Rehberg v. Paulk , 132 S. Ct. 1497 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REHBERG v. PAULK
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 10–788. Argued November 1, 2011—Decided April 2, 2012
Respondent, the chief investigator for a district attorney’s office, testi-
fied at grand jury proceedings that resulted in petitioner’s indict-
ment. After the indictments were dismissed, petitioner brought an
action under 42 U. S. C. §1983, alleging that respondent had con-
spired to present and did present false testimony to the grand jury.
The Federal District Court denied respondent’s motion to dismiss on
immunity grounds, but the Eleventh Circuit reversed, holding that
respondent had absolute immunity from a §1983 claim based on his
grand jury testimony.
Held: A witness in a grand jury proceeding is entitled to the same abso-
lute immunity from suit under §1983 as a witness who testifies at
trial. Pp. 3–18.
(a) Section 1983, which derives from §1 of the Civil Rights Act of
1871, was not meant to effect a radical departure from ordinary tort
law and the common-law immunities applicable in tort suits. See,
e.g., Burns v. Reed, 500 U. S. 478, 484. This interpretation of §1983
has been reaffirmed by the Court time and again. Thus, the Court
looks to the common law for guidance in determining the scope of the
immunities available in actions brought under §1983. See Kalina v.
Fletcher, 522 U. S. 118, 123. Taking a “functional approach,” see,
e.g., Forrester v. White, 484 U. S. 219, 224, the Court identifies those
governmental functions that were historically viewed as so important
and vulnerable to interference by means of litigation that some form
of absolute immunity from civil liability was needed to ensure that
they are “ ‘performed with independence and without fear of conse-
quences,’ ” Pierson v. Ray, 386 U. S. 547, 554.
The Court’s functional approach is tied to the common law’s identi-
fication of functions meriting the protection of absolute immunity,
2 REHBERG v. PAULK
Syllabus
but the Court’s precedents have not mechanically duplicated the pre-
cise scope of the absolute immunity the common law provided to pro-
tect those functions. For example, it was common in 1871 for cases to
be prosecuted by private parties, who did not enjoy absolute immuni-
ty from suit. But as the prosecutorial function was increasingly as-
sumed by public officials, common-law courts held that public prose-
cutors, unlike their private predecessors, were absolutely immune
from the types of tort claims that an aggrieved or vengeful criminal
defendant was most likely to assert. This adaptation of prosecutorial
immunity accommodated the special needs of public, as opposed to
private, prosecutors. Thus, when the issue of prosecutorial immunity
under §1983 reached this Court in Imbler v. Pachtman, 424 U. S.
409, the Court did not simply apply the scope of immunity recognized
by common-law courts as of 1871 but instead relied substantially on
post-1871 cases extending broad immunity to public prosecutors sued
for common-law torts. Neither has the Court suggested that §1983 is
simply a federalized amalgamation of pre-existing common-law
claims. The new federal claim created by §1983 differs in important
ways from pre-existing common-law torts. Accordingly, both the
scope of the new tort and the scope of the absolute immunity availa-
ble in §1983 actions differ in some respects from the common law.
Pp. 3―9.
(b) A trial witness sued under §1983 enjoys absolute immunity
from any claim based on his testimony. Briscoe v. LaHue, 460 U. S.
352. Without absolute immunity, the truth-seeking process would be
impaired as witnesses might be reluctant to testify, and even a wit-
ness who took the stand “might be inclined to shade his testimony in
favor of the potential plaintiff ” for “fear of subsequent liability.” Id.,
at 333. These factors apply with equal force to grand jury witnesses.
In both contexts, a witness’ fear of retaliatory litigation may deprive
the tribunal of critical evidence. And in neither context is the deter-
rent of potential civil liability needed to prevent false testimony be-
cause other sanctions, chiefly prosecution for perjury, provide a suffi-
cient deterrent.
For the reasons identified in Briscoe, supra, at 342–344, there is no
reason to distinguish law enforcement witnesses from lay witnesses
in §1983 actions. And the rule that a grand jury witness has absolute
immunity from any §1983 claim based on the witness’ testimony may
not be circumvented by claiming that a grand jury witness conspired
to present false testimony, or by using evidence of the witness’ testi-
mony to support any other §1983 claim concerning the initiation or
maintenance of a prosecution. Were it otherwise, a criminal defend-
ant turned civil plaintiff could reframe a claim to attack the prepara-
tory activity—such as a preliminary discussion in which the witness
Cite as: 566 U. S. ____ (2012) 3
Syllabus
relates the substance of his intended testimony—rather than the ab-
solutely immune actions themselves. Pp. 9−12.
