

Well, I don’t… I guess, explain that to me.

I don’t see why, because I thought we judged… we judge the function without respect to the officer, so why are they different?

Norman Maleng:

–This Court has set forth the functional test and said that we look to the nature and function of the act being performed, and not just to the act itself.

David H. Souter:

And the nature and function of the act here is the provision of information under oath, with whatever probability of soundness that oath carries, on the basis of which a magistrate is going to issue an arrest warrant.

That function, it seems to me, is exactly the same whether it’s performed by a police officer or whether it’s performed by a prosecutor.

Norman Maleng:

It is a different function if it’s performed by a police officer, as a police officer can’t move from the “investigative function” over to the prosecutorial advocatory function, namely–

Ruth Bader Ginsburg:

Are you saying that a police officer never has absolute immunity because he’s always engaged in investigating and never crosses the divide into prosecuting, so that the same… the very same act which we all agree is involved here, the same act is characterized one way if it’s done by a police officer, a different way if it’s done by the prosecutor, because the prosecutor does prosecute, and police officers don’t prosecute?

Norman Maleng:

–A police officer, Justice Ginsburg, would have absolute immunity if they were functioning as a witness.

I believe a police officer also, if he was attached to a prosecutor’s office and was acting under the direction of a prosecutor and acting as the agent, yes, they would have absolute immunity in that circumstances, but generally no, because they are performing a different function.

Ruth Bader Ginsburg:

But how does the same act, swearing out this warrant application, become prosecutorial if done by one person but merely investigatory if done by another?

Norman Maleng:

This Court has indicated also, I believe, is that you can have a situation in which prosecutors do a whole series of preliminary acts in conjunction with the filing of criminal charges.

Now, some of those acts can be performed by someone other than a prosecutor, for example, a police officer questioning witnesses, visiting a crime scene, signing a certification.

But when those functions are performed by a prosecutor, the full force and reasons for absolute immunity apply.

The difference between that and the police officer is that the police officer can’t be a part of the function that this Court has protected, and the function that is being protected is the sensitive decision to initiate a prosecution which can involve, as the Buckley case said and this Court reaffirmed, can have a whole series of things associated with that, so it is really a different function.

David H. Souter:

Mr. Maleng, I think you’re doing… making the following assumption in your argument, and I’d like you to comment on it.

The issue, I guess… one way to put the issue here is, how do we characterize this function of providing the certification?

Do we characterize it in a very narrow and specific sense of providing the certification, period… we carve that out… or do we characterize it as part of a broader process, the process of initiating a prosecution?

If we characterize it in the narrow sense, merely providing, in effect, evidence under oath, then there doesn’t seem to be anything peculiar about that function to prosecutors.

Police officers can do it.

If we characterize it in the broad sense and say, oh, it’s just a part of initiating a prosecution, then we’re talking about a function that prosecutors do and that prosecutors, generally speaking, get absolute immunity for, and it seems to me that when we ask you the question, how do you characterize, you shift back and forth, and I don’t think we… I mean, we really can’t shift back and forth.

I would have thought that the reason for characterizing it narrowly was the Malley case.

In the Malley case, generally speaking it’s prosecutors that get search warrants, but witnesses who come forward to provide evidence for those search warrants don’t get absolute immunity, and I would have thought that there was an analogy there to this situation.

Prosecutors get arrest warrants, but prosecutors don’t necessarily provide evidence.

So it would have seemed to me that the Malley case was a reason to characterize the function narrowly as presenting evidence, as opposed to characterizing the function broadly as just a little part of going after or getting a search warrant and starting a prosecution.

Is my argument wrong about the application of Malley in deciding whether you take the narrow view or the broad view?

Norman Maleng:

Justice Souter, I think you’ve really raised the issue before the Court, and that is whether you take the broad view or the narrow view.

I think that what the Court was indicating in the Malley case is expressing also a concern in making incognizance comparisons between the activities of police officers and the activities of prosecutors, and shows that there’s a dramatic difference between those type of activities.

David H. Souter:

But Malley took the narrow view on the way you and I are using the terms, didn’t it?

Norman Maleng:

Malley took the view that a police officer cannot be held to be analogous to a prosecutor.

David H. Souter:

Right, but the Malley case said, when you’re getting a search warrant, which is essentially a prosecutorial kind of function, the witness, the police witness does not get an absolute immunity, and it seems to me there’s an analogy here.

Prosecutors initiate prosecutions.

They get the official ball rolling, and one incident of that is getting the arrest warrant, but it’s the provision of evidence on the basis of which the arrest warrant issues that seems to be analogous to the provision of evidence on the basis of which the search warrant issues, so it seems to me that Malley took the narrow view, and my question is, why shouldn’t we, for consistency reasons, take the narrow view here?

Norman Maleng:

What the Court indicated, Justice Souter, in the Malley case is that the police officer in that situation was one step removed, really, from the initiation of a prosecution, and was really not intimately associated with the judicial phase of the criminal process, and that’s true throughout the whole activities, because, as I indicated, what the Court was seeking to do in the Imbler case is to protect the sensitive decision to prosecute, to initiate a prosecution, and the Court in the Buckley cases reaffirmed the fact that a prosecutor may undertake a whole series of preliminary acts in conjunction with the initiation of that prosecution.

David H. Souter:

But prosecutors are not characteristically witnesses.

Norman Maleng:

In the State of Washington, it is the practice that we follow, but Ms. Kalina was not a testifying or complaining witness in this case, is that her certification specifically disclaimed the role of being a testifying witness.

She did not purport to offer first-hand knowledge.

William H. Rehnquist:

How did she disclaim it?

Norman Maleng:

In the joint appendix on page… which is in the joint appendix on page–

John Paul Stevens:

19, I think.

Norman Maleng:

–19, it indicates at the beginning that Lynne Kalina is a deputy prosecutor and is familiar with the police report, and investigation conducted in the Seattle Police Department case, that this case contains the following upon which the motion for the determination of probable cause is made.

