Prosecutorial Immunity...Is it Always Absolute?

Imbler v. Pachtman established that prosecutors have absolute immunity. Kalina v. Fletcher bit into that claim, distinguishing between acts of advocacy, for which prosecutors are still immune, and administrative or investigative acts, for which there may be exposure.

Kalina, the prosecutor, had filed a sworn affidavit in support of an arrest warrant for Fletcher. Fletcher claimed that the sworn affidavit had false statements of fact in it, was defective, and therefore Kalina wasn't immune because she personally, not as an advocate, swore to untrue statements under penalty of perjury.

The Court held that Kalina was not immune because in swearing to the affidavit she acted as a complaining witness, not as a prosecutor.

Imbler v. Pachtman, 424 U. S. 409, 410, 430-431, and subsequent cases recognize that a criminal prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate, see, e.g., Buckley v. Fitzsimmons, 509 U. S. 259, 273, but is protected only by qualified immunity when he is not acting as an advocate, as where he functions as a complaining witness in presenting a judge with a complaint and supporting affidavit to establish probable cause for an arrest, see Malley v. Briggs, 475 U. S. 335, 340-341.

Kalina put herself outside the prosecutor's advocate function...

However, petitioner (Kalina) was acting as a complaining witness rather than a lawyer when she executed the certification "[u]nder penalty of perjury," and, insofar as she did so, §1983 may provide a remedy for respondent.

The Court recognized that had Kalina filed the complaint on the sworn affidavit of someone else she would have been functioning as an advocate, and thus would still have been absolutely immune.

Under these cases, petitioner's activities in connection with the preparation and filing of the information against respondent and the motion for an arrest warrant clearly are protected by absolute immunity as part of the advocate's function. Indeed, except for her act in personally attesting to the truth of the averments in the certification, the preparation and filing of that third document was protected as well. Pp. 4-10.

Kalina's fatal error was in personally attesting to the truthfulness of the statements in the affidavit, making herself the complaining witness rather than the prosecutor and advocate for the state.

Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs is that of a witness.

To sum it up:

Prosecutor acts as complaining witness rather than as advocate for state when swearing to facts in support of probable cause for issuance of arrest warrant and, therefore, is not absolutely immune from 42 USC 1983 suit alleging that prosecutor made false statements of fact in warrant affidavit. (Kalina v. Fletcher, US SupCt, No. 96-792, 12/10/97) Page 4031

The Beginning of the End

Given my early positive exposure to law enforcement as a kid, I was pretty much set on becoming a police officer. I watched all the police shows...Dragnet, Adam 12, etc. When I was a bit older I went on ride-alongs with officers. After I graduated from high school I decided to enlist in the Air Force, and of course I chose Law Enforcement as my military occupation. Unfortunately, I came up against an obstacle. I couldn't pass the color vision testing portion of the physical exam and so I couldn't become a military police officer! I ended up working as a medical specialist.

After I left the Air Force, I was still set on becoming a police officer. I worked as a security guard while taking college classes. I completed a reserve police officer academy and then applied to a local police department as a reserve officer. I was hired! For those of you who don't know what a reserve officer is, a reserve officer is an unpaid, uniformed officer, who has full peace officer status when on duty, but only has civilian powers of arrest when off duty ( surprise! we ordinary citizens have the authority to arrest!). There are reserve officers who have full peace officer powers 24 hours a day, but I wasn't one of those. I ended up resigning a few months later.

It wasn't some awakening to the evils of law enforcement that led me to resign. I actually loved being a police officer-at least most aspects of the job. I loved patrol! Even on nights when we ( reserve officers had to ride with a full-time officer) didn't get any calls, it was a good feeling to know that we were out there available to help if needed. And maybe, just by being present and visible out on the street, we prevented someone who otherwise would have committed a crime from doing so. On the busy nights, it was exciting and rewarding: arresting drunk drivers before they killed someone, or chasing down a burglar! Good stuff! There was also the distasteful stuff, like getting involved in family violence situations. I hated those!

So, what led to my resignation? An excuse I had was the time issue. I was working full-time and going to college part-time. On top of that, I had to attend reserve officer meetings and training events. There were a few conflicts in timing, such that I was unable to attend some mandatory officer training. This kept me from being able to go out on patrol for awhile. These were minor issues that I could overcome through make-up training. But, the main thing that led me to resign was my humanity.