(c) Petitioner’s main argument is that under Malley v. Briggs, 475
U. S. 335, 340−341, and Kalina v. Fletcher, 522 U. S. 118, 131, grand
jury witnesses who are “complaining witnesses” are not entitled to
absolute immunity. But at the time §1983’s predecessor was enacted,
a “complaining witness” was a party who procured an arrest and ini-
tiated a criminal prosecution. A “complaining witness” might testify,
either before a grand jury or at trial, but testifying was not a neces-
sary characteristic of a “complaining witness.” Thus, testifying,
whether before a grand jury or at trial, was not the distinctive func-
tion performed by a “complaining witness.” A “complaining witness”
cannot be held liable for perjurious trial testimony, see Briscoe, 460
U. S., at 326, and there is no more reason why a “complaining wit-
ness” should be subject to liability for testimony before a grand jury.
Once the distinctive function performed by a “complaining witness”
is understood, it is apparent that a law enforcement officer who testi-
fies before a grand jury is not comparable to a “complaining witness”
because it is not the officer who makes the critical decision to press
criminal charges, but the prosecutor. It would be anomalous to per-
mit a police officer testifying before a grand jury to be sued for mali-
ciously procuring an unjust prosecution when it is the prosecutor,
who is shielded by absolute immunity, who is actually responsible for
the decision to initiate a prosecution. Petitioner also contends that
the deterrent effect of civil liability is more needed in grand jury pro-
ceedings because trial witnesses face cross-examination. But the
force of that argument is more than offset by the problem that allow-
ing such civil actions would create—subversion of grand jury secrecy,
which is essential to the proper functioning of the grand jury system.
See United States v. Sells Engineering, Inc., 463 U. S. 418, 424. And
finally, contrary to petitioner’s suggestion, recognizing absolute im-
munity for grand jury witnesses does not create an insupportable dis-
tinction between States that use grand juries and States that permit
felony prosecutions to be brought by complaint or information. Most
States that do not require an indictment for felonies provide a prelim-
inary hearing at which witnesses testify, and the lower courts have
held that preliminary hearing witnesses are protected by the same
immunity accorded grand jury witnesses. Pp. 12−18.
611 F. 3d 828, affirmed.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–788
_________________
CHARLES A. REHBERG, PETITIONER v. JAMES
P. PAULK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 2, 2012]
JUSTICE ALITO delivered the opinion of the Court.
This case requires us to decide whether a “complaining
witness” in a grand jury proceeding is entitled to the
same immunity in an action under 42 U. S. C. §1983 as a
witness who testifies at trial. We see no sound reason
to draw a distinction for this purpose between grand jury
and trial witnesses.
I
Petitioner Charles Rehberg, a certified public account-
ant, sent anonymous faxes to several recipients, including
the management of a hospital in Albany, Georgia, criticiz-
ing the hospital’s management and activities. In response,
the local district attorney’s office, with the assistance of
its chief investigator, respondent James Paulk, launched a
criminal investigation of petitioner, allegedly as a favor to
the hospital’s leadership.
Respondent testified before a grand jury, and petitioner
was then indicted for aggravated assault, burglary, and
six counts of making harassing telephone calls. The in-
dictment charged that petitioner had assaulted a hospital
physician, Dr. James Hotz, after unlawfully entering the
2 REHBERG v. PAULK
Opinion of the Court
doctor’s home. Petitioner challenged the sufficiency of the
indictment, and it was dismissed.
A few months later, respondent returned to the grand
jury, and petitioner was indicted again, this time for as-
saulting Dr. Hotz on August 22, 2004, and for making
harassing phone calls. On this occasion, both the doctor
and respondent testified. Petitioner challenged the suf-
ficiency of this second indictment, claiming that he was
“nowhere near Dr. Hotz” on the date in question and that
“[t]here was no evidence whatsoever that [he] committed
an assault on anybody.” 611 F. 3d 828, 836 (CA11 2010).
Again, the indictment was dismissed.
While the second indictment was still pending, respond-
ent appeared before a grand jury for a third time, and yet
another indictment was returned. Petitioner was charged
with assault and making harassing phone calls. This final
indictment was ultimately dismissed as well.
Petitioner then brought this action against respondent
under Rev. Stat. §1979, 42 U. S. C. §1983. Petitioner
alleged that respondent conspired to present and did
present false testimony to the grand jury. Respondent
moved to dismiss, arguing, among other things, that he
was entitled to absolute immunity for his grand jury
testimony. The United States District Court for the Mid-
dle District of Georgia denied respondent’s motion to
dismiss, but the Court of Appeals reversed, holding, in
accordance with Circuit precedent, that respondent was
absolutely immune from a §1983 claim based on his grand
jury testimony.
