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!