One night, toward the end of the shift, we got a call of a man with a gun at an apartment complex. When we arrived, with several other officers, the man was nowhere to be found. We were told the man had gone back to his apartment. Several officers were to go up to the apartment and I remained in the lobby area with another officer. There was a door in the lobby which opened out to a rear parking lot. The rear window of the suspect's apartment was on the side of the building which faced the parking lot. The only problem we had was that we didn't know exactly which apartment belonged to the suspect, so we were forced to keep an eye on all the windows which faced the lot. My partner went out into the lot and knelt behind a car for cover. He covered the windows with a shotgun. I stood in the open doorway in the lobby and scanned each window for movement. There were three or four floors of windows, and I was scanning from one window to the next. After a few minutes the humanity moment hit me, and it shook me to the core!

As I looked from one window to the next, the thought came to me, "I don't know where this guy is-which window he is behind! If he looks out his window while I am looking at another window and he sees me he can get off a shot at me, and I'd never see it coming!" I realized just how vulnerable I was! I realized that I was mortal; that in an instant my life could be over, and I had no control over that! There would be no second chance! No ability to say, " Hey, no fair! You shot me when I wasn't looking! Let's do this over." I would just be dead, and that would be the end of it!

As it turned out, we weren't able to find the man. We left the building and my partner and I went off duty. I couldn't shake that feeling of fear, that sense of my own mortality, that I had standing in that doorway. It really wasn't a devastating, traumatic event, was it-the kind of scene so horrific or traumatic that it might lead a human being to not want to ever see, or be exposed to, man's inhumanity and brutality to his fellow man? I hadn't been injured or fired on! I hadn't seen another officer blown away! I hadn't seen a family slaughtered, or anything on a level of that kind of event. It was just a small thought, a realization that I was subject to death...that I wasn't always in control of my own fate. One moment beyond my control could result in the end my life!

I used the excuse of conflicts between my work schedule, school schedule, and reserve meetings and training as the excuse for my resignation. It was just too tough balancing them all. There wasn't time for me to do them all. Behind that excuse was the real reason-I was afraid of dying! I ended up going back into the medical field for work.


Later in my life, as I reflected on the reasons I wanted to be a police officer in the first place, I came to realize some things about myself and my subconscious motivations. To be sure, there were altruistic reasons for wanting to be a police officer and I enjoyed the feelings of excitement and the independence of the work; but, there were also reasons which were troubling to me-subconscious feelings influencing me. It is so ironic that the same feelings which led me to want to become a police officer were the same feelings, for different reasons, which led to the end of my career path as a police officer. For many years after I resigned, I was troubled by my decision. I still had an attraction for law enforcement and regretted my decision to resign. Now, I am glad that I resigned and I have no desire to be a police officer any more. I'll write about the reasons next time.

How It All Began

My interest in criminal justice began years ago, when I was a little kid. I was about 8 years old. My family and I were driving down the road in our old VW. The sun was shining and it was a beautiful Sunday as we were on our way to church. As we got closer to an intersection, I noticed a blur coming across the road from our right. My dad stepped on the brakes hard and I saw that the object was another car. We started to skid to a stop, but it was too late!

The impact, as we slammed into the side of the other car, sent me flying forward into the back of the driver seat. My mom's head went into the windshield, but she was alright, other than bleeding from a gash in her forehead. My sister, who was sitting beside me in the back seat, was also alright. My dad had hurt his knee. But, my baby sister, only a few months old, who was being held in Mom's lap, wasn't breathing! It was a miracle that she began breathing again a short time later.

An ambulance arrived at the scene, and along with some other people who had stopped to help and comfort us, a California Highway Patrol officer arrived. My mom and baby sister were taken away in the ambulance. A concerned bystander gave me and the other members of my family a ride to the hospital. It was there that my desire to become involved in law enforcement was born.

As I was waiting while my mom, baby sister, and dad were being treated, the patrolman sat with me and let me wear his hat. I don't remember much else, but I know at that time I felt safe and I admired this man in uniform. From that time on, I wanted to be like him. That is where it all began for me.

My journey in the realm of criminal justice has been a long and winding one, with many twists and turns. In the posts that follow, I will write about that journey and where it has led me.