Pottawattamie County v. McGhee

PETITIONER:Pottawattamie County, Iowa, et al.
RESPONDENT:Curtis W. McGhee, Jr., et al.
LOCATION:National Railroad Adjustment Board

DOCKET NO.: 08-1065
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 558 US 1103 (2010)
GRANTED: Apr 20, 2009
ARGUED: Nov 04, 2009
DECIDED: Jan 04, 2010

ADVOCATES:
Neal Kumar Katyal – Deputy Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioners
Paul D. Clement – for the respondents
Stephen Sanders – pro hac vice, for the petitioners

Facts of the case

In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murder and sentenced to life imprisonment by an Iowa state court. In 2002, Mr. McGhee’s and Mr. Harrington’s convictions were reversed because the prosecutor at their trial improperly withheld evidence of an alternative suspect. Subsequently, Mr. McGhee and Mr. Harrington filed civil claims in an Iowa federal court against Pottawattamie County, Iowa, and the prosecutors and officers involved in their prosecution. The defendants moved for summary judgment arguing that they were absolutely immune to civil prosecution. The district court found some defendants immune to certain claims, but denied immunity to other defendants on the other claims. The U.S. Court of Appeals for the Eighth Circuit granted interlocutory appeal on the question of whether the prosecutors were absolutely immune to civil prosecution.

The Eighth Circuit held that the prosecutors were not immune from claims that they violated Mr. McGhee’s and Mr. Harrington’s due process rights. The court reasoned that allegations that prosecutors obtained, manufactured, coerced, and fabricated evidence did not fall within “a distinctly prosecutorial function” and thus the prosecutors were not immune to the claims.

Question

May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants’ substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?

John G. Roberts, Jr.:

We will hear argument first this morning in Case 08-1065, Pottawattamie County v. McGhee.

Mr. Sanders?

Stephen Sanders:

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

If a prosecutor’s absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction, Yet that is exactly what happened in this case.

Lower courts may not fashion exceptions to the immunity this — this Court provided in Imbler by purporting to relocate a due process injury from the trial to an earlier investigation.

Anthony M. Kennedy:

Your — your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons.

Stephen Sanders:

Your Honor–

Anthony M. Kennedy:

I mean, we were just spinning our wheels in that case?

Stephen Sanders:

–Your Honor, I don’t believe so at all.

I think that this case presents exactly the question that Buckley reserved, and that is whether the fabrication of evidence by a prosecutor in and of itself, without regard to its use in some way, states a constitutional cause of action.

In this case, the use at trial, obviously, was absolutely immunized under Imbler and many of this other — this Court’s other precedents.

Despite respondent’s best efforts to argue that there was some sort of due process violation caused by the fabrication itself, without regard to its use in some way, there simply is no support for that.

Ruth Bader Ginsburg:

Does that mean that, even if we were dealing with police officers who did what the prosecutors were alleged to have done at the investigation stage, no prosecutor, only police investigators, the fact that a trial and a conviction had occurred would mean that the police officers were not liable, either?

Stephen Sanders:

Your Honor, the fact that a trial and conviction had occurred could mean that the police officers were liable because of the due process violation at the trial, but in footnote 5 of Buckley, this Court was very clear and insisted that there is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute–

Anthony M. Kennedy:

Take two cases.

One is Justice Ginsburg’s case, a police officer fabricates the evidence, dupes the prosecuting attorney, or — or doesn’t fully disclose.

Case two, a prosecutor does the same thing and gives it to a fellow prosecutor.

Same — should the analysis be precisely the same?

Stephen Sanders:

–Your Honor, it should be the same if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution.

In other words, if we could view that prosecutor simply as an ordinary citizen, simply as a complaining witness, as analogous to a police officer, So there’s no argument in this case that simply, by virtue of being a prosecutor, a prosecutor has absolute immunity.

The courts below wrongfully abrogated trial immunity because trial is the only place where the injury of conviction and subsequent incarceration could have taken place.

Without reference to that specific injury, there is simply no other injury.

The–

Ruth Bader Ginsburg:

I’m not sure that I fully grasp your answer to my first question and to Justice Kennedy’s, that is, yes or no, if everything that happened was alleged to have happened, but it was done by a police officer or a different prosecutor, nonetheless, the trial went on, the fabricated evidence was introduced, without any participation by the actual prosecutor in that fabrication, does a conviction — does the — do the police officers or the prosecutors that was not involved in the trial get absolute — are they — are they no more liable, not because they have absolute immunity, but because the trial and conviction at which the evidence was used overtakes what liability they might have had, absent the trial?

Is that your position?

Stephen Sanders:

–Your Honor, our position is — I believe I would agree with you.

Our position is there is no liability for the initial fabrication.

As the United States explains in its brief, for a police officer to be held liable in those circumstances, it would need to be under some sort of malicious prosecution theory that would depend on the actual conviction and the use of the evidence at trial.

But the use of the evidence at trial is the injury itself, and that is exclusively a prosecutorial act, only a prosecutor could–

Antonin Scalia:

You’re not answering the question clearly.

Antonin Scalia:

Are both the prosecutor, in Justice Ginsburg’s hypothetical, and the policeman liable?

Can’t you answer that?

Yes or no.

Stephen Sanders:

–Yes.

This Court–

Antonin Scalia:

Good.

That’s what I thought your answer was.

Stephen Sanders:

–Yes.

The police officer — likely, this Court has never — never addressed the issue.

The police officer would likely be liable because the police officer would have no immunity for the use of the evidence.

Antonin Scalia:

Well, she’s more concerned about the prosecutor, and the prosecutor, also, would be treated just like a police officer?

Stephen Sanders:

If the prosecutor performed no prosecutorial function, that’s correct.

Antonin Scalia:

In the case?

Stephen Sanders:

That’s correct, Your Honor.

John G. Roberts, Jr.:

But only if the — only if the evidence is presented at trial?

Stephen Sanders:

But only if the evidence is presented at trial because that’s the only way the evidence can provide injury and so–

Anthony M. Kennedy:

So the — so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune?

That’s a strange proposition.

Stephen Sanders:

–Your Honor, I think it’s not the more deeply you are involved, it’s whether you are in the unique position of a prosecutor to cause injury by use of the evidence at trial.

That is exclusively a prosecutorial function.

The function test of — of Buckley goes to what function someone is performing, but only the prosecutor can ever perform the function of actually using the evidence.

Ruth Bader Ginsburg:

But it’s strange to say you can have a prosecutor, who wasn’t involved in the trial, would have liability, but as long as the prosecutor, in effect, turns the investigatory stage material over to himself, rather than to another prosecutor, then there’s absolute immunity.

Stephen Sanders:

Your Honor, that is correct, but I think the Court, more than 80 years ago, when it summarily affirmed Yaselli v. Goff from the Second Circuit, spoke to this question.

In that case, the Court said — affirmed the Second Circuit in its view that, if a prosecutor cannot — if a prosecutor has absolute immunity for acting maliciously at trial, that immunity cannot be circumvented–

Ruth Bader Ginsburg:

No, but the — the question is not at trial, nothing about trial.

It’s the pretrial conduct.