The Court of Appeals noted petitioner’s allegation that
respondent was the sole “complaining witness” before the
grand jury, but the Court of Appeals declined to recognize
a “complaining witness” exception to its precedent on
grand jury witness immunity. See 611 F. 3d, at 839–840.
“[A]llowing civil suits for false grand jury testimony,” the
court reasoned, “would . . . emasculate the confidential
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Opinion of the Court
nature of grand jury testimony, and eviscerate the tradi-
tional absolute immunity for witness testimony in judi-
cial proceedings.” Id., at 840. The court went on to hold
that respondent was entitled to absolute immunity, not only
with respect to claims based directly on his grand jury
testimony, but also with respect to the claim that he con-
spired to present such testimony. Id., at 841. To allow
liability to be predicated on the alleged conspiracy, the
court concluded, “ ‘would be to permit through the back
door what is prohibited through the front.’ ” Ibid. (quoting
Jones v. Cannon, 174 F. 3d 1271, 1289 (CA11 1999)).
We granted certiorari to resolve a Circuit conflict re-
garding the immunity of a “complaining witness” in a
grand jury proceeding, 562 U. S. ___ (2011), and we now
affirm.
II
Section 1983, which derives from §1 of the Civil Rights
Act of 1871, 17 Stat. 13, creates a private right of action
to vindicate violations of “rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Under the terms of the statute, “ ‘[e]very person’
who acts under color of state law to deprive another of a
constitutional right [is] answerable to that person in a suit
for damages.” Imbler v. Pachtman, 424 U. S. 409, 417
(1976) (citing 42 U. S. C. §1983).
A
Despite the broad terms of §1983, this Court has long
recognized that the statute was not meant to effect a
radical departure from ordinary tort law and the common-
law immunities applicable in tort suits. See, e.g., Burns v.
Reed, 500 U. S. 478, 484 (1991). More than 60 years ago,
in Tenney v. Brandhove, 341 U. S. 367 (1951), the Court
held that §1983 did not abrogate the long-established
absolute immunity enjoyed by legislators for actions taken
4 REHBERG v. PAULK
Opinion of the Court
within the legitimate sphere of legislative authority.
Immunities “well grounded in history and reason,” the
Court wrote, were not somehow eliminated “by covert
inclusion in the general language” of §1983. Id., at 376.
This interpretation has been reaffirmed by the Court
time and again and is now an entrenched feature of our
§1983 jurisprudence. See, e.g., Pierson v. Ray, 386 U. S.
547, 554–555 (1967) (“The legislative record gives no clear
indication that Congress meant to abolish wholesale all
common-law immunities. Accordingly, this Court held . . .
that the immunity of legislators for acts within the legisla-
tive role was not abolished. The immunity of judges for
acts within the judicial role is equally well established,
and we presume that Congress would have specifically so
provided had it wished to abolish the doctrine”); Imbler,
supra, at 418 (statute must “be read in harmony with
general principles of tort immunities and defenses rather
than in derogation of them”); Procunier v. Navarette, 434
U. S. 555, 561 (1978) (“Although the Court has recognized
that in enacting §1983 Congress must have intended to
expose state officials to damages liability in some circum-
stances, the section has been consistently construed as not
intending wholesale revocation of the common-law im-
munity afforded government officials”); Briscoe v. LaHue,
460 U. S. 325, 330 (1983) (“ ‘It is by now well settled that
the tort liability created by §1983 cannot be understood in
a historical vacuum. . . . One important assumption under-
lying the Court’s decisions in this area is that members of
the 42d Congress were familiar with common-law princi-
ples, including defenses previously recognized in ordinary
tort litigation, and that they likely intended these com-
mon-law principles to obtain, absent specific provisions to
the contrary’ ” (quoting Newport v. Fact Concerts, Inc., 453
U. S. 247, 258 (1981)); Pulliam v. Allen, 466 U. S. 522, 529
(1984) (“The starting point in our own analysis is the
common law. Our cases have proceeded on the assump-
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
tion that common-law principles of . . . immunity were
incorporated into our judicial system and that they should
not be abrogated absent clear legislative intent to do so”).
B
Recognizing that “Congress intended [§1983] to be
construed in the light of common-law principles,” the
Court has looked to the common law for guidance in de-
termining the scope of the immunities available in a §1983
action. Kalina v. Fletcher, 522 U. S. 118, 123 (1997). We
do not simply make our own judgment about the need for
immunity. We have made it clear that it is not our role “to
make a freewheeling policy choice,” Malley v. Briggs, 475
U. S. 335, 342 (1986), and that we do not have a license to
create immunities based solely on our view of sound pol-
icy, see Tower v. Glover, 467 U. S. 914, 922–923 (1984).
