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