Stephen Sanders:

–The — the odd thing about — if we are taking out reference to the trial itself, then there simply can be no claim.

Respondents urge a new freestanding right, separate and apart from the due process trial right, yet at the same time–

Ruth Bader Ginsburg:

But you said that there — that there would be liability, as long as it wasn’t the same person involved in the investigation and the trial.

Even though there had been a trial, you say — you answered Justice Scalia, that those people separated from the trial would be liable, even though there was a trial, and it’s at issue.

Stephen Sanders:

–Your Honor, looking to the common law, the rationale for that would be a form of malicious prosecution, but as you observed in your concurrence in Albright, asserting malicious prosecution against a prosecutor would be anomalous because it’s the prosecutor who is exclusively responsible for causing the kind of injury.

If a police officer or a nonprosecuting prosecutor simply fabricates the evidence, as Chief Judge Easterbrook of the Seventh Circuit said, there can be no cause of action.

It is the exclusive function of a prosecutor in a case who uses the evidence who can cause the injury, and although–

Sonia Sotomayor:

But that makes no sense because, if you go down that road, then what you’re saying is that neither the — neither a police officer or a different prosecutor who fabricated evidence could be liable, either, because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial.

Stephen Sanders:

–Your Honor, this Court has not spoken to that question, but as you stated, that would be the rationale of the restatement actually.

The restatement says, if there is no deception of the prosecutor, then it is the prosecutor’s willful and free will use of the evidence at trial.

Sonia Sotomayor:

Now, the Second Circuit in its decision, Judge Newman, looked at it and said there are two causes to the injury here.

One is the fabrication, joint tortfeasors.

There are two people who can cause any injury and the prosecutor who actually puts the evidence in at trial.

That’s how you hold police officers and different prosecutors liable because they are assisting in the violation that is occurring.

Stephen Sanders:

Uh-hmm.

Sonia Sotomayor:

Why doesn’t that theory fit the same prosecutor who commits two different acts?

Stephen Sanders:

Your Honor, I think–

Sonia Sotomayor:

One commits the direct violation, and the other act, the investigatory act, contributes to it, leads to it as a joint activity with it.

Stephen Sanders:

–Your Honor, I believe the analysis is not that it — because it leads to the injury itself.

The tort of wrongful conviction based on use of false evidence at trial has only one element under this Court’s precedents in Pyle and Mooney and Hysler and Rochin.

That element is the prosecutor’s use of the evidence at trial.

But simply because that act is absolutely immune is not to say that someone else who’s responsible for–

Sonia Sotomayor:

You’re confusing — the constitutional injury is the deprivation of liberty.

That’s the injury.

Stephen Sanders:

–That’s correct.

Sonia Sotomayor:

What causes that injury is not an element of the crime.

It is — the question is have you proven the violation, have you proven the injury.

Stephen Sanders:

Well–

Sonia Sotomayor:

So why does the use define the scope of the injury?

Stephen Sanders:

–Because that is the way a prosecutor would be held liable.

The cause of action against a prosecutor, even though he would be absolutely immune, would be the prosecutor’s knowing or even unknowing use of the false evidence at trial.

But in this case, Respondents ask for a free-standing due process right that would somehow at the same time protect the interest against wrongful conviction at trial.

That simply can’t be.

This Court’s decision–

Ruth Bader Ginsburg:

What about the view that Judge Fairchild expressed very simply.

He said if this fabrication had not occurred, there never would have been any trial.

Stephen Sanders:

–Your Honor, as we discussed in our opening brief in this case, I think that Judge Fairchild’s reasoning is classic malicious prosecution reasoning.

That is, that it’s the false evidence that impelled the prosecution.

But again, this Court has been absolutely clear that a malicious prosecution theory cannot be asserted against a prosecutor because a prosecutor can initiate willfully and maliciously a wrongful prosecution based on good evidence, bad evidence, or no evidence at all.

It’s simply untenable to say — and this Court’s decision last term in Van de Kamp made clear that where the injury comes at trial, where that is the interest protected against, that you can somehow abrogate immunity and continue with a case based on that kind of claim based on a claim of an earlier due process right–

Ruth Bader Ginsburg:

Was there no injury in the period before?

Let’s leave out the trial for a moment.

There was a deprivation of liberty during the investigatory stage.

Stephen Sanders:

–Your Honor, I think any earlier deprivation of liberty would be covered by the Fourth Amendment.

The Fourth Amendment is not implicated in the question presented here.

It has not been briefed.

Surely there would be an interest against wrongful seizure or, since this — these arrests were pursuant to legal process, against a form of malicious prosecution.

But again, that would be a Fourth Amendment theory and it could not be asserted if it is malicious prosecution against a prosecutor.

John Paul Stevens:

Would you clear up one thing for me I really don’t quite understand.

You do agree that if the police officers did this there would be liability?

Stephen Sanders:

Your Honor, this Court has not addressed that issue.

That is the view of some of the circuits and the Restatement.

John Paul Stevens:

Are you assuming that to be correct or are you disputing that?

Stephen Sanders:

We’re assuming that to be correct, but if I–

John Paul Stevens:

But if that’s true, why doesn’t the trial immunize the police officers because they didn’t cause the trial?

Well, they were in the background in the same sense that these prosecutors are.

But why would the police officers be liable?

Stephen Sanders:

–A police officer would never get immunity at trial because–

John Paul Stevens:

Not to get immunity, but why is he liable?

Why is he liable?

Because the injury was caused by the trial, if I understand your theory.

Stephen Sanders:

–The theory of the common law on malicious prosecution would be that the police officer is liable because his fabrication of evidence impelled the proceeding, caused the proceeding.

John Paul Stevens:

But it was not a malicious prosecution.

The prosecution — the prosecutors acted in good faith all the way through, so there is no malicious prosecution.

John Paul Stevens:

So what is the basis for liability against the police officers?

Stephen Sanders:

The basis for liability precisely against the police officer would be the violation of the due process right to a fair trial, Wrongful conviction on the basis of the introduction–

John Paul Stevens:

Why doesn’t the theory apply to the facts of this case also?

Stephen Sanders:

–This theory wouldn’t apply to the facts of this case because in this case the prosecutors made the decision independently to initiate the prosecution.

It’s undisputed that they did that in their capacity as prosecutors.

They — the police officers’ act could not cause injury but for the immunized act of a prosecutor beginning the prosecution and conducting the trial.

John Paul Stevens:

This investigation by the prosecutor could not have caused injury but for the immunized act of going forward with the trial.

Stephen Sanders:

But, Your Honor, I think–

John Paul Stevens:

What’s the difference?

Stephen Sanders:

–I think that that reasoning would be to what this Court affirmed in Yaselli and what this Court has said — and which the Court has repeatedly cited favorably, and that is — and it would also run up against the concerns that Justice Kennedy indicated in his concurrence in Buckley, which this — the majority in Buckley also disputed and said there is no disjunction between qualified immunity for a prosecutor during an investigation but absolute immunity for the act of setting the prosecution in motion.

The Court was absolutely clear in footnote 5 of Buckley that there was no disjunction, and as this Court has indicated in Malley v. Briggs and other cases, anything other than absolute immunity for a prosecutor would impair the — would impair the performance of a central actor in the judicial process.