Instead, we conduct “a considered inquiry into the immun-
ity historically accorded the relevant official at common
law and the interests behind it.” Imbler, supra, at 421.
We take what has been termed a “functional approach.”
See Forrester v. White, 484 U. S. 219, 224 (1988); Burns,
supra, at 486. We consult the common law to identify
those governmental functions that were historically
viewed as so important and vulnerable to interference by
means of litigation that some form of absolute immunity
from civil liability was needed to ensure that they are
performed “ ‘with independence and without fear of conse-
quences.’ ” Pierson, supra, at 554 (quoting Bradley v.
Fisher, 13 Wall. 335, 350, n. ‡ (1872)). Taking this ap-
proach, we have identified the following functions that are
absolutely immune from liability for damages under
§1983: actions taken by legislators within the legitimate
scope of legislative authority, see Tenney, supra; actions
taken by judges within the legitimate scope of judicial
authority, see Pierson, supra; actions taken by prosecutors
in their role as advocates, see Imbler, 424 U. S., at 430–
6 REHBERG v. PAULK
Opinion of the Court
431; and the giving of testimony by witnesses at trial, see
Briscoe, supra. By contrast, the Court has found no abso-
lute immunity for the acts of the chief executive officer of
a State, the senior and subordinate officers of a State’s
National Guard, the president of a state university, see
Scheuer v. Rhodes, 416 U. S. 232, 247–248 (1974); school
board members, see Wood v. Strickland, 420 U. S. 308,
318 (1975); the superintendent of a state hospital, see
O’Connor v. Donaldson, 422 U. S. 563, 577 (1975); police
officers, see Pierson, supra, at 555; prison officials and
officers, Procunier, supra, at 561; and private co-
conspirators of a judge, see Dennis v. Sparks, 449 U. S. 24,
27 (1980).
C
While the Court’s functional approach is tied to the
common law’s identification of the functions that merit the
protection of absolute immunity, the Court’s precedents
have not mechanically duplicated the precise scope of the
absolute immunity that the common law provided to pro-
tect those functions. See, e.g., Burns, 500 U. S., at 493(“ ‘[T]he precise contours of official immunity’ need not
mirror the immunity at common law” (quoting Anderson v.
Creighton, 483 U. S. 635, 645 (1987))).
This approach is illustrated by the Court’s analysis of
the absolute immunity enjoyed today by public prosecu-
tors. When §1983’s predecessor was enacted in 1871, it
was common for criminal cases to be prosecuted by private
parties. See, e.g., Stewart v. Sonneborn, 98 U. S. 187, 198
(1879) (Bradley, J., dissenting) (“[E]very man in the com-
munity, if he has probable cause for prosecuting another,
has a perfect right, by law, to institute such prosecution,
subject only, in the case of private prosecutions, to the
penalty of paying the costs if he fails in his suit”). And
private prosecutors, like private plaintiffs in civil suits, did
not enjoy absolute immunity from suit. See Malley, 475
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Opinion of the Court
U. S., at 340–341, and n. 3 (citing cases). Instead, “the
generally accepted rule” was that a private complainant
who procured an arrest or prosecution could be held liable
in an action for malicious prosecution if the complainant
acted with malice and without probable cause. See id., at
340–341; see also Briscoe, 460 U. S., at 351 (Marshall, J.,
dissenting) (“Both English and American courts routinely
permitted plaintiffs to bring actions alleging that the de-
fendant had made a false and malicious accusation of a
felony to a magistrate or other judicial officer”); Wheeler v.
Nesbitt, 24 How. 544, 550 (1861) (“Undoubtedly, every
person who puts the criminal law in force maliciously,
and without any reasonable or probable cause, commits a
wrongful act; and if the accused is thereby prejudiced,
either in his person or property, the injury and loss so
sustained constitute the proper foundation of an action to
recover compensation”); Dinsman v. Wilkes, 12 How. 390,
402 (1852) (no immunity “where a party had maliciously,
and without probable cause, procured the plaintiff to be
indicted or arrested for an offence of which he was not
guilty”).
In the decades after the adoption of the 1871 Civil
Rights Act, however, the prosecutorial function was in-
creasingly assumed by public officials, and common-law
courts held that public prosecutors, unlike their private
predecessors, were absolutely immune from the types of
tort claims that an aggrieved or vengeful criminal defend-
ant was most likely to assert, namely, claims for malicious
prosecution or defamation. See Imbler, supra, at 441–442
(White, J., concurring in judgment); Kalina, supra, at 124,
n. 11 (noting that cases “decided after 1871 . . . granted a
broader immunity to public prosecutors than had been
available in malicious prosecution actions against private
persons who brought prosecutions at early common law”);
see also Burns, supra, at 505 (SCALIA, J., concurring in
judgment in part and dissenting in part) (noting that the
8 REHBERG v. PAULK
Opinion of the Court
“common-law tradition of prosecutorial immunity . . .
developed much later than 1871”).