Anthony M. Kennedy:

She goes on to sign it under penalty of perjury, which I understand she’s not required to do, or correct me if I’m wrong.

Norman Maleng:

She is required to sign it under oath for purposes of meeting the Gernstein principle, but the fact that she does or doesn’t sign shouldn’t be the factor that determines whether absolute immunity applies or not.

John Paul Stevens:

Are there other situations–

–But you know, there’s a sentence in her… excuse me.

There’s a sentence in her certification that purports to be a statement of fact.

The defendant, Rodney Fletcher, has never been associated with the school in any manner and did not have permission to enter the school.

She states that as a fact, not as… that’s not a fact that would necessarily–

Norman Maleng:

There was an affidavit, Justice Stevens, in the file from the principal that Mr. Fletcher had no association with the school, and that was the–

John Paul Stevens:

–But the person to who… who issued the warrant relied on that as a statement of fact by the person who signed the certificate.

Norman Maleng:

–That is correct.

John Paul Stevens:

And that was an inaccurate statement purporting to be given by her own… you see, she… would let the reader think she’s saying she knew that.

Norman Maleng:

It would have been preferred if she’d made a reference to the affidavit.

Anthony M. Kennedy:

Well, that may be what this whole case is about.

–In other words, she can say, consistently with your procedure, I have reviewed the police report and, based on the police report, I believe the facts to be as follow… the following, and then sign it under penalty of perjury?

Norman Maleng:

Yes.

Anthony M. Kennedy:

That suffices?

Norman Maleng:

Yes.

David H. Souter:

And if that were done, would there be probable cause, a basis for probable cause within the meaning of the Fourth Amendment?

Norman Maleng:

We believe that there is a probable cause–

David H. Souter:

No, but I mean, on that theory the prosecutor comes up and says, look, I really don’t know anything about this, but these people out here are telling me that it is so, and I’m not warranting to you that they’re right.

I’m just telling you what I’ve got in the file.

Would that be a sufficient predicate for probable cause for Fourth Amendment purposes?

Norman Maleng:

–Under our procedures is that she’s stating that she’s familiar with the report, and that she–

David H. Souter:

Well, but the magistrate has got to make… whoever issues the warrant–

Norman Maleng:

–Yes.

David H. Souter:

–has got to make a determination of fact.

Can a magistrate make a determination of fact sufficient for constitutional purposes when the only thing the magistrate has before him is a statement from somebody saying, I really don’t know anything about this, but there are some people out there who happen to think the following propositions are true.

Would that be enough for the Fourth Amendment?

Norman Maleng:

Yes, Justice Souter, because under… you can meet the Gernstein requirement with hearsay evidence, and that is the character of the–

David H. Souter:

Yes, but when you meet it with hearsay evidence you in effect are warranting that you believe the hearsay is correct, and that there is a sufficient basis for doing it, and it seems to me the prosecutor can’t have it both ways.

The prosecutor can’t say, look, I’m not a witness here, therefore I get absolute immunity for whatever’s done, and at the same time satisfy Fourth Amendment standards for providing evidence on the basis of which probable cause is found by an independent magistrate.

I don’t see how you can have it both ways.

Norman Maleng:

–Trial lawyers and prosecutors routinely make factual representations to the court, and they’re under high duty to tell the truth whether they are sworn or not sworn.

William H. Rehnquist:

Thank you, Mr. Maleng.

Ms. Millett, we’ll hear from you.

Patricia A. Millett:

Mr. Chief Justice, and may it please the Court:

Justice O’Connor and Justice Souter both asked the critical question in this case, and that is, how we define the function that is at issue.

We believe it’s defined as it was in Malley, and that is the function of seeking an arrest warrant, not simply the signing of a certification.

What is critical in this case, and is a critical distinction from Malley, is the function of seeking an arrest warrant in conjunction with the filing of criminal charges against an individual.

In Malley, the police officer sought the arrest warrant without the involvement of a prosecutor long before any indictment process had started by a prosecutor.

There was no prosecutorial decision.

In that sense, the criminal judicial process had not yet been invoked by the Government, and that is the critical distinction in this case in our opinion.

The reason–

John Paul Stevens:

Would it be the same case if she had filed a certification just as a lawyer but not sworn to anything, and then the magistrate had said to her when she appeared in court, I’d like to know whether the defendant had any access to the property before, do you have a witness who can testify to that, and she had responded, yes, and then he swore her as a witness and she said exactly what she said here.

Would she be immune?

Patricia A. Millett:

–We believe that she would get absolute immunity for statements in court, whether it would be considered prosecutorial immunity or witness immunity under Burns v. Reed and Briscoe v. LaHue.

It may not satisfy the Fourth Amendment, but, of course, the Fourth Amendment violation does not strip one of immunity, else it would be no immunity at all.

John Paul Stevens:

Do you think the witness immunity in the context of testimony at trial applies to any sworn statement in support of an affidavit for a search warrant?

Patricia A. Millett:

I think it depends… arrest warrant.

Patricia A. Millett:

I think–

John Paul Stevens:

Arrest warrant.

Either one, right.

Patricia A. Millett:

–a search warrant may be much further away from the criminal judicial process, but once the process has been initiated by the Government, as it has here, or triggered as it is in the Federal system, that as written or… whether a statement is written or said in court should not make a functional difference for purposes of absolute immunity, so we actually believe that had a police officer signed it or, for example, the suspect information report that was also filed with the Information and request for arrest warrant here would merit absolute immunity.

John Paul Stevens:

Well, your view, then… I want to be sure I understand.

Your view is, even if this had been signed by a police officer, there would be immunity.

Patricia A. Millett:

It would.

The police officer probably wouldn’t be called prosecutorial immunity, but it would be the traditional common law immunity for affidavits.