With the Court’s permission, I’ll reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Katyal.

Neal Kumar Katyal:

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

This Court’s decision in Buckley v. Fitzsimmons the question presented today, which is whether a cause of action exists against prosecutors alleged to have fabricated evidence.

Respondents’ answer to this question asks this Court to announce for first time ever that there is a free-standing due process right not to be framed.

That theory would untether due process from the right to a fair trial, which is the process a defendant is due before being deprived of liberty.

Stephen G. Breyer:

Why do we need that theory?

I mean, why not just say what Newman said and the others said?

There is no free-standing right.

There is just a right not to convict a person with made-up evidence, and of course a prosecutor insofar as he’s involved in the prosecutorial stage is absolutely immune.

But if he’s involved in the investigatorial stage of that event, well, then he’s not immune absolutely.

That’s a policy decision.

That has nothing to do with free-standing rights.

Neal Kumar Katyal:

Respondents’ primary submission before this Court is not that argument.

They don’t rest–

Stephen G. Breyer:

All right.

Then I’m making that argument.

Neal Kumar Katyal:

–Right, and with respect to that I think we have several, several responses.

Neal Kumar Katyal:

The first is that this Court has rejected that kind of mere foreseeability analysis in the context of section 1983.

Stephen G. Breyer:

Mere foreseeability.

You can fill in those boundaries, Toffler, not Toffler, as you wish.

But the basic theory isn’t a problem because, after all, we’re just drawing a line somewhere within the stage of an ongoing tort on the basis of policy, and Buckley suggests such a line.

I don’t see a conceptual problem there, is my problem.

Maybe there are practical problems, but I don’t see a conceptual one.

Neal Kumar Katyal:

I think there are practical and conceptual problems, which is why Buckley reserved precisely this question in footnote 5, and here’s the basic policy or conceptual concern.

Our point is that if a section 1983 defendant is absolutely immune for the constitutional wrong, then you can’t read back in time; a plaintiff can’t look back in time and isolate some other acts as to which they are nonimmune and thereby–

Stephen G. Breyer:

I interrupt you right there.

I would say they are not absolutely immune for the whole constitutional offense.

That’s the line I’m trying to draw.

Neal Kumar Katyal:

–And, Justice Breyer, I’m saying to do that requires you to read the due process violation as occurring sometime before the trial, and then we’re back to the free-standing rationale and the opening up of the due process clause to something this Court has never, ever accepted.

Stephen G. Breyer:

So I agree with you on that.

I agree with you.

I won’t do it.

I’ll take it as one tort.

Began before the investigation stage, ends with conviction.

One tort.

Now, within that tort we draw a line and we draw a line based on policy purposes as to when the prosecutor is absolutely or qualifiedly immune, and where that line comes is Buckley, approximately.

Okay?

Now, I don’t see a conceptual problem with that and I’m having a hard time finding a practical problem.

Neal Kumar Katyal:

The conceptual problem is that this Court has been explicit that section 1983 is not the font of tort law.

Rather, you need to isolate a constitutional violation.

Here, the constitutional violation is the due process clause.

That violation begins, as this Court’s decisions in Napue and Pyle say, when the fabricated evidence is introduced at trial in order to secure a conviction.

Antonin Scalia:

And how do you get the policeman who has fabricated the evidence?

Neal Kumar Katyal:

Because the policeman essentially induces the prosecution at an earlier point of time and acts through the innocent agent, the prosecutor, that introduction of evidence at trial is not something as to which the policeman has any sort of absolute immunity.

And so in Justice Breyer’s example of a prosecutor introducing evidence, that is something as to which the prosecutor is absolutely immune.

That is where the constitutional violation begins.

Anthony M. Kennedy:

What if a prosecutor knows that it’s fabricated evidence?

Anthony M. Kennedy:

The police officer fabricates the evidence and says: Mr. Prosecutor, it’s a very bad man; I fabricated the evidence.

The prosecutor introduces it.

What result there?

See, your footnote 6 presumes that the prosecutor doesn’t know.

Neal Kumar Katyal:

Right.

Anthony M. Kennedy:

Suppose he knows?

Neal Kumar Katyal:

And if the prosecutor does know, we don’t think that there is a Fifth Amendment due process violation.

Anthony M. Kennedy:

Against the policeman?

Neal Kumar Katyal:

Against — against the policeman in that circumstance, because the–

Anthony M. Kennedy:

Again, the more aggravated the tort, the greater the immunity.

Neal Kumar Katyal:

–And I agree that that seems a little odd–

Anthony M. Kennedy:

You’re basically saying that you cannot aid and abet someone who is immune, and that’s just not the law.

Neal Kumar Katyal:

–No, what I’m saying and what this Court’s decisions have said is that absolute immunity doesn’t exist to protect bad apples.

It reflects a larger interest in protecting judicial information coming into the judicial process.

And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.

And that is the distinction between the police officer, who is liable, and the prosecutor, who is — who is absolutely immune.

Sonia Sotomayor:

A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated?

Do you really want to send a message to police officers that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

Neal Kumar Katyal:

Justice Sotomayor, we absolutely want to send that message.

The worry is that allegations of wrongdoing, as this Court has recognized in Imbler and Van de Kamp, can — can supersede that.

And just to give you–

Sonia Sotomayor:

Am I right that none of the — neither of the two prosecutors in this case were sanctioned in any way for their conduct?

Neal Kumar Katyal:

–I believe that is correct, and I also believe that no ethics complaints were ever brought.

That is, rather the Respondents went into Federal court seeking money damages instead of ethics violations and the like.

Sonia Sotomayor:

But you have no reason to dispute the numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage, are you?

Neal Kumar Katyal:

Well, I do think that there is a debate in the briefs before this Court, including the brief by 12,400 or so prosecutors that takes the reverse view.

But be that as it may, I think that is a question for the legislature.

This Court has said repeatedly that those ethics and disciplinary violations are — are a successful deterrent, and there is others as well that this Court has pointed to that may be available, including counsel’s liability.

Anthony M. Kennedy:

Well, you can’t have it both ways and say this is a policy we should take into account and then when Justice Sotomayor asks you a question, say: Oh, well, that’s for the legislature.

I mean, you’re — it seems to me you’re trying to have it both ways.

Neal Kumar Katyal:

Well, with respect to a cause of action and whether the principles of absolute immunity apply to this, I think this Court has already recognized several times that the overriding interest is protecting the judicial process and not letting information be chilled and not come in.

To give you a couple of data points, there were 14.4 million arrests in the year 2006 and 1.1, approximately, million felony convictions.

Respondents’ theory would allow prosecutors in any of those circumstances to be sued for an alleged fabrication of evidence, and that’s something that could be — that’s something that’s not that hard to envision, since criminal evidence, unlike civil evidence, is messy.

It often involves cooperation agreements, leniency agreements and the like, and for that reason it’s very natural, and this Court has recognized that in Imbler, for the defendant in a criminal case to say: Well, I’m going to blame the prosecutor; they fabricated evidence, they made this story up; and — and then seek civil liability.

And what this Court has said repeatedly is that the societal interest suffers.

