Opinion analysis: Absolute immunity for grand jury witnesses

With all of the hullabaloo surrounding the health care cases, it is easy to forget that the bulk of the Court’s work is the relatively mundane but absolutely vital task of clarifying the law in areas that fill the docket of the lower federal courts on a daily basis.  The Court’s opinion in Rehberg v. Paulk, released on April 2, is just such a case, with the Court resolving a long standing circuit conflict on the question whether witnesses who testify before a grand jury are entitled to absolute immunity from suit under 42 U.S.C. § 1983, or are instead entitled only to the lesser protections of qualified immunity.

Charles Rehberg sued James Paulk under Section1983, alleging that Paulk, a law enforcement officer, had committed perjury at various grand jury proceedings which had led to Rehberg being indicted several times, only to have the criminal prosecutions subsequently dismissed.  Paulk asserted that just as a witness at trial is entitled to absolute immunity under Briscoe v. LaHue, so too would he as a grand jury witness be shielded by absolute immunity.  The district court rejected the contention, agreeing with Rehberg that a grand jury witness was more akin to an affiant testifying in support of a search warrant or criminal complaint, and hence entitled to only qualified immunity under the Court’s decisions in Malley v. Briggs and Kalina v. Fletcher.  The Eleventh Circuit, however, agreed with Paulk, holding that grand jury witnesses are entitled to absolute immunity.

A unanimous Court, in an opinion authored by Justice Alito, affirmed the Eleventh Circuit, holding that grand jury witnesses, like trial witnesses, are entitled to absolute immunity from any liability under Section 1983 arising from their testimony.  Like all of the Court’s opinions on absolute immunity, Justice Alito’s opinion recites the incantation that Section 1983 admits of no immunities on its face, and that the Court is not free to simply create an immunity for policy reasons; rather, it may only recognize immunities that existed at common law when Section 1983 was enacted in 1871.  However, in a nice bit of understatement, Justice Alito notes that “the Court’s precedents have not mechanically duplicated the precise scope of the absolute immunity that the common law provided to protect” various governmental functions.  This is a diplomatic way of saying that the Court has occasionally recognized absolute immunity under circumstances where, strictly speaking, there might not have been immunity at common law.

In a passage that is concise and candid about the Court’s sometimes seemingly inconsistent approach to absolute immunity, Justice Alito provides both an explanation for the Court’s prior decisions as well as a template for analyzing absolute immunity questions in the future.  While the Court is not free to create immunities that did not exist at common law, nonetheless the reality is that modern criminal prosecutions are very different than their common law counterparts.  Thus, the Court looks to the nature of the function that was protected at common law, rather than at the identity of the particular person who may have performed the function.

Applying that approach in this case, Justice Alito notes that while it is true that at common law a complaining witness was not immune from civil liability, such witnesses were typically private parties responsible for initiating the prosecution and would not necessarily testify at a subsequent trial.  In contrast, modern cases are brought by a public prosecutor, and hence witnesses like Paulk who testify in grand jury proceedings are not truly “complaining” witnesses in the sense the term was used at common law.

Justice Alito concludes that absolute immunity for grand jury testimony is necessary in order to safeguard the vital function that grand juries play in modern criminal procedure, by assuring that witnesses may provide candid testimony without fear of a retaliatory suit, and guarding the sacrosanct secrecy of grand jury proceedings.  Moreover, the absolute immunity cannot be circumvented by simply claiming that a grand jury witness conspired to present false testimony or by using  the testimony to support any other claim—any claim arising from testimony before a grand jury is shielded by absolute immunity.  The fact that grand jury witnesses, like trial witnesses, may be subject to prosecution for perjury is a sufficient deterrent to knowingly providing false testimony.

At oral argument, this appeared to be a very close case, with Rehberg’s counsel ably pointing out that the common law was all on his side, and Paulk’s counsel emphasizing the importance of grand jury proceedings and the need to shield witnesses from retaliatory claims, and with the Court vigorously questioning both sides.  But this is a good example of a case where the issue may have been close, but the result in the final analysis was clear—strong protection for witnesses providing live testimony in judicial proceedings.