USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-2281
HECTOR GUZMAN-RIVERA, ET AL.,
Plaintiffs, Appellees,
v.
HECTOR RIVERA-CRUZ, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Jose R. Gaztambide, with whom Luis A. Plaza and Elisa Bobonis
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Lang were on brief for appellants.
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Victoria A. Ferrer, with whom Alvaro R. Calderon, Jr. and Alvaro
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R. Calderon, Jr. Law Offices were on brief for appellees.
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May 31, 1995
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BOWNES, Senior Circuit Judge. This is the second
BOWNES, Senior Circuit Judge.
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time that this civil rights action has been before us. After
being arrested, convicted, and imprisoned for a murder that
he did not commit, plaintiff-appellee Hector Guzman Rivera
(joined by several family members) sued the Secretary of
Justice of Puerto Rico and two other Justice Department
officials under 42 U.S.C. 1983, alleging that the
defendants failed to timely reinvestigate the facts of the
murder after his conviction, and that they failed to move for
his release even after their investigation had established
his innocence.
In Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3 (1st
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Cir. 1994) (Guzman I), we reversed the district court's
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dismissal of Guzman's suit on statute of limitations grounds.
The defendants did not assert absolute immunity as an
alternative ground for affirmance, although that defense had
been raised below. On remand, just six days before trial was
scheduled to begin, the defendants filed an "Urgent Motion
for Relief" seeking summary judgment on absolute immunity
grounds. We are left to wonder why absolute immunity was
originally pled as a defense, abandoned in the initial
appeal, and then resurrected as an emergency on remand.
The district court nevertheless denied the motion
on the merits, finding genuine issues of material fact as to
the nature of the defendants' post-conviction activities. We
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therefore do not consider the absolute immunity defense
waived; it is the sole issue on appeal. From the facts
presented in this appeal, we find that the defendants are not
entitled to absolute immunity for any delays or inadequacies
in their conduct of the investigation. We also find,
however, that they are absolutely immune for their post-
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investigation failure to go into court to seek Guzman's
release.
I.
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We shall assume, as we did in Guzman I, 29 F.3d at
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5, that the plaintiffs' allegations regarding the defendants'
authority, duties, acts and omissions are true, and that they
are sufficient to allege a violation of federal rights. See
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Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2609 (1993).
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Guzman was convicted of a 1987 murder in Carolina,
Puerto Rico, and sentenced to 119 years' imprisonment on June
27, 1989. Beginning on August 21, 1989, his father, Guzman
Fernandez, repeatedly corresponded with or met with the
defendants: Hector Rivera Cruz, the Secretary of Justice
(Puerto Rico's equivalent of a state attorney general); Luis
Feliciano Carreras, Director of the Justice Department's
Prosecutor's Office and a high-ranking official of the Civil
Rights Division; and Carreras' successor, Pedro Geronimo
Goyco. Based on his own investigation, which yielded powerful
evidence that his son was innocent, Guzman Fernandez
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requested that defendant Luis Feliciano Carreras order a
reinvestigation of the murder. Carerras referred the matter
to an attorney with the Civil Rights Division, but refused to
do anything more.
After several months of stonewalling, the Civil
Rights Division finally investigated Guzman's case.
Investigators interviewed three of the true murderer's co-
conspirators, who unanimously stated that Guzman was
innocent. The head of the Civil Rights Division reviewed the
findings of the investigation and concluded that Guzman was
innocent. Defendants Pedro Geronimo Goyco and Hector Rivera
Cruz refused, however, to move for Guzman's release until the
murderer was captured.
On June 11, 1990, Guzman Fernandez told of his
son's plight on Puerto Rico television. Several days later,
he appealed to the Governor of Puerto Rico. The Governor
allegedly ordered defendant Geronimo Goyco to release Guzman.
The defendants instructed Guzman's attorneys to file a motion
for a new trial under Rule 192.1 of the Puerto Rico Rules of
Criminal Procedure. The motion was filed on June 15, 1990,
and Guzman was released the same day.
II.
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Qualified immunity is the defense ordinarily
available to public officials who are sued under 42 U.S.C.
1983. Absolute immunity, by contrast, is reserved for the
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"'special functions'" of certain officials that resemble
functions that would have been immune at common law when
1983 was enacted. Buckley, 113 S. Ct. at 2613 (quoting Butz
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v. Economou, 438 U.S. 478, 508 (1978)). In determining
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whether a particular act fits within the common-law tradition
of absolute immunity, the Supreme Court takes a "functional
approach," Burns v. Reed, 500 U.S. 478, 486 (1991), examining
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"'the nature of the function performed, not the identity of
the actor who performed it.'" Buckley, 113 S. Ct. at 2613
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(quoting Forrester v. White, 484 U.S. 219, 229 (1988)).
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Under the functional approach, it is immaterial
that the defendants were prosecutors ex officio. Absolute
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immunity protects the prosecutor's "'role as advocate for the
State,'" and not his or her role as an "'administrator or
investigative officer.'" Burns, 500 U.S. at 491 (quoting
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Imbler v. Pachtman, 424 U.S. 409, 430-31, 431 n.33 (1976)).