And that is why it’s not about, Justice Kennedy, protecting the bad apple and someone who exacerbates the harm by carrying the fabricated evidence through trial.

Rather, what this Court’s absolute immunity decisions consistently reflect is the principle that when someone is introducing evidence at trial, you don’t want to chill them in the performance of their duties in any way through the rubric of civil liability.

John Paul Stevens:

I don’t understand why at the time of introducing the evidence, the policy concerns that you’ve described arise, because we were criticizing what he did before he introduced the evidence.

Neal Kumar Katyal:

When — when the evidence is introduced and it’s the prosecutor himself who developed that evidence, maybe through flipping a witness or something like that, that–

John Paul Stevens:

Right, and he would know whether or not it was fabricated.

Neal Kumar Katyal:

–Well, he would know whether or not it’s fabricated, but the question is whether he would know that he could insulate himself from an allegation of wrongdoing.

And Respondents’ theory, which allows the due process clause to be some sort of free-standing right, would permit those suits even at the earliest stages of an investigation and permit strike suits even before the criminal process is underway.

And that, I think, is a fundamental point, which is this Court, no court has, ever really accepted the notion that prosecutors can be liable, that there is a cause of action for–

John Paul Stevens:

But haven’t we said that during the investigating stage their conduct is subject to different rules than during the trial?

Neal Kumar Katyal:

–For purposes of absolute immunity, and we agree with that.

So, for example, Justice Stevens, in your Fourth Amendment decision in 1975 on the Seventh Circuit, we agree there is liability when a prosecutor is, for example, conducting a raid or something like that.

There the constitutional violation is complete before the trial, and whatever the prosecutor does at trial–

John Paul Stevens:

I just don’t see the — I don’t to see if I can understand the reason why the time in which the violation is completed, namely after the trial, goes to the question of whether there is liability for pretrial conduct.

Neal Kumar Katyal:

–Well, we think there is no liability for pretrial conduct, and so long as you agree with me that the due process clause violation begins only at the trial–

John Paul Stevens:

It was completed at the trial, but it began when the — the phony investigation started.

Neal Kumar Katyal:

–The — the text of the due process clause says the deprivation of life, liberty, property with — under due process of law, and due process under this Court’s decisions is what happens at trial, not before.

John G. Roberts, Jr.:

Thank you, Mr. Katyal.

Mr. Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court: As I listen to Petitioners, I hear two arguments to why there ought to be liability for the prosecutor — rather, for the police officer and not the prosecutor, and both of those are arguments this Court has already heard and rejected.

On the immunity issue, the argument Petitioners make seems to distill to the proposition that as long as you’re suing a prosecutor for injuries inflicted at trial, the prosecutor ought to have absolute immunity.

Now, that’s not a crazy theory of immunity.

It’s exactly the theory of immunity that the Seventh Circuit adopted in the Buckley decision and this Court reversed, unanimously as to the press conference and by a majority opinion with respect to pretrial investigatory conduct involving fabrication.

If that sounds familiar, it should.

That’s the conduct that’s at issue here.

So the absolute immunity issue in this case was decided in Buckley.

Paul D. Clement:

Now–

Samuel A. Alito, Jr.:

When the issue, when the — the claim is based on the evaluation of the truthfulness of a witness who eventually testifies at trial, where’s the line to be drawn between the investigative stage and the prosecutorial stage?

Paul D. Clement:

–Well, I think, Justice Alito, the place to draw the line is the place this Court drew the line in Buckley, which is probable cause.

And before probable cause, when prosecutors are engaging in investigatory functions, I don’t think we want them shaping the witness for trial.

I think we want them trying to figure out who actually committed this crime and who would we have probable cause to perhaps initiate process against.

Samuel A. Alito, Jr.:

What concerns me about your argument is the — is a real fear that it will eviscerate Imbler.

Now, maybe you can convince me that it will not have that effect, but as the Solicitor General argued at the end of his argument, a very — in the typical criminal case, the witnesses are not John Q. Public with — who have never engaged in any wrongful activity.

A typical witness is — well, let’s take the case of the prosecution of a — a white — of the CEO of a huge corporation for insider trading or some other white-collar violation.

And the chief witness against this person is, let’s say, the CFO of this company, who when initially questioned by law enforcement officials and investigatory officials, made — made statements denying any participation in any wrongdoing, but eventually changed his story and testifies against the–

CEO at trial in exchange for consideration in a plea deal.

Now, your argument, in a case like that — or you could change the facts, make it an organized crime case, make it a prosecution of a drug kingpin who’s testifying — the witness against him is a lower-ranking person in the organization who has a criminal record, maybe has previously committed perjury, has made numerous false statements, is subject to impeachment.

In all of those cases a claim could be brought against the prosecutor.

Paul D. Clement:

Well, Justice Alito, let me try to answer it this way, which is you mentioned both organized crime cases and insider trading cases.

Well, I think if there is any circuit in which those kind of claims are going to be brought it’s probably the Second Circuit.

The Second Circuit has lived with this rule since the year 2000 and the Zahrey decision that’s already been mentioned.

There has not been a floodgate opening, there’s not been a torrent of these claims.

There’s been a trickle.

They remain very hard to allege, and the allegations here–

Samuel A. Alito, Jr.:

Well, I mean, that might be true as an empirical matter, but I don’t understand why it would be hard to allege.

Paul D. Clement:

–What would you–

Samuel A. Alito, Jr.:

What would you have to allege to get by Iqbal or to get by summary judgment?

You allege that the testimony at trial was false and that the prosecutor knew that it was false.

And in support of that you have prior inconsistent statements by the witness, and you may have the evidence that was introduced by the defense at trial that is inconsistent with that.

You have a triable issue.

Paul D. Clement:

–I don’t–

Samuel A. Alito, Jr.:

You certainly get by 12(b)(6).

Paul D. Clement:

–As I hear your hypothetical, I don’t think so, because the thing that’s missing is the allegation that the prosecutors fabricated that evidence.

This isn’t a case about coaching a witness.

John G. Roberts, Jr.:

Well, but what — what if there’s an acquittal?

Then you have at least a jury not believing the evidence, and that also is strong support for at least supporting an allegation.

John G. Roberts, Jr.:

He fabricated it; nobody believed it when it was presented at trial.

Paul D. Clement:

Well, two things, Your Honor.

One is obviously without the fabrication allegations that take place during the investigatory stage, you would be protected by Imbler.

Now, in the acquittal situations, this Court doesn’t have a case directly on point.

But if I read the Hartman decision, for example, Hartman v. Moore, and apply it to this context, I assume that in the context of an acquittal if you tried to bring a claim like this, this Court would interpret through the common law the — a malicious prosecution type element that you would have to satisfy.

Samuel A. Alito, Jr.:

Why is it difficult to allege fabrication?

The — the allegation is that at point A this witness denied that the defendant did anything wrong, and then at point B the defendant told an entirely different story after having received from the government a plea deal that promises no prosecution and entry into the witness protection program or something like that.

That certainly is sufficient evidence to — of fabrication, is it not?

Paul D. Clement:

Well, Justice Alito, let me say this.

First of all, you are going to have to pinpoint those kind of allegations pre-probable cause, which is not going to be the case in a lot of cases.