This adaptation of prosecutorial immunity accommo-
dated the special needs of public, as opposed to private,
prosecutors. Because the daily function of a public prosecu-
tor is to bring criminal charges, tort claims against public
prosecutors “could be expected with some frequency, for a
defendant often will transform his resentment at being
prosecuted into the ascription of improper and malicious
actions to the State’s advocate.” Imbler, 424 U. S., at 425.
Such “harassment by unfounded litigation would cause a
deflection of the prosecutor’s energies from his public
duties,” and would result in a severe interference with the
administration of an important public office. Id., at 423.
Constant vulnerability to vexatious litigation would give
rise to the “possibility that [the prosecutor] would shade
his decisions instead of exercising the independence of
judgment required by his public trust.” Ibid.Thus, when the issue of prosecutorial immunity un-
der §1983 reached this Court in Imbler, the Court did
not simply apply the scope of immunity recognized by
common-law courts as of 1871 but instead placed substan-
tial reliance on post-1871 cases extending broad immunity
to public prosecutors sued for common-law torts.
While the Court has looked to the common law in de-
termining the scope of the absolute immunity available
under §1983, the Court has not suggested that §1983
is simply a federalized amalgamation of pre-existing
common-law claims, an all-in-one federal claim encompass-
ing the torts of assault, trespass, false arrest, defamation,
malicious prosecution, and more. The new federal claim
created by §1983 differs in important ways from those pre-
existing torts. It is broader in that it reaches constitu-
tional and statutory violations that do not correspond to
any previously known tort. See Kalina, 522 U. S., at 123.
But it is narrower in that it applies only to tortfeasors who
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Opinion of the Court
act under color of state law. See Briscoe, supra, at 329.
Section 1983 “ha[s] no precise counterpart in state law. . . .
[I]t is the purest coincidence when state statutes or the
common law provide for equivalent remedies; any analo-
gies to those causes of action are bound to be imperfect.”
Wilson v. Garcia, 471 U. S. 261, 272 (1985) (internal quo-
tation marks and citation omitted). Thus, both the scope
of the new tort and the scope of the absolute immunity
available in §1983 actions differ in some respects from the
common law.
III
A
At common law, trial witnesses enjoyed a limited form
of absolute immunity for statements made in the course
of a judicial proceeding: They had complete immunity
against slander and libel claims, even if it was alleged that
the statements in question were maliciously false. Kalina,
supra, at 133 (SCALIA, J., concurring) (citing F. Hilliard,
Law of Torts 319 (1866)); see Briscoe, supra, at 351 (Mar-
shall, J., dissenting); Burns, 500 U. S., at 501 (opinion of
SCALIA, J.).
In Briscoe, however, this Court held that the immunity
of a trial witness sued under §1983 is broader: In such a
case, a trial witness has absolute immunity with respect to
any claim based on the witness’ testimony. When a wit-
ness is sued because of his testimony, the Court wrote,
“ ‘the claims of the individual must yield to the dictates of
public policy.’ ” 460 U. S., at 332–333 (quoting Calkins v.
Sumner, 13 Wis. 193, 197 (1860)). Without absolute im-
munity for witnesses, the Court concluded, the truth-
seeking process at trial would be impaired. Witnesses
“might be reluctant to come forward to testify,” and even if
a witness took the stand, the witness “might be inclined to
shade his testimony in favor of the potential plaintiff ” for
“fear of subsequent liability.” 460 U. S., at 333.
10 REHBERG v. PAULK
Opinion of the Court
The factors that justify absolute immunity for trial
witnesses apply with equal force to grand jury witnesses.
In both contexts, a witness’ fear of retaliatory litigation
may deprive the tribunal of critical evidence. And in
neither context is the deterrent of potential civil liability
needed to prevent perjurious testimony. In Briscoe, the
Court concluded that the possibility of civil liability was
not needed to deter false testimony at trial because other
sanctions—chiefly prosecution for perjury—provided a
sufficient deterrent. Id., at 342. Since perjury before a
grand jury, like perjury at trial, is a serious criminal
offense, see, e.g., 18 U. S. C. §1623(a), there is no reason to
think that this deterrent is any less effective in preventing
false grand jury testimony.