John Paul Stevens:

So you’re relying not on prosecutorial immunity but witness immunity as your basic position.

Patricia A. Millett:

Well–

John Paul Stevens:

That that applies in this context.

Patricia A. Millett:

–If it were a police officer, the label might be witness… I’m not sure if absolute immunity attaches, or whether the exact label matters, but what’s–

John Paul Stevens:

Well, it matters a great deal, I think.

Patricia A. Millett:

–All right.

John Paul Stevens:

Because under your theory here it really doesn’t matter whether she’s a prosecutor at all, because you’re suggesting, if I understand you correctly, that any affidavit, any person who makes an affidavit in support of an arrest warrant is entitled to absolute immunity.

Patricia A. Millett:

Two things.

One, if that had been filed at the initiation or onset of the formal procedures by the Government–

John Paul Stevens:

At the time you file an Information and so on–

Patricia A. Millett:

–Right, and the reason I’m equivocating somewhat about a prosecutor here is just because I think that she was performing a hybrid function here.

If, instead, Ms. Kalina had simply been a witness at a barroom fight–

John Paul Stevens:

–I understand, but I’m asking to the extent that she’s performing the half of the hybrid that was–

Patricia A. Millett:

–Mm-hmm.

John Paul Stevens:

–testimonial rather than a lawyer presenting a case to a judge.

That half you say is equally entitled to immunity under the witness immunity doctrine.

Patricia A. Millett:

Under witness or, one wants to call it affidavit immunity.

John Paul Stevens:

So it doesn’t matter whether she’s a prosecutor or a member of the mafia or a police officer, she’s still entitled to–

Patricia A. Millett:

It would matter for some things, but right, certainly for purposes of whether absolute immunity attaches, but I think the reasoning here is a little more complicated, because… and one of our concerns in this case–

Ruth Bader Ginsburg:

–Absolute immunity but not perjury, would there be, or just absolute immunity from a 1983 suit, or–

Patricia A. Millett:

–From civil liability damages.

Certainly, no one is pretending that absolute immunity gives… even judges don’t get it from criminal prosecutions or perjury charges, or–

Ruth Bader Ginsburg:

–Do I understand that you are drawing a straight time line?

You are saying yes, under Malley it doesn’t matter who the actor is, it’s the function, so you are saying… which I didn’t understand from the brief… that whether it’s a police officer or prosecutor, once it’s the prosecution is being put before the court, anybody who signs this application gets absolute immunity.

Patricia A. Millett:

–I believe–

Ruth Bader Ginsburg:

But if it’s removed, it’s before the prosecutor has decided whether there’s going to be a criminal case, then it’s only qualified whoever that–

Patricia A. Millett:

–I… taking the first part of your question, I believe the time line is absolutely critical for purposes of deciding whether… is a critical factor in functional analysis, and yes, it’s very relevant here, because the time line… it’s not so much a date time line, but it’s an initiation of the judicial process, which is exactly what the purposes of immunity doctrine are supposed to cover.

I think before actual initiation of a criminal prosecution or a criminal proceedings, say if there was a search warrant back at the investigatory stage, it’s a harder question, because in one sense any time a prosec… and this is what the Court noted in Burns v. Reed.

Any time a prosecutor is coming to a court and presenting information to the court to provide the basis for a judicial action, that that should merit absolute prosecutorial immunity.

You’re acting in an advocatory role, and the reason we give immunity is to protect the process itself, the ability of the court to collect information and make the decisions necessary in that case.

So it may be a little bit harder when we’re… the further we get away from the initiation of the criminal process, the harder the question is.

We concede that.

But you would still need to consider the important goal of absolute immunity to allow the judicial system to receive information, however delivered, whether one thinks it’s a proper way or improper, ethical or unethical, whatever mistaken… but the important thing is that the process be protected, and that’s what we think absolute immunity would protect in this situation.

David H. Souter:

–Well, as you rightly say, or rightly indicate, I mean, the issuance of a search warrant is the beginning of a judicial proceeding, too, and I assume that your argument assumes that there is a historic… given the way we go about the immunity question that there is a basis in historical practice for distinguishing between the immunity that seems to be implied by the initiation of the one judicial process, search warrants, and the other judicial process, arrest warrant and filing of charges.

Is there, and where would I find the historical basis for drawing the line where you would have us draw it?

Patricia A. Millett:

The closest, strongest case for the common law precedent for immunity in this context which we think is on fours with this situation is a case, Kitler v. Kelsh, which is cited I believe on page 19 of our brief, and was cited by this Court in Imbler.

And there what you had was a prosecutor who sought an arrest warrant, swore out a complaint, and in that context, from the description in the case, the complaint was not only legal claims but also factual claims and, in fact, when you look at the dissent in that case, the dissent advocated drawing the exact line that respondents propose here, and that is that you get absolute immunity for filing the complaint and seeking the arrest warrant but not for the factual assertions.

Antonin Scalia:

What about the other side of the–

–That had nothing to do with functional distinctions.

The common law distinction was between giving evidence and initiating a prosecution.

There was civil liability for wrongful initiation of a prosecution.

There was no civil liability for testimony.

Patricia A. Millett:

Well, I think–

Antonin Scalia:

And that’s the explanation of that case, not the functional distinction that our cases have, I think, mistakenly applied, mistakenly if we think we’re tracking what the common law was.

Patricia A. Millett:

–Well, I think it… there’s more than sort of two factors coming together.

There’s also the question of whether it was private or a public prosecutorial decision that was being made.

For example, the complaining witness cases that are cited by this Court in the Malley case all involved private persons, and so there’s an entirely separate argument for why absolute immunity did not attach to that, and the–

David H. Souter:

It’s the implication of what you’re saying that Malley was wrongly decided.

Patricia A. Millett:

–No.

The implication is that Malley was different, because the police officer there was not involved with the prosecutor in a prosecutorial decision to initiate criminal proceedings.