Second of all, I mean, this Court–

Antonin Scalia:

I don’t know what you mean by that.

Paul D. Clement:

–In — in the typical case, if — if the witness perhaps in the first instance comes up with one testimony and later comes up in — with a different story later, the question for purposes of absolute immunity is going to be, did all of the conduct that you’re alleging, the fabrication, did all of it take place before probable cause attached?

And in a lot of cases prosecutors don’t even get involved until after probable cause, until after there have been arrests, something like that.

And in those cases–

Samuel A. Alito, Jr.:

That’s an entirely false picture of the way any sophisticated prosecution is handled today, completely false.

You want — the prosecutor may not know whether there’s probable cause until the prosecutor interviews the witness.

Paul D. Clement:

–And, again–

Samuel A. Alito, Jr.:

And so then you have to go back and determine whether there was — if there wasn’t probable cause before the interview, then there is liability.

But if there was probable cause before the interview, then there isn’t liability.

Paul D. Clement:

–I think if I understand your hypothetical, the question would actually be whether there was probable cause before the re-interview, because if at the point–

Samuel A. Alito, Jr.:

Before the re-interview, because the prosecutor doesn’t want to take the case to the grand jury before looking this witness in the eye and seeing whether this — this guy who’s got a lot of impeachment baggage is — is a — is a credible witness.

Paul D. Clement:

–Well, two things, Justice Alito.

First of all, if you have all — if you had the interview and the re-interview before probable cause and you have the allegations that it was done for the avowed purpose of depriving the person of their liberty, then you would, I think, apply Iqbal, and you would ask under all the circumstances of that case whether it’s a plausible allegation.

And this Court is obviously in a better position than I am to say how it would apply Iqbal in those kind of cases.

But what I can tell you is that for nearly a decade the Second Circuit has had this rule.

Now, the Second Circuit is the circuit that brought you Iqbal.

So for that same decade they did not have the rule of Iqbal, and yet they didn’t have a torrent of these claims.

So, I think going forward, if you recognize these claims–

John G. Roberts, Jr.:

How — how do you — I mean, we hear that type of argument every time, because there is usually a circuit conflict here, and you look at one circuit and say the world hasn’t fallen.

John G. Roberts, Jr.:

But you have no idea how many of these claims are asserted and dismissed at an early stage or — or whatever.

You’re saying, what, that there haven’t been many Second Circuit opinions on this question?

Paul D. Clement:

–I think if you look at reported, both unpublished and published Second Circuit decisions at the district court level and the court of appeals level, you would find very few cases that even cite Zahrey.

I think it’s something like maybe 17 I think is what we found.

John G. Roberts, Jr.:

Do you think there will be — do you think there will be more if we agree with your theory?

Paul D. Clement:

In the Second Circuit?

I don’t think so.

I think it will be the same number in the Second Circuit.

Now, in the Seventh Circuit that has lived with the Buckley remand rule, I suppose there will now be a couple of dozen cases there.

But I do think it’s revealing that the circuit that has certainly the kind of cases that Justice Alito was dealing with, has not had a flood of these cases.

As far as I’m aware, the U.S. attorney’s offices in that circuit have not had to rework the way they do business in those circuits, and I do think that these are claims that are going to be difficult to allege.

John G. Roberts, Jr.:

Well, but it’s also you don’t really know, right?

In other words, we’re concerned about the chilling effect on the prosecutors.

We don’t know what the impact of the Second Circuit’s decision has been on the prosecutors.

Paul D. Clement:

Well, Your Honor, we don’t know for sure.

We don’t know either way, because either way this Court is going to adopt a clear rule.

What I can say is at least I’m pointing to empirical evidence in a circuit that has lived with this rule for a decade.

That seems to me a better empirical basis to go on than absolutely nothing.

But let me give you another example, which is this Court a couple of years ago decided a decision called Hartman v. Moore.

Hartman v. Moore sort of recognized that there was a tort called, I think, retaliatory inducement to prosecute.

Now, in footnote 8 this Court recognized that actually you could sue a prosecutor for retaliatory inducement to prosecute if you focused on the investigatory activities.

That’s exactly the same basic theory we have here, which is you focus on the investigatory activities of a prosecutor and say that there is a valid 1983 claim.

Now, again, to my knowledge there have not been a flood of Hartman claims brought against prosecutors.

I think–

John G. Roberts, Jr.:

What — what is the basis for the 1983 claim without the submission at trial?

Paul D. Clement:

–Without the submission at trial — I mean, it would depend, I suppose, on the circumstances.

You could have, certainly, a Fourth Amendment–

John G. Roberts, Jr.:

Well, you know I’m not talking about the Fourth Amendment violation, which is complete whether there’s a trial or not.

Paul D. Clement:

–Well — and then maybe I just need a concrete hypothetical.

Let’s say — let’s say — let me — let me provide one.

Paul D. Clement:

Suppose that there was this — the prosecutor put on this fabricated evidence at trial, and then the — the whole case sort of unraveled because the system actually worked the way it’s supposed to.

On cross-examination the witness cracked and it became clear that there was this conspiracy to use perjured evidence.

Now, at that point — I mean, I suppose the government’s theory would be because you never deprived the person of their liberty, the knowing use by the prosecutor of perjured testimony at trial does not violate the due process clause.

But I hope that’s not the rule.

I mean, I hope that in a Mooney case, if you bring the — make a Mooney violation against somebody who is actually guilty, so you knowingly use perjured testimony against somebody that’s — that’s guilty, so if you did a harmless error analysis, you would say, well, the use of the perjured testimony really didn’t deprive the person of their liberty because they were otherwise–

Anthony M. Kennedy:

What’s — what’s — what’s your best authority for the proposition that there’s liability in the case the Chief Justice put?

What’s your best case?

Paul D. Clement:

–I — I — I’m not sure I have a best case for that, Justice Kennedy.

I mean, let me — let me give you what I think is a very good case that illustrates a similar principle, but I — I will — I will be candid that I think this is an extrapolation from Mooney, but a very sort of clear extrapolation from Mooney.

My best case in some ways I think is Malley, because their proposition seems to be that — this is the other argument you have heard and rejected — is that if there’s an absolutely immune act in the causal chain, then that somehow means that there is no violation.

Think about who was sued in the Malley.

It was the police officers.

What did the police officers do?

They procured an invalid arrest warrant.

Now, did their actions independent of the absolute immune act of the magistrate injure the plaintiffs?

No.

Without the magistrate issuing the warrant, there was no arrest, there’s no search, there’s no injury to the plaintiffs.

So we allow in our system somebody to bring a constitutional tort claim, even though there’s an absolutely immune act in the causal chain.

The lower court in Malley actually accepted exactly this argument, that if you have any absolutely immune act in the causal chain that breaks it off.

This Court rejected it and was frankly fairly dismissive, dismissed it in the footnote, footnote 7 of the opinion.

Anthony M. Kennedy:

You will have to refresh my memory.

Wasn’t that a Fourth Amendment violation ultimately?

Paul D. Clement:

It was a Fourth Amendment violation.

Anthony M. Kennedy:

So that — so that’s not–

Paul D. Clement:

No, I think it illustrates the principle, which is you don’t have to have a completed constitutional violation in your 1983 action.