B
Neither is there any reason to distinguish law enforce-
ment witnesses from lay witnesses. In Briscoe, it was
argued that absolute immunity was not needed for police-
officer witnesses, but the Court refused to draw that dis-
tinction. The Court wrote:
“When a police officer appears as a witness, he may
reasonably be viewed as acting like any other witness
sworn to tell the truth—in which event he can make a
strong claim to witness immunity; alternatively, he
may be regarded as an official performing a critical
role in the judicial process, in which event he may
seek the benefit afforded to other governmental par-
ticipants in the same proceeding. Nothing in the lan-
guage of the statute suggests that such a witness be-
longs in a narrow, special category lacking protection
against damages suits.” 460 U. S., at 335–336 (foot-
note omitted).
See also id., at 342 (“A police officer on the witness stand
performs the same functions as any other witness”).
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Opinion of the Court
The Briscoe Court rebuffed two arguments for distin-
guishing between law enforcement witnesses and lay
witnesses for immunity purposes: first, that absolute im-
munity is not needed for law enforcement witnesses be-
cause they are less likely to be intimidated by the threat
of suit and, second, that such witnesses should not be
shielded by absolute immunity because false testimony by
a police officer is likely to be more damaging than false
testimony by a lay witness. See ibid. The Court observed
that there are other factors not applicable to lay witnesses
that weigh in favor of extending absolute immunity to
police officer witnesses.
First, police officers testify with some frequency. Id., at
343. “Police officers testify in scores of cases every year,”
the Court noted, “and defendants often will transform
resentment at being convicted into allegations of perjury
by the State’s official witnesses.” Ibid. If police officer
witnesses were routinely forced to defend against claims
based on their testimony, their “ ‘energy and attention
would be diverted from the pressing duty of enforcing the
criminal law.’ ” Id., at 343–344 (quoting Imbler, 424 U. S.,
at 425).
Second, a police officer witness’ potential liability, if
conditioned on the exoneration of the accused, could influ-
ence decisions on appeal and collateral relief. 460 U. S., at
344. Needless to say, such decisions should not be influ-
enced by the likelihood of a subsequent civil rights action.
But the possibility that a decision favorable to the accused
might subject a police officer witness to liability would
create the “ ‘risk of injecting extraneous concerns’ ” into
appellate review and postconviction proceedings. Ibid.(quoting Imbler, supra, at 428, n. 27). In addition, law
enforcement witnesses face the possibility of sanctions not
applicable to lay witnesses, namely, loss of their jobs and
other employment-related sanctions.
For these reasons, we conclude that grand jury wit-
12 REHBERG v. PAULK
Opinion of the Court
nesses should enjoy the same immunity as witnesses at
trial. This means that a grand jury witness has absolute
immunity from any §1983 claim based on the witness’
testimony. In addition, as the Court of Appeals held, this
rule may not be circumvented by claiming that a grand jury
witness conspired to present false testimony or by using
evidence of the witness’ testimony to support any other
§1983 claim concerning the initiation or maintenance of
a prosecution. Were it otherwise, “a criminal defendant
turned civil plaintiff could simply reframe a claim to at-
tack the preparation instead of the absolutely immune
actions themselves.” Buckley v. Fitzsimmons, 509 U. S.
259, 283 (1993) (KENNEDY, J., concurring in part and
dissenting in part); see also Dykes v. Hosemann, 776 F. 2d
942, 946 (CA11 1985) (per curiam) (“[J]udges, on mere
allegations of conspiracy or prior agreement, could be
hauled into court and made to defend their judicial acts,
the precise result judicial immunity was designed to
avoid”). In the vast majority of cases involving a claim
against a grand jury witness, the witness and the prose-
cutor conducting the investigation engage in preparatory
activity, such as a preliminary discussion in which the
witness relates the substance of his intended testimony.
We decline to endorse a rule of absolute immunity that is
so easily frustrated.1
IV
A
Petitioner’s main argument is that our cases, chiefly
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1 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
officials who falsify affidavits, see Kalina v. Fletcher, 522 U. S. 118,
129–131 (1997); Malley v. Briggs, 475 U. S. 335, 340–345 (1986), and
fabricate evidence concerning an unsolved crime, see Buckley, 509
U. S., at 272–276.
Cite as: 566 U. S. ____ (2012) 13
Opinion of the Court
Malley and Kalina, already establish that a “complaining
witness” is not shielded by absolute immunity. See Brief
for Petitioner 17–22. In those cases, law enforcement
officials who submitted affidavits in support of applica-
tions for arrest warrants were denied absolute immunity
because they “performed the function of a complaining
witness.” Kalina, 522 U. S., at 131; see Malley, 475 U. S.,
at 340–341. Relying on these cases, petitioner contends
that certain grand jury witnesses—namely, those who
qualify as “complaining witnesses”—are not entitled to
absolute immunity. Petitioner’s argument is based on a
fundamental misunderstanding of the distinctive function
played by a “complaining witness” during the period when
§1983’s predecessor was enacted.