The police officer was more analogous to a private complaining witness than we have here, where Ms. Kalina, or the police officer, or whomever is signing the affidavit, is affiliated with the actual onset of judicial proceedings, and it is the onset of judicial proceedings and the provision of information to the court for that ongoing process that is critical.

And one of the reasons it’s critical is, again, unlike the police officer in Malley v. Briggs, a prosecutor in this context is going to have ongoing responsibilities in the case and ongoing duties that will be supervised and protected by the court, and the defendant will also have those protections.

David H. Souter:

Would your argument be different if we were dealing with a State in which the historical practice had been traditionally that the… what is called the certification here, the statement under oath about fact, was given by police officers and investigators as opposed to prosecutors?

Would your argument be different then, or would your conclusion be different?

Patricia A. Millett:

What is critical is whether it is the initiation… whether that would be combined with a prosecutorial decision to, as here, initiate a criminal prosecution.

Who signs it?

As I said, we think the–

David H. Souter:

If so, the witness would get the immunity?

Patricia A. Millett:

–Yes, whether it would be called prosecutorial immunity or not.

Thank you–

William H. Rehnquist:

Thank you, Ms. Millett.

Patricia A. Millett:

–Mr. Chief Justice.

William H. Rehnquist:

Mr. Ford.

Timothy K. Ford:

Thank you, Mr. Chief Justice, and may it please the Court:

Let me begin by answering a couple of questions that I don’t think got answered.

One is, our claim is based exclusively on the fact that Rodney Fletcher was arrested, that his person was seized without probable cause, and that has been our position from the beginning.

The focus of this is on the certification that made it possible, both under the Federal Constitution and Washington Criminal Rule 2.2, for an arrest warrant rather than a summons to issue.

Another question I’d like to point out is Washington law does provide for summons procedures in felony cases, nonseizure-type documents.

William H. Rehnquist:

So you would not have made this claim if there had been no actual arrest.

Even though the arrest warrant or the certification might have been… it’s not in the nature of a defamation claim.

Timothy K. Ford:

It is not in the nature of a defamation claim, Mr. Chief Justice.

It is in the nature of a false arrest claim, just as the Malley case was, and, of course, under the Albright case there’s considerable controversy at least over whether you even have a 1983 claim if you are only hailed into court by summons, and certainly Mr. Fletcher’s damages would be very different if they existed at all.

The next question, I’d like to answer Justice O’Connor’s question about whether police officers can issue these… can swear in support of arrest warrants, and they certainly can, and I think it is… actually I would differ with Mr. Maleng with regard to whether, under Washington law, a police officer could obtain an arrest warrant without the interposition of a prosecutor.

Under our justice court rules, or lower court rules, Washington has a procedure where the prosecutors have begun to file direct in superior court Informations, felonies without going through preliminary hearings in the lower courts.

In our lower courts, the district courts and municipal courts, we have a criminal rule for the courts of limited jurisdiction, 2.1(c), which provides even citizens can issue complaints, and those complaints can be followed by arrest warrants, again if a complainant swears under oath to facts that make out probable cause.

William H. Rehnquist:

What is the jurisdiction over… what kind of criminal actions do those lower courts have jurisdiction over?

Timothy K. Ford:

That rule itself, Your Honor, would only deal with misdemeanors, but in felonies you can also have those same courts have jurisdiction issue arrest warrants, although I admit it would not be on the complaint only of a citizen or police officer for felonies.

William H. Rehnquist:

And this was a felony involved here.

Timothy K. Ford:

This was a felony, although I’m not… I would contend there’s no constitutional difference–

Stephen G. Breyer:

How can that be?

I don’t… I’m just trying to understand the procedure.

You mean, if, in conjunction with the issuance of a case, the prosecution decides I’d like to arrest Mr. Smith under Washington law… it’s a felony.

Stephen G. Breyer:

You need probable cause and a warrant… couldn’t the policeman attest to the facts?

Timothy K. Ford:

–The policeman could attest to the fact, Justice Breyer.

As I understood the question it was whether a policeman could do this completely by him or herself.

Stephen G. Breyer:

Why not?

Timothy K. Ford:

Because you do… under Washington law you do have to have either a complaint or an Information filed in order to issue an arrest warrant from our court.

Ever?

Timothy K. Ford:

Ever.

Stephen G. Breyer:

I mean, if a policeman’s walking down the street and he sees a crime–

Timothy K. Ford:

He can make a warrantless arrest.

Stephen G. Breyer:

–Well, he knows there is a crime going on, and he wants to produce a warrant, and he goes to the magistrate and says, please give me a warrant.

Timothy K. Ford:

Under our criminal rules–

Stephen G. Breyer:

He can’t do that?

Timothy K. Ford:

–He cannot do that, and our rules I do believe–

Stephen G. Breyer:

Even if there’s no case going on a policeman couldn’t just get a warrant for an arrest ordinarily, when he knows there’s a crime going on in a building and–

Timothy K. Ford:

–Under Washington procedure, only if there has been an initiation at least by complaint.

Stephen G. Breyer:

–Of a case?

Timothy K. Ford:

In a court.

However, that is… and one thing I would also point out, the certification that Justice Kennedy asked about is a King County local rule.

It’s not a certification as a summary, and it is not sworn.

It is a different document, but they have the certification of probable cause.

It is kind of an omnibus document that kind of takes care of all of these problems at once.

The actual rule–

Anthony M. Kennedy:

Well, in that instance is there an underlying sworn affidavit from the police officer?

Does somebody swear to something?

Timothy K. Ford:

–There has to be a sworn statement by somebody under our criminal rules, Justice, there does have to be under the Fourth Amendment of the Constitution, so somebody has to swear.

It does not have to be a prosecutor, and indeed there’s no rule.

The certification process is something that I think as Mr. Maleng acknowledged in many of his statements is going a bit informally.