I mean, Malley illustrates that principle, but so does the text of — of section 1983, frankly.

Section 1983 doesn’t force you to have a completed constitutional violation.

It provides liability if you subject someone to a constitutional violation or cause them to be subjected to a constitutional violation.

Antonin Scalia:

The difference here is that the — the absolutely immune act which follows the — the unlawful act is — is an absolutely immune act by the very actor who performed the earlier act that — that you say induces liability.

And so the argument is, what’s the use of giving him liability later on if — if you can simply drag him into litigation by — by alleging that he at an earlier stage committed a violation?

Paul D. Clement:

Well, the–

Antonin Scalia:

That’s the difference.

I mean, to me that’s the — the crux of this, that it is the same actor who has absolute liability whom you’re trying to get on the basis of — of earlier action.

Paul D. Clement:

–Well–

John Paul Stevens:

That’s the reason the rule seems perverse.

Paul D. Clement:

–What’s that?

John Paul Stevens:

That’s the very reason the rule they’re arguing for seems perverse.

Paul D. Clement:

Well, I would ask — I would ask both of you to go back and read two things, and I would particularly like Justice Scalia to go back and read your separate opinion in Burns.

Because in Burns you confronted just this issue.

You conceptualized what happens at the warrant stage as a variant of malicious prosecution and you said: Now, could a prosecutor, sort of as kind of a complaining witness in that context, procure a warrant that they were subsequently involved in?

And you said: I don’t see any reason why not.

I think you got it right there.

The other thing I would ask you to look at is footnote 8 of the Hartman v. Moore decision, because there you were dealing with a retaliatory prosecution claim.

Now, the Court’s opinion was very careful to say, you know, it’s really not a retaliation — a retaliatory prosecution claim; what it is is a retaliatory inducement to prosecute case.

John G. Roberts, Jr.:

If you cannot rely on anything that goes on at the trial to establish the due process violation, what do you rely on to establish the violation?

Paul D. Clement:

Well, Mr. Chief Justice–

John G. Roberts, Jr.:

I guess the question is where is it complete, or do you say it doesn’t have to be a complete violation?

Paul D. Clement:

–Well, I guess what I would do, Mr. Chief Justice, is try to take issue with your premise, which is that we can’t advert to the absolute immune act at all.

Of course we can.

I mean, this isn’t–

John G. Roberts, Jr.:

Well, let’s say that you — let’s say that you can’t because we read Imbler as conferring absolute immunity on what goes on at the trial.

And if you can’t advert to that, you don’t have a constitutional violation, right?

Paul D. Clement:

–Well, I would still say we do, but please let me try to take one more crack at the premise, which is Imbler is not a use immunity case and this Court has rejected the proposition that just because you’re absolutely immune for an act there’s no evidentiary use of that in going after conduct that was earlier in the causal chain.

This Court specifically confronted that in a case called Dennis v. Sparks that was with, you know, the granddaddy of them all, judicial immunity, and said even the judge’s actions could be proved up as part of a tort action.

So there is no use immunity for–

John G. Roberts, Jr.:

Against — against the judge?

Paul D. Clement:

–It wasn’t against the judge, but I — but with all due respect, I don’t think that matters.

And I also think–

John G. Roberts, Jr.:

Well, that’s the distinction here in this case, isn’t it?

Paul D. Clement:

–Well, but — but it’s a distinction without a difference.

Paul D. Clement:

It’s a distinction this Court confronted in — in Hartman in footnote 8.

It’s a distinction Justice Scalia confronted.

And also, the consequences of accepting their view is to really turn all of your absolute immunity cases into a fool’s errand.

I mean, think about Kalina.

I mean, the supporting affidavit wasn’t the thing that inflicted injury.

Now, the thing that inflicted injury were the two documents that the supporting affidavit supported, the warrant and the information.

Now, it would have made no sense for this Court to say, well, there is only qualified immunity for the supporting affidavit, so let’s send this back to the lower court, if you couldn’t even get into evidence the fact that there was an information or a warrant.

So too in the Malley case, of course you can use — now it’s a different — it’s a different person.

In Kalina — Kalina, it’s the same person.

Or take a look at Burns, for example.

In Burns the prosecutor’s advice to the police officer, that’s not what injured the plaintiff in that case.

It was the warrant that was eventually procured.

John G. Roberts, Jr.:

In terms of the chilling impact on the prosecutor, what difference does it make whether it’s at trial or pretrial for use at trial?

Paul D. Clement:

Well, I think it makes all the difference in the world in the sense that if — if they know that everything they do at trial is going to be protected, those functions, which is the basis of this Court’s functional approach to absolute immunity, are going to be protected.

Now, if they’re going to be–

Antonin Scalia:

But it won’t be protected.

They won’t have that assurance, because when they — when they produce evidence at trial, oh, yeah, I guess the production at trial will be protected, but you’re — you’re telling us that they can go back and say, ah, but you got that evidence in a bad manner, and therefore we can sue you, not for introducing it at trial, but for fabricating it before trial.

I — I don’t see that there is much of a difference as far as the deterrent effect upon the prosecutor is concerned.

Paul D. Clement:

–Well, I think there is going to be an effect on the deterrent effect on the prosecutor pretrial, which is they will be procured.

I mean, think about the contrary incentive you’re — you’re creating.

Suppose you’re a prosecutor.

You’ve participated in the misconduct before trial.

You now have the decision to make: Okay, I was — I was complicit in the fabrication of this perjured evidence; should I put it on into evidence?

Well, let’s see.

If I don’t put it on into evidence and I come clean now, I’m actually liable for the arrest and all the pretrial detention.

If I actually introduce it into evidence now, I’m scot-free.

Stephen G. Breyer:

There’s a different tendency, which I would say this is a slight fluke, what you’re describing.

I’m more worried about what Justice Alito brought up, that, other things being equal, I think it’s probably a good thing to get prosecutors involved in the questioning process.

That — that has a kind of check on the police.

And the concern I’d have is that the — this will discourage the prosecutors from becoming involved in the witness — witness questioning process, at least not before the police are well on the way.

Stephen G. Breyer:

And that is a very negative incentive, I would think.

So what is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk of that kind of disincentive?

Now, are you just going to say, well, Buckley?

Paul D. Clement:

Well–

Stephen G. Breyer:

Or is there something — I mean, I can see Buckley with the, you know, probable cause.

It turns on and off as you’re talking to the witness.

First what he says, you have the probable cause; then you don’t; then you do; then you don’t.

I mean, I — I’m not — I just want you to give your best thought to this problem and tell me what is the most safe rule that will allow you to win your case?

Paul D. Clement:

–Well, Justice Breyer, I mean, I would say that there is no reason for this Court to disturb the line it drew in Buckley.

Now I could, because of this case–

Stephen G. Breyer:

We have amicus briefs here that give us a lot of reason.

They say — they say it’s very discouraging to, you know, AUSAs or DAs going in and talking to the witnesses with the police.

Paul D. Clement:

–Well–

Stephen G. Breyer:

And they say they do it in Chicago, I think.

In other places, they do it a lot.