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Prosecutorial conduct is absolutely immune only if it is
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"intimately associated with the judicial phase of the
criminal process . . . ." Imbler, 424 U.S. at 430-31
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(holding that state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosecution, including
presentation of the state's case at trial). See also
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Buckley, 113 S. Ct. at 2614; Celia v. O'Malley, 918 F.2d
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1017, 1019 (1st Cir. 1990) ("a prosecutor enjoys absolute
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immunity from suit based on actions taken pursuant to his
quasi-judicial function").
We begin by dividing the defendants' challenged
conduct into two phases: (1) the delay in performing the
post-trial investigation, including any inadequacies in the
investigation itself; and (2) the failure to go to court to
obtain Guzman's release after the investigation had
established his innocence. As the defendants moved from (1)
to (2), and as the evidence of Guzman's innocence mounted,
their acts became increasingly associated with the judicial
phase of the criminal process. To illustrate: once Guzman's
innocence was established, the defendants could obtain his
release only by filing a motion to dismiss the criminal
action, or by acquiescing in Guzman's own motion for a new
trial. Looking backwards from this endpoint, we might
characterize (1), the post-trial investigation, as a
preparatory step for (2), the in-court exercise of the
prosecutorial function.
The defendants seem to think that absolute immunity
extends to all conduct that facilitates the prosecutorial
function. The functional analysis, however, requires us to
draw a line between preparatory conduct that is merely
administrative or investigative, and that which is itself
prosecutorial. For example, some, but not all, of the
prosecutor's preparatory acts in initiating a prosecution and
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presenting the State's case are absolutely immune. See
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Imbler, 424 U.S. at 431 n.33; Burns, 500 U.S. at 492-96 (no
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absolute immunity for prosecutor's legal advice to police
that there was probable cause for an arrest); Buckley, 113 S.
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Ct. at 2615-17 (no absolute immunity for prosecutors'
conspiracy to manufacture false evidence that was later
introduced at grand jury proceedings and at trial, or for a
prosecutor's out-of-court statements to the press). Cf.
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Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th
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Cir. 1991) ("[A]bsolute immunity may attach even to . . .
administrative or investigative activities when these
functions are necessary so that a prosecutor may fulfill his
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function as an officer of the court.") (emphasis added;
citations and internal quotation marks omitted). The
prosecutorial nature of an act does not spread backwards like
an inkblot, immunizing everything it touches. See Burns, 500
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U.S. at 495 ("Almost any action by a prosecutor, including
his or her direct participation in purely investigative
activity, could be said to be in some way related to the
ultimate decision whether to prosecute, but we have never
indicated that absolute immunity is that expansive.").
We do not think that absolute immunity should
extend to the preparatory conduct in this case. The
investigators of the Civil Rights Division, whose actions
have been imputed to the defendants, actively gathered and
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corroborated evidence of Guzman's innocence. These are
functions typically performed by police officers and
detectives. By contrast, the prosecutor-as-advocate
"evaluat[es] evidence and interview[s] witnesses as he
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prepares for trial . . . ." Buckley, 113 S. Ct. at 2616
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(emphasis added). It is not the prosecutor's usual office to
uncover evidence in the first instance, before s/he has cause
to initiate a post-trial judicial proceeding. And to the
extent that prosecutors do so act, they are not performing a
function "intimately associated with the judicial phase of
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the criminal process . . . ." Imbler, 424 U.S. at 430
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(emphasis added).
Our functional analysis draws upon Buckley, a pre-
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trial immunity case, in which the Supreme Court denied
absolute immunity to prosecutors who had conspired to
manufacture false evidence before there was probable cause to
arrest the suspect. "When a prosecutor performs the
investigative functions normally performed by a detective or
police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one and
not the other." Id. at 2616 (citation and internal quotation
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marks omitted). The prosecutors in Buckley were not
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functioning as advocates for the state, but in an "entirely
investigative" capacity, inasmuch as they lacked probable
cause to arrest the suspect or initiate judicial proceedings
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during that period. Id. "A prosecutor neither is, nor
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should consider himself to be, an advocate before he has
probable cause to have anyone arrested." Id.
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This case mirrors Buckley in the post-trial
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context. It is undisputed on appeal that no post-conviction
proceeding was pending at the time of the civil rights
investigation. Although the investigation ultimately gave
the defendants cause to move to reopen the criminal
proceedings -- i.e., to resume their role as "advocate[s] for
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the [Commonwealth]," Imbler, 424 U.S. at 431 n.33 -- this was
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only one of several possible outcomes. The investigation
might have found nothing at all. Or, it might have exposed
evidence of prosecutorial misconduct, such as the withholding
of potentially exculpatory material, but no conclusive
evidence of Guzman's innocence. Neither result would require
the defendants to perform a quasi-judicial function in
Guzman's case. Only with the benefit of hindsight can the
defendants marry the investigation to the exercise of a
quasi-judicial function. See Buckley, 113 S. Ct. at 2616
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(noting that prosecutors lacked "probable cause . . . to
initiate judicial proceedings" during period of their
challenged conduct). Accordingly, the civil rights
investigation had only an attenuated and contingent, as
opposed to "intimate[]," association with the judicial phase
of the criminal process. Imbler, 424 U.S. at 430.