It’s not provided for by rule or statute anywhere.

The prosecutors have just decided they’re going to do this.

Anthony M. Kennedy:

And this is the practice in most felony cases that the prosecutor makes this summary and the certification under oath?

Timothy K. Ford:

That is my experience, Your Honor, yes.

The–

Ruth Bader Ginsburg:

Mr. Ford, you could not have made a complaint for essentially malicious prosecution against a prosecutor, could you?

Timothy K. Ford:

–That is the difference, Justice Ginsburg.

That is a claim for false arrest, and traditionally–

Ruth Bader Ginsburg:

So you’re really saying that less is more in this case.

In other words, by slicing it thinner and saying we’re just going to go after this arrest warrant, you are able to bring a 1983 case, where your fundamental grievance of malicious prosecution, you can’t bring under 1983 because that would surely trigger absolute prosecutorial immunity.

Timothy K. Ford:

–I would submit, Your Honor, our fundamental claim is false arrest, and we would be… we would have a different defendant if we had a police officer who had issued this false affidavit that resulted in the arrest, but we would still have a cause of action, which is being arrested without probable cause.

A public official under color of State law made up the probable cause that resulted in Rodney Fletcher’s arrest.

Ruth Bader Ginsburg:

But the largest… if we were talking not in lawyer’s terms, the largest offense to your client is that this client was not only arrested, but that there was a prosecution initiated, criminal charges filed against that person.

Timothy K. Ford:

Well, I don’t know.

Our complaint has to do with his arrest and, indeed, under Albright I’m not–

Ruth Bader Ginsburg:

Yes, because you’re slicing it thinner because under the law malicious prosecution is not an avenue that’s open to you.

You could… do you disagree with that, that that’s why you’re bringing this case as a false arrest case rather than the larger false prosecution?

Timothy K. Ford:

–Because that’s what brought it to law, because that’s what happened to Rodney Fletcher.

He was hauled into jail.

After that, they… the prosecution went nowhere.

They gave up very quickly.

But his problem was, he got hauled into King County Jail, had to spend the night in jail, have his wife come get him and his children, those sorts of things.

That’s his complaint.

And I think that again there’s a question even under the Albright case as to whether he could complain at all against anybody for the broader question, but this is what happened to him, and that’s why the complaint has been brought as it has, because also what happened to him is exactly the same as what happened to Mr. Briggs in the Malley v. Briggs case.

And I beg to differ with my colleagues with regard to the differences there.

In the Malley v. Briggs case Officer Malley was not a percipient witness, did not claim to be if you… as the opinion states, but he went in and reviewed a log of–

William H. Rehnquist:

Not what kind of a witness?

Timothy K. Ford:

–This is a word the Government’s come up with.

Percipient, Your Honor.

William H. Rehnquist:

One… I hear someone–

Timothy K. Ford:

That’s correct, and the Government’s suggested that there’s a difference, and I would submit that there is not.

I think that the Government has an interest in protecting DEA or FBI agents who often perform this function in the U.S. Attorney’s Offices, because the U.S. Attorneys never do this themselves, but they are trying to bring the immunity to cover their police officers.

Stephen G. Breyer:

–Are they saying… and here I may be speaking… you have to correct me if I’m not… that in many States I would guess it’s possible for a policeman to get a warrant and arrest somebody a few hours or days before a prosecutor does anything in court.

Timothy K. Ford:

I believe that was the case in Rhode Island with Mr.–

Stephen G. Breyer:

All right, and then they’re saying, but Washington, oddly enough, that isn’t so.

In Washington, the only time you arrest a felon with a warrant, the only time, is in conjunction with a prosecutor filing an Information, and there is no other time, and therefore, unlike all other States, because of this odd quirk of Washington procedure, the arrest of a felon is part of the court function, the court filing function.

It’s not in Rhode Island, it’s not anywhere else, because it exists in other places that you could arrest a person without filing an Information, but not so in Washington, so in those other places it’s a police duty, in Washington it’s different.

In Washington, it’s part of the case-initiating.

I’m not buying that argument, but I want to focus it specifically.

Timothy K. Ford:

–Let me focus it specifically on that, then, Justice Breyer.

It’s not correct in Washington, because you can arrest somebody in conjunction with filing a complaint.

Now, that’s just another word, but it’s a word that’s very important, because officer Briggs, or Officer Malley, I’m sorry, got a complaint.

He swore out a complaint to a judge, and the complaint ordered any police officer to bring the defendant to the court to be held to answer on the complaint.

It was exactly the same function.

He was having him arrested to answer a criminal complaint that was based on his summary of a police report that he had read and he swore under oath that that made out probable cause, and went to a judge, and the judge… and they had a file, it has a case number, and they issued court documents, a complaint and an arrest warrant.

Here we had an Information and an arrest warrant.

William H. Rehnquist:

But in–

Timothy K. Ford:

The only difference is a word.

William H. Rehnquist:

–But in Malley the person was arrested on the basis of this complaint, but a grand jury, which in Rhode Island is apparently committed to the job of finding… refused to indict.

Here the Information is a substitute for the indictment, not the complaint, isn’t it?

Timothy K. Ford:

And… I agree, Mr. Chief Justice, that’s true for the Sixth Amendment purpose of initiating a criminal prosecution, but for purposes of the Fourth Amendment and for purposes of the traditional common law background that we were looking at in 1871 there was no difference.

Every variety of this kind of behavior, of somebody coming before a judge swearing to facts, having the judge have a complaint or a writ ne exit, or whatever you’d call it, and arresting somebody based on the sworn statement of that person, who is called a complaining witness at common law, very ancient law in this regard–

William H. Rehnquist:

The point I was trying to make was that if you compare the facts in Malley with the facts in this case, the facts in Malley seem to have been further removed from the determination of probable cause, because there it ultimately went to a grand jury after all the Malley facts had happened, and the grand jury refuses to indict.

