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A substantial number of §1983 plaintiffs allege that their constitutional rights were violated as a result of a law enforcement officer’s perjurious grand jury or trial testimony. These claims typically assert violations of one or more of the following constitutional rights: (1) the due process right to a fair criminal trial; (2) deprivation of liberty from fabrication of evidence; and (3) the Fourth Amendment right to be free of “malicious prosecution.”

For a §1983 claim based upon a law enforcement officer’s perjurious testimony to succeed, the plaintiff will have to overcome the officer’s absolute witness immunity. The U.S. Supreme Court has granted absolute immunity to law enforcement officers who testify either at a criminal trial, Briscoe v. LaHue, 460 U.S. 325 (1983), or before a grand jury, Rehberg v. Paulk, 566 U.S. 356, 132 S. Ct. 1497 (2012). This absolute immunity applies regardless of how malevolent the officer’s wrongdoing, or how injurious it was to the arrestee, and even if it caused a wrongful conviction. The decision in Rehberg not only extended Briscoe absolute immunity for trial testimony to grand jury testimony, but also held that absolute immunity encompasses an officer’s preparation for testifying, as well as an alleged conspiracy to give perjurious testimony. The court reasoned that if absolute immunity did not encompass witness preparation and an alleged conspiracy to give false testimony, the §1983 plaintiff would be able to circumvent the immunity by claiming damages not for the officer’s testimony itself, but for his conduct in preparation for the testimony. “In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor … engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony.” Rehberg, 132 S. Ct. at 1506-07. The court refused to allow absolute witness immunity to be “so easily frustrated.” Id. at 1507 (footnote omitted). Rehberg is strong medicine indeed!

A §1983 plaintiff confronted with absolute witness immunity may respond that he is not seeking damages for the officer’s in-court testimony or even for its preparation, but for out-of-court conduct such as falsifying an affidavit or police report. The court in Rehberg spoke to this issue in a footnote to its conclusion that absolute witness immunity encompasses acts in preparation for testimony:

Of course, we do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officers who falsify affidavits Kalina v. Fletcher, 522 U.S. 118 (1997); Malley v. Briggs, 475 U.S. 335 (1986) and fabricate evidence concerning an unsolved crime Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

Rehberg, 1432 S.Ct. at 1507 n.1.

This “of course” footnote has been the subject of many lower court decisions attempting to apply the “thin but conspicuous line” between, on the one hand, law enforcement officers who provide grand jury testimony and their related preparatory activity and, on the other hand, officers who either falsify affidavits or fabricate evidence or act as complaining witness by “set[ting] the wheels of government in motion by instigating a legal action.” King v. Harwood, 852 F.3d 568, 584 (6th Cir. 2017), quoting Rehberg, 132 S. Ct. at 1597, in turn quoting Wyatt v. Cole, 504 U.S. 158, 164-65 (1992). For examples of decisions applying Rehberg‘s footnote one, see Stinson v. Carson, 799 F.3d 833 (7th Cir. 2015); Lisker v. City of Los Angeles, 780 F.3d 1237 (9th Cir. 2015); Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2014), cert. denied, 135 S. Ct. 2335 (2015).

In Coggins the Second Circuit was faced with whether a law enforcement officer who fabricated a police report and whose later testimony before the grand jury paralleled that report was protected by absolute witness immunity. The circuit court held that absolute immunity protected the testimony but not the earlier fabricated police report. Were the result otherwise, “[a]ny police officer could immunize for §1983 purposes any unlawful conduct prior to and independent of his perjurious grand jury testimony merely by testifying before a grand jury.” Coggins, 716 F.3d at 113.

A §1983 plaintiff whose claim falls within Rehberg‘s “of course” footnote may well have another obstacle to overcome. The court in Rehberg concluded “that a grand jury witness has absolute immunity for any § 1983 claim based on the witness’ testimony” and stated, without citation, that absolute witness immunity “may not be circumvented … by using evidence of the witness’ testimony to support any other §1983 claim concerning the initiation or maintenance of a prosecution.” Rehberg, 132 S. Ct. at 1506. A claim challenging the “initiation or maintenance of a prosecution” would be a malicious prosecution claim.

This aspect of Rehberg opinion is troubling. Before this language barring use of grand jury testimony showed up in Rehberg, the Supreme Court’s absolute immunity jurisprudence was widely understood to mean that an official granted absolute immunity was shielded from liability and, in appropriate cases, from the burdens of defending the litigation, such as avoidance of pre-trial discovery, but was not immune from being compelled to testify. That is certainly the understanding of absolute judicial and prosecutorial immunity. Whether legislative immunity protects a legislator from being compelled to testify raises a more difficult issue because of the unique concern that compelling a legislative official to testify may constitute an unwarranted judicial intrusion into the legislative process. But that consideration aside, pre-Rehberg the heart of the absolute immunities was immunity from liability, not a privilege not to testify.

Be that as it may, litigators and lower court judges have been grappling with the Rehberg “thou shall not circumvent” dictum. The question thus arises: When should a court conclude that a §1983 plaintiff may not use a police officer’s testimony to support a claim concerning the initiation or maintenance of a prosecution because doing so would circumvent absolute witness immunity?

In Marshall v. Randall, 719 F.3d 113, 116-17 (2d Cir. 2015), the court held that use of an officer’s grand jury testimony to impeach the officer’s testimony in a §1983 action “does not violate Rehberg.” The court reasoned that “[e]vidence that is inadmissible as direct proof is frequently permitted for impeachment purposes,” and juries are often instructed to consider evidence only on the issue of credibility. Id. at 117.