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We note several other reasons for not extending
absolute immunity to any delays or inadequacies in the civil
rights investigation. First, "the official seeking absolute
immunity bears the burden of showing that such immunity is
justified for the function in question." Burns, 500 U.S. at
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486. The defendants here have not identified any historical
or common-law support for extending absolute immunity to the
conduct of a civil rights investigation that is only
contingently associated with the judicial phase of the
criminal process. "Absent a tradition of immunity comparable
to the common-law immunity from malicious prosecution," the
Supreme Court has "not been inclined to extend absolute
immunity from liability under 1983." Id. at 493 (citing
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Malley v. Briggs, 475 U.S. 335, 342 (1986)).
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Second, to the extent that the defendants were
functioning as officials of the Civil Rights Division, they
were not acting purely as advocates for the Commonwealth, but
partly to vindicate Guzman's civil rights. The mixed purpose
of the civil rights investigation reflects the defendants'
own mixed functions. This factor also tends to separate
their conduct from the judicial phase of the criminal
process.
Third, had the defendants been civil rights
officials only, it seems unlikely that they would be entitled
to absolute immunity for the investigation itself. The
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defendants should not enjoy absolute immunity for the same
conduct merely because they happen also to direct the
Prosecutor's Office. Cf. Burns, 500 U.S. at 495 (finding it
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"incongruous to allow prosecutors to be absolutely immune
from liability for giving advice to the police, but to allow
police officers only qualified immunity for following the
advice"); Buckley, 113 S. Ct. at 2617 n.6 ("If the police,
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under the guidance of the prosecutors, had solicited the
allegedly 'fabricated' testimony . . . they would not be
entitled to anything more than qualified immunity."); Houston
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v. Partee, 978 F.2d 362, 367 (7th Cir. 1992) (prosecutors
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who, acting solely as investigators, acquired and withheld
exculpatory evidence after their role in the prosecution had
ended, are "not entitled to any more immunity than the
defendant police officers"), cert. denied, 113 S. Ct. 1647
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(1993).
Finally, although every denial of absolute immunity
potentially exposes prosecutors to additional litigation, our
analysis cannot be driven by "a generalized concern with
interference with an official's duties . . . ." Burns, 500
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U.S. at 494. "Absolute immunity is designed to free the
judicial process from the harassment and intimidation
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associated with litigation." Id. It is reserved for
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"actions that are connected with the prosecutor's role in
judicial proceedings, not for every litigation-inducing
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conduct." Id. We think that the defense of qualified
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immunity is sufficient to protect prosecutors who, like the
defendants, conduct a post-conviction, civil rights
investigation.
III.
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These considerations do not apply to the
defendants' failure to move for the dismissal of Guzman's
case at the close of the investigation. Guzman does not
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allege that the defendants withheld exculpatory evidence from
him, thereby delaying his own motion for a new trial. See
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Houston, 978 F.2d at 365 (denying absolute immunity where
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claim was based squarely on failure to disclose exculpatory
evidence to the defense). In effect, the plaintiffs' sole
post-investigation claim is that the defendants failed to go
to court as prosecutors to undo Guzman's conviction.
Even if it were shown that the defendants reviewed
the evidence, found Guzman innocent, and did nothing, their
decision withal not to dismiss his criminal case lies at the
heart of the prosecutorial function. See Imbler, 424 U.S. at
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431 n.33 (noting that the duties of a prosecutor as an
advocate for the State include the decision whether to
dismiss an indictment against particular defendants). Cf.
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Harrington v. Almy, 977 F.2d 37, 42 n.3 (1st Cir. 1992) (the
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decision to prosecute or not falls within "the precise zone
of decision-making the Supreme Court has placed at the center
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of the immunity doctrine"). After all, the decision not to
dismiss complements the initial decision to prosecute, and
the prosecutor's absolute immunity for the latter is well
settled. For the reasons cited in Imbler, 424 U.S. at 424-
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27, dismissal decisions fit within the same tradition of
common law immunity as charging decisions; both are entitled
to absolute immunity under 1983. Otherwise, a 1983
plaintiff would simply recast a suit for malicious
prosecution as one for failure to dismiss.
Although the alleged omission is reprehensible, we
hold that the defendants are absolutely immune from civil
damages liability for their post-investigation failure to
move for Guzman's release.
IV.
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Because the undisputed facts show that the
defendants are not entitled to absolute immunity for their
conduct of the civil rights investigation, the district
court's order denying the defendants' motion for summary
judgment is affirmed. The case is remanded for proceedings
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consistent with this opinion.
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