Here, the Information is filed, and that in itself is a determination of probable cause.

Timothy K. Ford:

–Well, it’s an initial determination of probable cause, Your Honor, but it doesn’t justify an arrest, and in Washington, of course, it’s not final.

We also do have a safeguard under a case called State v. Knapstad, where a judge can determine whether the prosecutor did, in fact, have probable cause to bring this Information.

So there are many systems in our country, but the common denominator we have now in our States and in the Territories and States and even back into England in the law that this is based on is that when people come into, before a judge or a magistrate or a justice of the peace, or whatever they happen to be called locally, and swear to facts, and get some kind of an order that allows somebody else’s body to be seized, they were never held to be immune from liability before 1871, before 1791 when the Oath or Affirmation Clause was put into the Fourth Amendment establishing the function that we believe is relevant here, a very ancient and important function of providing that oath or affirmation.

It’s never been subject to immunity, and the fact that the prosecutors in Washington have really voluntarily, just as a matter of their own practice and convenience, or perhaps for this reason, usurped that function, without even the Washington legislature or court rules telling them to, and said well, we’ll be the witnesses here, they have taken on a function that prosecutors as far as I can tell, reading… we cited some historical materials that go back into the 13th and 14th Century.

The prosecutors and their predecessors have never acted as witnesses.

It’s a fundamentally different function of swearing to facts and bringing the facts in and saying, I vouch for these facts.

And in most contexts, of course, there is, as I think Justice Stevens pointed out, a defamation immunity for witnesses, but there has always been an exception in this particular context, where a person comes in, a person who might say exactly the same things at a trial and be absolutely immune, but when the context is the initiation of a matter before some kind of judicial officer, the purpose of which is to take somebody’s body into custody, that that person has never been held immune from liability no matter what their rank in society.

Antonin Scalia:

But it wasn’t defamation liability, as the perjured testimony would be.

It was liability for malicious prosecution, essentially, right?

Timothy K. Ford:

I think the differences between malicious prosecution and false arrest and trespass, and trespass on the case, and the different things in the common law have… I have not grasped yet, Justice Scalia, but what I understand is that whatever you called it at that time, nobody recognized it as a circumstance in which a person should be immune from liability, even though they were doing something, swearing, very much like what they could do in court under absolute immunity.

When they did it in this context, when ex parte, I would assume that the policy reasons are because there is no protection of the courtroom, it’s an ex parte proceeding, it involves an initiation of a very drastic governmental action against a person, whatever those policy reasons were, the common law in 1871 was clear that in that context a swearer, a person who took an oath or affirmation, was not subject to the immunities that they would be later in the proceeding, and I think that is the difference, and there’s no historical basis… this one 1927–

Ruth Bader Ginsburg:

So Mr. Ford, if the prosecutor did the same thing, but once the trial is going on says, I need to arrest this material witness, and the police report tells me this, this, and this, and so I swear out an arrest warrant, but it’s in court while the trial is going on to hold the material witness, that would be absolutely immune?

Timothy K. Ford:

–That is a fascinating question, Justice Ginsburg.

It had not occurred to me because of course the material witness is not a party to the lawsuit, and how the common law would have treated that I do not know.

It does seem to me to be a part of advocacy, but it also seems to be kind of like initiating a new proceeding against a material witness.

Ruth Bader Ginsburg:

But if you’re talking about witness, it’s the same swear… I swear, this is what the police report, I gather from the police report… and it’s the same exact form as the one that leads to the prosecution, but it happens during the trial.

If… just your puzzlement shows it isn’t that easy to draw the line between what is advocacy and what is testimony.

Timothy K. Ford:

Well, it is easy to draw the line.

To me… and that’s the fundamental issue in this case.

Testimony is not advocacy.

Swearing is not making a decision.

You don’t decide whether to tell the truth or not.

When you go under oath, you tell the truth.

Now, you may be–

Ruth Bader Ginsburg:

Well then, why are you having such a problem with this case?

You say maybe there would be prosecutorial immunity if the very same thing happened while the trial was going on.

Timothy K. Ford:

–I was having trouble, Justice Ginsburg, because I don’t think anybody ever thought of that question before, and as I’m thinking about it, I think that that is the initiation of a new action against the material witness, and would not be subject to immunity.

Now, the different analogy that I had thought of is what if the prosecutor swears in support of some motion during the trial itself?

It seems to me that is a different thing where different sorts of protections exist.

That is within the area that the common law would have found advocacy.

William H. Rehnquist:

Well, what if a prosecutor avows or swears to the court, I subpoena this witness, he’s not here, I ask you to issue a bench warrant?

Protected or not?

Timothy K. Ford:

If it’s necessary under the Fourth Amendment for that witness to have probable cause for that bench warrant it seems to me that he may again be initiating a new proceeding against that witness if he’s lying, or she is.

William H. Rehnquist:

But the subpoena had already been served.

The bench warrant just really says, you know, you come right now.

Timothy K. Ford:

And I don’t know what the constitutional requirements would be with regard to the bench warrant under those circumstances, Mr. Chief Justice.

I would say that with regard… my thoughts have been with regard to the defendant himself or herself.

With regard to that person, once you’re in court in the heat of battle swearing or avowing or proffering is the more usual situation, that that is within the witness immunity if it’s a witness, the prosecutorial immunity if it’s a prosecutor.

But the initiation of a new proceeding to arrest, that’s where the common law has looked, and I have not seen cases that have focused on, what if you initiate a new proceeding in the middle of another proceeding.

Timothy K. Ford:

I would assume the law would be the same, but I don’t know what the common law was and of course that, I think, is what the Court has to look at.

What would have been the understanding in 17… or in 1871 about liability here, and it wouldn’t necessarily have been the opinion of the North Dakota supreme court in 1927, which was characterized in the Solicitor General’s brief as having been a suit based on a false complaint.