Paul D. Clement:

–Well, I mean, another thing presumably, Justice Breyer, you want to encourage is having the police officers come to the prosecutors and get legal advice about what they’re doing.

And this Court squarely confronted that question in Burns and said the advice-giving function, which is a function only a prosecutor, only a lawyer anyways, can perform–

Anthony M. Kennedy:

–Well, could you answer Justice Breyer’s question, which I — I think raises a — a critical point in terms of Justice Alito’s examples of talking to the witness.

Why isn’t that at some point — I think in Buckley, the “judicial phase”.

Why is this the judicial phase?

Paul D. Clement:

–Well, Justice Kennedy, let me respond.

Let me say why I don’t think I can really improve on the probable cause line.

I mean, in this case, the police officers and the prosecutors were involved in this from the get-go.

Anthony M. Kennedy:

No, but probable cause doesn’t work because you have — you have probable cause once you fabricate the evidence.

Paul D. Clement:

Well, I think–

Anthony M. Kennedy:

That’s circular.

Paul D. Clement:

–No, I don’t think so.

I think for the purposes of evaluating when there’s probable cause, you have to eliminate the fabricated evidence, and so I think that you evaluate probable cause, but here’s why I think it’s the right line, Because think about the prosecutor’s special function.

If you don’t have probable cause to arrest any individual for a crime, then the function the police officers ought to be performing is one of a truth-seeking function and that is a classic police investigatory function.

Now, the moment they have probable cause, I’m willing to listen to the argument that at that point they shift roles, and at that point they’re not looking at the evidence the way the police officer is, just to find out whodunit; but they’re looking at it to say, well I have a job to do, I have to put a case on, and, you know, this person says what they say, and, you know, there’s some problems with that and the jury’s not going to believe that, so let me talk to him some more.

Paul D. Clement:

That’s why I think the probable cause line is not only administrable, but it makes sense in this context.

Anthony M. Kennedy:

Suppose the prosecutor isn’t sure there’s probable cause and he calls — calls in the accountant, the CFO, and really doesn’t begin to believe his story, so he starts probing and finally he gets the CFO to change his story with the plea — plea bargain.

Would that be part of the judicial process?

Or is that still clearly investigatory?

Paul D. Clement:

I think at the point — if the interview begins and he doesn’t think he has probable cause, I think that that–

Anthony M. Kennedy:

Well, he’s trying to find out.

That’s what–

Paul D. Clement:

–Of course he is trying to find out.

But he’s — but he’s not trying to find out if there’s probable cause necessarily to identify a particular suspect.

What he’s trying to do, is there probable cause to arrest anyone?

And that’s exactly the question a police officer asks every single day.

Stephen G. Breyer:

Well, also, you’re making me more worried because I think, if 85 percent of all the defendants — or 90 percent plead guilty, it might be a highly desirable thing to get prosecutors involved in the truth-discovering process, I mean, so that they don’t just see themselves as the job of — well, we’re going to take somebody, put them in jail.

Maybe — maybe that’s a reason for pushing it back a little bit, this — this line.

Paul D. Clement:

Well — you know, I’m not sure what the logical place to push it back any further is, and I think — you know–

Stephen G. Breyer:

Where have you got it now?

You’ve got it as when there is probable cause for believing that someone has committed a crime?

Paul D. Clement:

–Yes.

Stephen G. Breyer:

Someone?

So it’s someone — needn’t be the particular person they eventually indict?

Paul D. Clement:

That’s right.

Stephen G. Breyer:

Uh-huh.

Paul D. Clement:

And let me say this, Justice Breyer, I mean, I know you don’t want to talk about Burns, but I’d like to, just for a second, because I think it’s a very similar policy concern.

As a policy matter, sure, we want prosecutors to get — to give advice to police officers, but qualified immunity is not insignificant protection, and think about that, I mean, the incentives you’re creating for the same anomaly that the Court recognized in Buckley.

The incentive would really–

John G. Roberts, Jr.:

Well, we thought it was — I’m sorry.

Why don’t you finish your answer?

Paul D. Clement:

–I just wanted to say the incentive would really be perverse.

Under Burns, if the police — if the police officer comes to the prosecutor and says — you know, we want to fabricate evidence to frame it, can we do it?

And the prosecutor says, yes, you can do that, go ahead; there’s qualified immunity.

Now, if the prosecutor says, go ahead and let me help, there would somehow be absolute immunity.

Paul D. Clement:

I mean, that is really an anomalous result, that it’s the n anomaly that caused this Court in Buckley to draw the line at probable cause.

John G. Roberts, Jr.:

I was going to suggest in response to your point that — you know, qualified immunity is really significant.

Of course, it is, but we’ve recognized, in a number of contexts, in the judicial area, for example, that it’s — it’s not enough.

We have also recognized that in the prosecutorial area, and trying to draw the line where you do — I think this was one of the points Justice Alito was making, is that, sometimes, you’re investigating and preparing your case at the same time.

You don’t just sit back and say, I’m — I’m just going to look and see what I can find.

You have particular areas.

The prosecution requires you to show four things, So you are looking at those four things.

You are preparing your case, and you’re investigating.

Paul D. Clement:

And, again, the Court addressed exactly this Court in the — exactly that issue in the Buckley decision and said, sure — you know, from — with the benefit of hindsight, you can sort of retrospectively look and make anything in the investigatory stage part of — and part and parcel of the prosecution.

And I don’t think that was something that this Court saw as a reason not to draw a clean line that’s consistent with the functional approach.

It’s consistent, not just with Buckley, but with Burns and with Kalina and with a whole host of this Court’s decisions.

Samuel A. Alito, Jr.:

In — in answer to Justice Breyer’s question, would — would it be a — would it be practical and conceptually correct to draw the line at the stage at which the prosecutor is interviewing witnesses to evaluate credibility?

So, at that stage, the prosecutorial function has begun and absolute immunity would kick in.

Paul D. Clement:

Well, if I could add, I mean, I suppose I might be able–

Samuel A. Alito, Jr.:

Not on whether there is probable cause because probable cause is — is evanescent.

It comes, and it goes.

It is — it is — it is inextricably intertwined with what the prosecutor is doing in questioning the witness.

Paul D. Clement:

–And let me say this: If I could add a couple of words, I think we could probably live with that line, which is, if the prosecutor is interviewing those witnesses with an eye towards credibility for use at trial, I mean, that’s a line that, I think, would be, I think, probably pretty consistent with probable cause, but something that we could live with, but–

Samuel A. Alito, Jr.:

But with a line toward investigating credibility for use at a trial, which is — which is, at that point, foreordained, but, if the evaluation is being done for the purpose of determining whether there should be a trial, then, no.

That’s your answer?

Paul D. Clement:

–Well, I mean, I worry that words are being put in my mouth.

I would say that, if the prosecutor is interviewing the witness for the purpose of judging their credibility at trial, then that’s something for which you may be able to sort of tweak the line on Buckley and say that’s covered.

I actually think it won’t make any difference because I think that should only be happening after probable cause.

If I could–

John G. Roberts, Jr.:

Well, your approach, then, encourages prosecutors to be trigger happy.

They’re prosecuting right now because they know, then, that everything else, they have absolute immunity, so — you know, shoot first and ask questions later.