At that time, the term “complaining witness” was used
to refer to a party who procured an arrest and initiated a
criminal prosecution, see Kalina, 522 U. S., at 135(SCALIA, J., concurring). A “complaining witness” might
not actually ever testify, and thus the term “ ‘witness’ in
‘complaining witness’ is misleading.” Ibid. See also Mal-
ley, supra, at 340 (complaining witness “procure[s] the
issuance of an arrest warrant by submitting a complaint”);
Wyatt v. Cole, 504 U. S. 158, 164–165 (1992) (complaining
witness “set[s] the wheels of government in motion by
instigating a legal action”).
It is true that a mid-19th century complaining witness
might testify, either before a grand jury or at trial. But
testifying was not a necessary characteristic of a “com-
plaining witness.” See M. Newell, Malicious Prosecution
368 (1892). Nor have we been presented with evidence
that witnesses who did no more than testify before a grand
jury were regarded as complaining witnesses and were
successfully sued for malicious prosecution. See Tr. of
Oral Arg. 14–15, 24–25.
In sum, testifying, whether before a grand jury or at
trial, was not the distinctive function performed by a
14 REHBERG v. PAULK
Opinion of the Court
complaining witness. It is clear—and petitioner does not
contend otherwise—that a complaining witness cannot
be held liable for perjurious trial testimony. Briscoe, 460
U. S., at 326. And there is no more reason why a com-
plaining witness should be subject to liability for testi-
mony before a grand jury.
Once the distinctive function performed by a “complain-
ing witness” is understood, it is apparent that a law en-
forcement officer who testifies before a grand jury is not at
all comparable to a “complaining witness.” By testifying
before a grand jury, a law enforcement officer does not
perform the function of applying for an arrest warrant; nor
does such an officer make the critical decision to initiate a
prosecution. It is of course true that a detective or case
agent who has performed or supervised most of the inves-
tigative work in a case may serve as an important witness
in the grand jury proceeding and may very much want the
grand jury to return an indictment. But such a witness,
unlike a complaining witness at common law, does not
make the decision to press criminal charges.
Instead, it is almost always a prosecutor who is respon-
sible for the decision to present a case to a grand jury, and
in many jurisdictions, even if an indictment is handed up,
a prosecution cannot proceed unless the prosecutor signs
the indictment.2 It would thus be anomalous to permit a
police officer who testifies before a grand jury to be sued
——————
2 The federal courts have concluded uniformly that Rule 7(c) of the
Federal Rules of Criminal Procedure, providing that an indictment
“must be signed by an attorney for the government,” precludes federal
grand juries from issuing an indictment without the prosecutor’s
signature, signifying his or her approval. See 4 W. LaFave, J. Israel,
N. King, & O. Kerr, Criminal Procedure §15.1(d) (3d ed. 2007) (herein-
after LaFave). However, in some jurisdictions, the grand jury may
return an indictment and initiate a prosecution without the prosecu-
tor’s signature, but such cases are rare. See 1 S. Beale, W. Bryson, J.
Felman, & M. Elston, Grand Jury Law and Practice, p. 4–76, and n. 2
(2d ed. 2001).
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Opinion of the Court
for maliciously procuring an unjust prosecution when it is
the prosecutor, who is shielded by absolute immunity, who
is actually responsible for the decision to prosecute. See
Albright v. Oliver, 510 U. S. 266, 279, n. 5 (1994)
(GINSBURG, J., concurring) (the prosecutor is the “principal
player in carrying out a prosecution”); see ibid. (“[T]he
star player is exonerated, but the supporting actor is
not”).3
Precisely because no grand jury witness has the power
to initiate a prosecution, petitioner is unable to provide a
workable standard for determining whether a particular
grand jury witness is a “complaining witness.” Here,
respondent was the only witness to testify in two of the
three grand jury sessions that resulted in indictments.
But where multiple witnesses testify before a grand jury,
identifying the “complaining witness” would often be
difficult. Petitioner suggests that a “complaining witness”
——————
3 Petitioner says there is no reason to distinguish between a person
who goes to the police to swear out a criminal complaint and a person
who testifies to facts before a grand jury for the same purpose and with
the same effect. Brief for Petitioner 2, 23. But this is like saying that
a bicycle and an F-16 are the same thing. Even if the functions are
similar as a general matter, the entities are quite different. Grand
juries, by tradition, statute, and sometimes constitutional mandate,
have a status and entitlement to information that absolute immunity
furthers. See, e.g., Imbler v. Pachtman, 424 U. S. 409, 423, n. 20 (1976)
(“It is the functional comparability of their judgments to those of
the judge that has resulted in both grand jurors and prosecutors be-
ing referred to as ‘quasi-judicial’ officers, and their immunities being
termed ‘quasi-judicial’ as well”); see also United States v. Sells Engi-
neering, Inc., 463 U. S. 418, 423 (1983) (“The grand jury has always
occupied a high place as an instrument of justice in our system of
criminal law—so much so that it is enshrined in the Constitution”).