That is, a false document.

I understand the argument here would be very different if our only argument were Ms. Kalina lied when she signed the Information and said Rodney Fletcher committed a burglary in the Information.

That is an immune act.

That is the initiation of a prosecution.

That is a decision.

That is advocacy.

But when she takes the Fourth Amendment separate rule of making an oath or affirmation, she is doing something that has much more ancient roots and should not turn on the… the difficult lines, I think, Justice Ginsburg, would be if there was a line that was based on the name of the charging document, or the particular local procedure.

I have looked at a number of States in regard to this, and the States are very various and the counties, I’m sure, within States vary as to how they handle criminal prosecutions, and when… where the police hand off to the prosecutors, and to draw a line straight through based on Washington’s particular procedure I think would be extraordinarily difficult and create different rules in different States.

And, of course, in section 1983 the Civil Rights Act was supposed to, I think, establish Federal minimums for the protection of residents of the various States regardless of what their State officials decided to do, and when the… the fact that our State officials and our prosecutors have over the years said, well, wouldn’t it be easier if we just swear the witnesses, and we just provided the oath or affirmation rather than have police officers or FBI agents or the various people who do it in every other jurisdiction of the country perhaps save one, that can’t change the constitutional rights and remedies of the people of Washington that were enshrined in 1871 and existed a long time before that, of saying if you lie about me and cause me to be arrested, I have a cause of action to recover for my damages from you.

Sandra Day O’Connor:

Well, now in the Burns case I think we gave absolute immunity to a prosecutor who gave false evidence at a hearing to get a search warrant, didn’t we?

Timothy K. Ford:

I think not, Justice O’Connor.

In Burns the police officer testified, and I believe the police officer was separately sued and was not a party before this Court.

The–

Sandra Day O’Connor:

But the prosecutor–

Timothy K. Ford:

–The prosecutor–

Sandra Day O’Connor:

–certainly, who presented the false evidence, was given absolute immunity.

Timothy K. Ford:

–I… presenting and acting, asking questions and even drafting documents, those are prosecutorial-type functions.

Sandra Day O’Connor:

Mm-hmm.

Timothy K. Ford:

But swearing on the bottom line, that’s when it changes.

That’s where the Fourth Amendment says it changes to… from an illegal arrest to a legal arrest.

That’s where the common law said it changed, and even magistrates could be sued at common law if there was no oath or affirmation.

The person who puts their name on that oath or affirmation, that’s what causes an arrest, and 1983 says, a person who causes another to be deprived of their rights guaranteed by the Constitution.

What causes that arrest is swearing on the line that says, I swear that this is true, and the person who has done that has always been subject to liability, I think was in the Burns case… in some ways it’s very much like in the Buckley case.

Counsel referred to Buckley as if the court granted prosecutorial immunity there, and I think it did not, and I think that’s the answer to Justice Souter’s questions about how broadly do you define under the… I think the petitioners here are really refighting Buckley and saying, well, everything we do is designed to, you know, convict or to prosecute or decide whether to prosecute or not, so everything we do should be prosecutorial, and Buckley certainly said that’s not the case with regard to particularly one function that was, I think, very analogous to what happened here, which is the manufacturing of false evidence.

In a very real sense, our claim is that Lynne Kalina manufactured false evidence against Rodney Fletcher, and she did so not only with regard to the trial, but with regard to a critical moment when nobody else was there in court to correct it, that the common law and the cases of the majority of circuits, certainly, since have always said is subject to liability.

Sandra Day O’Connor:

Well, it all boils down to how you analyze the function, and in one sense you can say that in Malley the function being performed by the police officer in signing the affidavit was to further the investigation for a crime, and here the function being served was to further the prosecution of a criminal, an alleged crime.

Timothy K. Ford:

Except that, Justice O’Connor, in Malley what the police officer was–

Sandra Day O’Connor:

There was an initiation of a prosecution here, and there was not at this stage in Malley.

Timothy K. Ford:

–It depends only on what you call a prosecution.

There was a criminal complaint filed against Mr. Briggs, and the request of Officer Malley was that Mr. Briggs be apprehended and brought… held… and held to answer this complaint.

It wasn’t, let him bring him in here for finger prints, or bring him in here so we can take his picture and show it to witnesses.

It was bring him in here and hold him to answer for the charge that I’m getting a judge to issue right now, exactly the same, except in name, to what Ms. Kalina did here, and I think the function test can’t turn on the name that a specific State gives a particular document.

Stephen G. Breyer:

Can you help me with something else I don’t know, and perhaps… are there grand jury indictments as well in Washington?

Timothy K. Ford:

There can be, Your Honor.

Stephen G. Breyer:

Yes.

All right.

When the grand jury indicts someone, then that’s automatically probable cause to try the person, isn’t it?

Timothy K. Ford:

That’s my understanding.

It’s very rare in Washington.

Stephen G. Breyer:

All right… oh.

Well, what I really wanted to know is, is it also probable cause to arrest the person without going through any other procedure?

Timothy K. Ford:

My understanding of the case law elsewhere is that the issuance of a grand jury indictment is sufficient itself to warrant an arrest warrant.

It would not be under Washington law.

Stephen G. Breyer:

And do you… are you familiar enough… in instances where a case begins through an Information, in which case the prosecutor, I take it, signs a statement and says, these are the facts, and this is sufficient, and if it’s accepted I take it that makes probable cause for beginning the trial… is that what an Information does?

You write out on a piece of paper what the facts are, and you say that this is the… these constitute the crime, and you give it to the judge, and now the judge says yes, we can begin the trial now.

Is that basically how it works?

Timothy K. Ford:

It’s an allegation, Your Honor, and in Washington it’s usually summary.

It only says, I–

Stephen G. Breyer:

Now, do you need some backup for that to begin the trial?

Timothy K. Ford:

–Only if you arrest.