Let’s now assume that the §1983 plaintiff seeks to introduce the officer’s grand jury testimony not to impeach but as substantive evidence for its truth. What does Rehberg mean when is says that the plaintiff may not circumvent the officer’s absolute witness immunity “by using the witness’ testimony to support any other claim concerning the initiation or maintenance of a prosecution”? This requires an inquiry into the elements of a § 1983 malicious prosecution claim.

The prevailing view is that a §1983 malicious prosecution claimant must establish: (1) an unreasonable Fourth Amendment “seizure”; and (2) the common-law elements of malicious prosecution, namely, (a) initiation of the criminal prosecution; (b) without probable cause; (c) with malice; and (d) termination of the prosecution in favor of the accused. See, e.g., Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995). The Sixth Circuit, however, has persuasively concluded that because the constitutionality of a Fourth Amendment seizure is determined under an objective reasonableness standard, malice is not an element of the claim. Sykes v. Anderson, 625 F.3d 294, 310 (6th Cir. 2010). Accord Manuel v. Joliet, 137 S. Ct. 911, 925 (2017) (Alito, J., dissenting),

In Coggins, the plaintiff’s §1983 malicious prosecution claim was based on allegations that police officer Buonora (1) knowingly falsified and omitted material facts from his police report; (2) lied to the district attorney; and (3) gave perjurious testimony before the grand jury. The grand jury indicted Coggins for criminal possession of a weapon and resisting arrest, but the charges were subsequently dismissed on motion of the district attorney.

The circuit court read Rehberg as requiring a determination “whether the plaintiff can make out the elements of his §1983 claim without resorting to the grand jury testimony …. Conversely, if the claim requires the grand jury testimony, the defendant enjoys absolute immunity under Rehberg.” Id. at 113.

The claim that Buonora gave perjurious grand jury testimony was within the heart of Rehberg absolute witness immunity. However, Coggins’s claims that Buonora prepared a false police report and lied to the district attorney were not within absolute witness immunity because they could be proved without resort to his false grand jury testimony. And, this result held even though the false testimony paralleled the false information in the police report and information given to the district attorney. Were the result otherwise, a police officer could immunize for §1983 purposes any unlawful conduct occurring outside the grand jury room merely by testifying before the grand jury. That would be inconsistent with the teaching of Rehberg footnote 1 that absolute witness immunity does not encompass all of a police officer’s conduct outside the grand jury room. 776 F.3d at 113. The circuit court thus concluded that the “fact that Buonora’s grand jury testimony paralleled information he gave in other contexts does not mean that Coggins’s malicious prosecution claim was ‘based on’ Buonora’s grand jury testimony.” Id.

The Sixth Circuit in Sanders v. Jones, 845 F.3d 990 (6th Cir. 2017) and King v. Harwood, 852 F.3d 568 (6th Cir. 2017) carefully analyzed the impact of Rehberg‘s prohibition against using grand jury testimony on the continued viability of §1983 malicious prosecution claims, specifically on (1) the initiation and (2) lack of probable cause elements. Remember, the Sixth Circuit does not consider malice an element of the claim. Sanders and King are quite detailed decisions, and we all do our best to summarize key aspects succinctly.

The initiation element of a malicious prosecution claim requires the plaintiff to demonstrate that the defendant officer significantly influenced or participated in the decision to prosecute. The court in Sanders found that absolute immunity for grand jury testimony does not preclude the plaintiff’ from being able to satisfy the initiation element because initiation can be demonstrated other than by use of grand jury testimony, such as by the police officer’s submission of a false police report to the district attorney’s office. The court in Sanders, however, found that absolute witness immunity negated the plaintiff’s ability to prove lack of probable cause to prosecute. Although the presumption of probable cause from a grand jury indictment is rebuttable, the circuit court ruled that a police report by itself is insufficient to rebut the presumption. The court, however, indicated that the result might be different if the §1983 plaintiff claims not that the police officer’s false police report misled the district attorney and grand jury, but that the officer falsified or fabricated evidence.

The court returned to the probable cause issue in King v. Hardwood, decided some three months after Sanders, by a different Sixth Circuit panel. King retreated from broad language in Sanders sharply limiting a §1983 plaintiff’s ability to rebut the grand jury indictment’s presumption of probable cause. The King court articulated a more flexible approach to the issue, ruling that “evidence of an officer’s actions prior to and independent of grand jury testimony,” such as “wrongly setting a prosecution in motion or falsifying or fabricating evidence,” may be sufficient to rebut the “presumption of probable cause created by an indictment even if a malicious prosecution plaintiff may not bring in evidence of the grand jury testimony itself to do so.” King, 852 F.3d at 590. More specifically, the court in King held that the grand jury’s presumption of probable cause may be rebutted when:

(1) a law enforcement officer, in the course of setting a prosecution in motion either knowingly or recklessly, makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand jury testimony or preparation for that testimony ….

Id. at 58.

The upshot of King v. Hardwood is that Rehberg‘s restriction on the use of grand jury testimony does not preclude all §1983 malicious prosecution claims. Rather, courts must make case-by-case evaluations of whether the §1983 plaintiff can satisfy the initiation and lack of probable cause elements without resorting to a law enforcement officer’s grand jury testimony.