Our holding today supports the functioning of the grand jury system.
The importance of the grand jury cannot be underestimated: In the
federal system and many States, see LaFave §15.1(d), a felony cannot
be charged without the consent of community representatives, a vital
protection from unwarranted prosecutions.
16 REHBERG v. PAULK
Opinion of the Court
is “someone who sets the prosecution in motion.” Tr. of
Oral Arg. 8; see Reply Brief for Petitioner 15. And peti-
tioner maintains that the same distinction made at com-
mon law between complaining witnesses and other wit-
nesses applies in §1983 actions. See id., at 14–16. But,
as we have explained, a complaining witness played a dis-
tinctive role, and therefore even when a “complaining
witness” testified, there was a clear basis for distinguish-
ing between the “complaining witness” and other wit-
nesses. Because no modern grand jury witness plays a
comparable role, petitioner’s proposed test would be of
little use. Consider a case in which the case agent or lead
detective testifies before the grand jury and provides a
wealth of background information and then a cooperating
witness appears and furnishes critical incriminating
testimony. Or suppose that two witnesses each provide
essential testimony regarding different counts of an in-
dictment or different elements of an offense. In these
cases, which witnesses would be “complaining witnesses”
and thus vulnerable to suit based on their testimony?
B
Petitioner contends that the deterrent effect of civil
liability is more needed in the grand jury context because
trial witnesses are exposed to cross-examination, which is
designed to expose perjury. See Brief for Petitioner 21,
25–26. This argument overlooks the fact that a critical
grand jury witness is likely to testify again at trial and
may be cross-examined at that time. But in any event, the
force of petitioner’s argument is more than offset by a
special problem that would be created by allowing civil
actions against grand jury witnesses—subversion of grand
jury secrecy.
“ ‘We consistently have recognized that the proper func-
tioning of our grand jury system depends upon the secrecy
of grand jury proceedings.’ ” United States v. Sells Engi-
Cite as: 566 U. S. ____ (2012) 17
Opinion of the Court
neering, Inc., 463 U. S. 418, 424 (1983) (quoting Douglas
Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 218–219
(1979)). “ ‘[I]f preindictment proceedings were made public,
many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony. Moreover,
witnesses who appeared before the grand jury would be
less likely to testify fully and frankly, as they would be
open to retribution.’ ” 463 U. S., at 424.
Allowing §1983 actions against grand jury witnesses
would compromise this vital secrecy. If the testimony of
witnesses before a grand jury could provide the basis for,
or could be used as evidence supporting, a §1983 claim,
the identities of grand jury witnesses could be discovered
by filing a §1983 action and moving for the disclosure of
the transcript of grand jury proceedings. Especially in
cases involving violent criminal organizations or other
subjects who might retaliate against adverse grand jury
witnesses, the threat of such disclosure might seriously
undermine the grand jury process.
C
Finally, contrary to petitioner’s suggestion, recognizing
absolute immunity for grand jury witnesses does not
create an insupportable distinction between States that
use grand juries and those that do not. Petitioner argues
that it would make no sense to distinguish for purposes
of §1983 immunity between prosecutions initiated by the
return of a grand jury indictment and those initiated by
the filing of a complaint or information, and he notes that
26 States permit felony prosecutions to be brought by
information. Brief for Petitioner 23–24. But petitioner
draws the wrong analogy. In States that permit felony
prosecutions to be initiated by information, the closest
analog to a grand jury witness is a witness at a prelimi-
nary hearing. Most of the States that do not require an
18 REHBERG v. PAULK
Opinion of the Court
indictment for felonies provide a preliminary hearing at
which witnesses testify. See LaFave §14.2(d), at 304, and
n. 47, 307, and n. 60. The lower courts have held that
witnesses at a preliminary hearing are protected by the
same immunity accorded grand jury witnesses, see, e.g.,
Brice v. Nkaru, 220 F. 3d 233, 239, n. 6 (CA4 2000); Curtis
v. Bembenek, 48 F. 3d 281, 284–285 (CA7 1995) (citing
cases), and petitioner does not argue otherwise, see Tr. of
Oral Arg. 51.
* * *
For these reasons, we hold that a grand jury witness is
entitled to the same immunity as a trial witness. Accord-
ingly, the judgment of the Court of Appeals for the Elev-
enth Circuit is
Affirmed.