In Washington, you can initiate a prosecution.

Ms. Kalina could have charged Mr. Fletcher simply by filing an Information, not sworn.

He would not have been arrested.

That would have been just fine.

Washington procedure provides for that.

They could have sent–

Stephen G. Breyer:

Do you need probable cause to begin the procedure?

Timothy K. Ford:

–You need probable cause only to arrest him.

Stephen G. Breyer:

So you could bring… you could bring, if you don’t arrest somebody, a proceeding against him in a criminal court without probable cause?

Timothy K. Ford:

I think you’d be violating your oath, and I think you’d be subject to dismissal.

You would not be subject, if you are a prosecutor, to a Federal civil rights suit, or a malicious prosecution action in Washington.

The… but that would… you can file the document and, indeed, that is the only required document, and many of the… the question here is, what is the prosecutorial function?

If we look historically, why have Washington prosecutors always… all of a sudden taken on the role of witnesses when they… no prosecutors have historically that we can find, and the answer is not because Washington law requires them to, because Washington law says clearly you can initiate a prosecution–

Yes.

Timothy K. Ford:

–and, in fact, the only thing that is required is the filing of an Information.

Stephen G. Breyer:

You see, I’m bothered by this slightly odd phrasing of the… of what she swore to.

It was that I am familiar with the police report, and the case contains the following, and it’s as if she’s vouching for it but not stating it.

I don’t know how to deal with this… it’s a rather unusual animal, and I don’t know how to think of it.

Timothy K. Ford:

Well, we haven’t got into the facts yet, of course, Your Honor.

Because of absolute immunity it doesn’t matter if she made the whole–

Stephen G. Breyer:

No, I know–

Timothy K. Ford:

–or whatever.

Stephen G. Breyer:

–and then follow a bunch of factual statements.

What I’m thinking of is this odd way–

Timothy K. Ford:

Right.

Stephen G. Breyer:

–I mean, she’s not vouching for it.

She’s not even vouching… I mean, she’s not saying she knows it.

She’s saying it’s in the police report.

That’s what she knows.

Timothy K. Ford:

Number 1, I–

Ruth Bader Ginsburg:

I’m trying to work out if that is–

–Is that boilerplate?

Is this typical of what goes into a prosecutor’s certificate for determination of probable cause, those words, is familiar with the police report, the case contains?

Timothy K. Ford:

–I don’t know the last phrase, Justice Ginsburg.

My experience is that it is fairly typical of both our prosecutors and, of course, of Federal police or law enforcement agents in Federal courts who do the same thing, summarize reports in affidavits, and the Jones v. United States said that hearsay can be the basis of an arrest and arrest warrant, so that is what they’re capitalizing upon.

But of course here, our submission, and what we plan to prove is that not only was she testifying falsely about what Mr. Fletcher did, but also she’s testifying falsely about what’s in those police reports, and that will be the question, really, if we get to the question of qualified immunity.

If she can say, hey, here’s the police reports, how do I know, we’ve got a different case, but our contention is that she was false on both levels, and–

Anthony M. Kennedy:

If you prevail can prosecutors maintain their absolute immunity in further cases by adopting that sort of formulation, of being just a little bit more careful?

Timothy K. Ford:

–I don’t think it should go on the formulation, Justice Kennedy.

I think it goes on swearing or not swearing.

If they decide to swear, they’re stepping outside their prosecutorial role.

Anthony M. Kennedy:

Well, suppose they swear that I have read the police report and based on the police report there’s probably cause for the following, and then there’s a police affidavit as well?

Timothy K. Ford:

Well, if they supplied probable cause that did not otherwise exist and did so falsely, they would be the person who is the appropriate defendant, and I would think that that would render them liable.

I know of nothing in the common law or any other cases that say that claiming to be a second-hand witness enables you to be absolutely immune, where claiming to be a first-hand witness does not, and oftentimes as long as you’re going to allow hearsay there’s going to be hearsay.

Actually, it’s a third-hand witness versus a second-hand witness, but again, Officer Malley was a second-hand witness testifying to what was in the logs that he had read from other officers.

It’s exactly the same thing.

That can’t be the difference.

The difference is, if you choose to swear, if you take on that police function, you take on their qualified immunity.

You’re not… you still have that, but you take on their qualified immunity.

Ruth Bader Ginsburg:

But I thought you said in answer to my question if a prosecutor swears to something while the trial is ongoing, that would be ranked as prosecutorial even though it involves swearing, so I thought you were conceding that you could have sworn plus prosecutorial.

Timothy K. Ford:

It is difficult for me to conceive an instance where the prosecutor could step out of the role and issue an affidavit that was not at least subject to… I… if the prosecutor became a trial witness he would have the immunity of trail witnesses, or she would.

The… if… but if… so that’s the difference.

The difference is the common law difference between complaining witnesses and trial witnesses, and prosecutors never become trial witnesses in my experience, so that’s why I’m having trouble conceiving of that.

David H. Souter:

No, but there is the Chief Justice’s case.

Let’s assume the prosecutor says, now, I issued a subpoena, and the subpoena doesn’t, I take it, require probable cause to believe that anything had been done wrong by the witness.

He simply says, you are a witness who can give evidence.

The witness hasn’t showed up.

Therefore, issue an arrest warrant.

The cause for the arrest warrant consists of the failure to respond to a lawfully issued subpoena.

If the prosecutor is lying in that case, then I would suppose on your theory the prosecutor could be liable, or at least… strike that… would not have any absolute immunity even though in fact the process was issued in the middle of a prosecution.

Timothy K. Ford:

Again, my conception of that would be, it’s a new proceeding against the witness, but that would be the one hard question that would be left under our–

Yes.

Timothy K. Ford:

–conception that Malley should be maintained.

Thank you.

William H. Rehnquist:

Thank you, Mr. Ford.

the case is submitted.