Paul D. Clement:

–Well, shoot first — you mean go to an impartial magistrate and try to get somebody arrested or–

John G. Roberts, Jr.:

No, just begin the formulation.

I’m — I’m starting to prosecute this person, rather than saying, let’s look, let’s investigate, let’s interview, and then decide who we’re going to prosecute.

Paul D. Clement:

–Well, I suppose–

John G. Roberts, Jr.:

In Justice Alito’s hypothetical, you’ve got a CFO, you can — you know, you’ve probably got probable cause to go after him as well, but you want to begin interviewing him, to see if he’s going to flip in your case against the CEO.

Paul D. Clement:

–Well, if you have probable cause, then I think you’re on the other side of the Buckley line, and that’s an objective determination, and I think–

John G. Roberts, Jr.:

So you’ve got — you’ve got to make that decision early in the process, rather than later.

Paul D. Clement:

–Well, I think it’s — I’m not sure it’s a decision you have to make.

I think it’s actually something that would be evaluated objectively after the fact, and I think the way that this Court should approach this case is neither of the parties before you have asked this Court to overturn Buckley.

I wouldn’t do it under those circumstances, but, of course, it’s worth adding that, if you were going to overturn Buckley, then the place to probably start would be to go back to first principles, and if you’re going to go back to first principles, then what you’re going to find is that there was no common law support at all for absolute immunity.

And I wouldn’t think that this Court was particularly interested in coming up with implied immunities that aren’t in the statute and had no basis at the common law, and that’s why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text and it lacks support at the common law.

So we’re — we’re happy with the lines that this Court has already drawn.

But if the Court’s going to go back to first principles, well, let’s go back to first principles and look at — the at the statute Congress passed in 1871.

That statute did not provide any immunities, and I do think, as we say in the brief, this is a case where it’s important not to lose the forest for the trees because this is a statute was passed — passed in 1871.

This is one of the great civil rights statutes.

Is it really plausible to think that the Congress that passed this statute didn’t want to provide a remedy in the circumstances before the Court today?

I think it’s clear, from this Court’s cases — there may not be a case that lines up all the dots exactly, but I think it’s clear, from this Court’s cases, that the police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable.

I think the prosecutor who engages in the pretrial misconduct and then doesn’t participate in the trial is just as liable as that police officer, and I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is, if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial.

For all those reasons, we think the Court should affirm.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Clement.

Mr. Sanders, you have five — five minutes remaining.

Stephen Sanders:

Thank you, Mr. Chief Justice.

We have four main points.

Beginning with the Second Circuit’s decision in Zahrey and subsequent cases in the Second Circuit, have significantly cut back on the meaning of Zahrey.

The Wray decision, which we discussed in our reply brief, the Gonzalez decision, which we discussed in our opening brief, have not allowed for this kind of continuous liability for a prosecutor.

They have made very clear, particularly the Gonzalez decision, that when it is a prosecutor’s actions before a judge advocating on behalf of the State, that are responsible for a deprivation of liberty, in that situation, absolute immunity applies.

I think it’s important to understand the consequences–

Antonin Scalia:

What — what does that prove?

What does that prove?

I don’t understand why you bring that up because it shows that the fact that there aren’t many cases, only 17 in the — in the Second Circuit, it doesn’t mean anything because the Second Circuit is not applying as liberal a rule as your opponent suggests.

Is that–

Stephen Sanders:

–No, Your Honor.

I think it’s to — I think it’s to say that the Zahrey decision has not had the kind of impact and has not been applied in a way that respondents are asking for it to be applied.

Antonin Scalia:

–Yes.

That’s — that’s just what I said, and, therefore — and had it been applied that way, there would have been more than 17 cases in the Second Circuit.

Stephen Sanders:

I’m not sure I understand the question.

Antonin Scalia:

Okay.

Stephen Sanders:

The — I think it’s important to understand the consequences of affirming the courts below, either on the basis of the Zahrey theory or on the freestanding due process theory offered by respondents.

It would work a radical change in the law of immunity because it would mean that far more wrongful conviction claims against prosecutors would go forward under only qualified immunity.

That is the inevitable consequence of affirming the courts below in this case.

These cases are not difficult, as Justice Alito said, to plead, particularly because, in most of these sorts of cases, most of the discovery will have been done during the post-conviction review process.

And so there will be plenty of — plenty of grounds for a plaintiff to allege a plausible violation during the investigative process and survive a motion to dismiss or survive summary judgment, even if, ultimately, that comes to nothing, the consequence would be to hold prosecutors to inconsistent standards of liability, qualified immunity or absolute immunity, based simply on the allegations in a complaint, something this Court has specifically said is — is not appropriate and should not be–

Ruth Bader Ginsburg:

I want, before you’re finished, to get a clear picture of your view of the dimensions of the claim because you rely heavily on the trial part.

Everything proceeds as it was alleged to have proceeded in this case, except that just before the trial begins, Harris comes forward and said it was all a pack of lies, and so there is no trial.

Stephen Sanders:

–Uh-huh.

Ruth Bader Ginsburg:

Is anyone in this picture liable?

The defendants have been incarcerated for some time, but when it blows up, they’re let out.

No trial, but everything else, the same.

Stephen Sanders:

Your Honor, I believe there would be no due process liability.

There might be two independent grounds for liability under some Fourth Amendment malicious prosecution theory, which is not at issue in this case, and possibly under State law remedies, as Justice Kennedy and Justice Thomas indicated in their concurrence in Albright, we do not go to the Federal constitution’s Due Process Clause unless we’re sure that the plaintiffs have exhausted their possible remedies under State law.

In this case, Iowa State law provides a cause of action for malicious prosecution.

Ruth Bader Ginsburg:

You said — I think your position is that due process begins when trial is underway, and before that due process doesn’t enter the picture?

Stephen Sanders:

Your Honor, I believe that this Court’s decisions make clear that due process applies to the judicial process; that is, the filing of charges and the later conduct of the prosecuting–

John Paul Stevens:

Yes, but what about the pretrial detention?

Isn’t that a deprivation of liberty?

Stephen Sanders:

–Your Honor, it would be, but that would be Fourth Amendment territory.

John Paul Stevens:

Why would it be Fourth Amendment?

Why isn’t it Fourteenth Amendment right on the nose?

They’re deprived of liberty without due process of law.

Stephen Sanders:

Your Honor, this Court — seven justices in this Court’s decision in Albright agreed that there was no due process cause of action for the wrongful institution of criminal proceedings, that in that case there may be some sort of Fourth Amendment claim.

There may be some sort of State law claim under Parrot v. Taylor, but I have not–

John Paul Stevens:

But that case talked about the institution of prosecution, not the deprivation of liberty during pretrial detention, which is a different matter.

Stephen Sanders:

–Your Honor, I believe the Court’s Fourth Amendment jurisprudence would still indicate that that is a concern of the Fourth Amendment, not the Due Process Clause, and that pursuant to Paul v. Davis and Parrot v. Taylor, there may indeed be some sort of State law cause of action for defamation or loss of status, but that there is no support for a Federal due process claim.

John G. Roberts, Jr.:

Thank you, Counsel.

Counsel.

The case is submitted.