This case requires consideration of the circumstances under which a police officer who intentionally gives false testimony before a grand jury is entitled to absolute immunity from civil liability under 42 U.S.C. Sec. 1983 (1982). The issue is raised on an interlocutory appeal by defendants-appellants Richard Frank and Freeman Marshall from an order of the District Court for the Southern District of New York (David N. Edelstein, Judge) denying their motion to dismiss a civil rights suit brought by plaintiff-appellee Willie D. White. 680 F. Supp. 629. The suit seeks damages for false arrest, false imprisonment, and malicious prosecution. White's claims stem from his arrest and conviction on narcotics charges resting in substantial part on the false testimony of at least one of the appellants, who were then police officers in Poughkeepsie, New York. The conviction was vacated when the perjury was discovered. Appellants contend that dismissal of the section 1983 claim is required because they are absolutely immune from any civil liability based on their grand jury testimony. We conclude that the officers are not immune from liability if they can be considered to be complaining witnesses. Because this status determination raises a disputed factual issue, the immunity defense cannot be determined on an interlocutory appeal, and we therefore must dismiss the appeal.

The complaint contains the following allegations. Until sometime in mid-1985, the appellants Frank and Marshall were police officers in the Crime Prevention Unit of the Poughkeepsie Police Department. Both officers appeared before the Dutchess County grand jury in the summer of 1983 and testified that they had observed White sell small quantities of cocaine to a confidential informant, Frank testifying to a sale on June 8, 1983, and Marshall testifying to a sale on June 15, 1983.

The record at this stage does not reveal whether additional evidence, testimonial or otherwise, was presented to the grand jury concerning the alleged crimes. Nor are we informed of any additional facts detailing the nature and extent of appellants' roles in the initial stages of the prosecution.

The grand jury returned a four-count indictment charging White with the sale and possession of a controlled substance on both occasions in June. An arrest warrant was issued upon the indictment, and White was arrested by unidentified Poughkeepsie police officers. Unable to make bail, White remained in jail pending trial. After a pretrial suppression hearing, at which Frank and Marshall again testified against White, the case proceeded to trial.

At trial, Frank and Marshall once again appeared as witnesses and repeated their testimony concerning the two alleged narcotics transactions. White was convicted on the counts relating to the alleged June 8 episode, concerning which Frank had testified. The jury could not, however, reach a verdict on the counts relating to the June 15 episode, which had been the subject of Marshall's testimony, and these counts were dismissed. White was sentenced to a prison term of seven and one-half to fifteen years.

During the latter part of 1984 and early 1985, the Dutchess County District Attorney's office investigated allegations of official misconduct in the Poughkeepsie Police Department's Crime Prevention Unit. The probe apparently uncovered widespread corruption implicating to some extent both Frank and Marshall. Frank was charged with grand larceny in the third degree, criminal possession of stolen property in the second degree, and tampering with physical evidence, all arising out of his activities as a police officer. He later pled guilty to tampering with physical evidence. Criminal charges were also brought against Marshall as a result of the investigation, and he subsequently pled guilty to the crime of official misconduct.

In early 1985 Frank confessed to the Dutchess County District Attorney's office that his testimony in the proceedings against White had been perjured. As a consequence, White's conviction was vacated pursuant to Article 440 of the New York Criminal Procedure Law, and he was released from custody after serving almost two years in prison.

White then brought suit under section 1983, claiming that his rights protected by the Fourth, Sixth, and Fourteenth Amendments had been violated as a result of the false arrest, false imprisonment, and malicious prosecution allegedly instigated and orchestrated by Frank and Marshall.1 The defendants moved to dismiss the complaint on the ground that they are absolutely immune from civil liability for damages based on their testimony before the grand jury, at the pretrial suppression hearing, and at trial. They relied then, as they do now, primarily on Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983), which held that police officers are immune from section 1983 liability based on their testimony as witnesses at trial. Judge Edelstein agreed that Briscoe required dismissal of the claims arising from defendants' testimony at the suppression hearing and at trial. However, the District Judge ruled that the defendants were not immune from liability for damages based on their testimony before the grand jury.

Although the denial of a motion to dismiss is ordinarily not an appealable "final decision" within the meaning of 28 U.S.C. Sec. 1291 (1982), the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), has been construed to permit interlocutory appeals from denials of substantial claims of immunity. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (qualified immunity defense); Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) (absolute immunity defense); Musso v. Hourigan, 836 F.2d 736 (2d Cir.1988) (qualified immunity defense); Minotti v. Lensink, 798 F.2d 607 (2d Cir.1986) (Eleventh Amendment immunity defense), cert. denied, --- U.S. ----, 107 S. Ct. 2484, 96 L. Ed. 2d 376 (1987); San Filippo v. U.S. Trust Co., 737 F.2d 246 (2d Cir.1984) (absolute immunity defense). However, interlocutory appeal is not available where the immunity issue turns on disputed questions of fact. See Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Group Health Inc. v. Blue Cross Association, 793 F.2d 491, 497 (2d Cir.1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 758 (1987); Evans v. Dillahunty, 711 F.2d 828, 830 (8th Cir.1983). Thus our jurisdiction over this appeal depends on whether the appellants' immunity defense can be decided as a matter of law. That issue, in turn, requires consideration of the nature of immunities concerning testimony in criminal prosecutions.

Section 1983 "on its face admits of no immunities," Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L. Ed. 2d 128 (1976), but the Supreme Court has "concluded that immunities 'well grounded in history and reason' ha[ve] not been abrogated 'by covert inclusion in the general language' of Sec. 1983." Id. at 418, 96 S.Ct. at 989 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S. Ct. 783, 788, 95 L. Ed. 1019 (1951)). The Court has developed a two-step approach for determining whether an immunity defense is available in a section 1983 suit. The critical initial question is "whether an official claiming immunity under Sec. 1983 can point to a common law counterpart to the privilege he asserts." Malley v. Briggs, 475 U.S. 335, 339-40, 106 S. Ct. 1092, 1095-96, 89 L. Ed. 2d 271 (1986). Second, if the official "was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether Sec. 1983's history or purposes nonetheless counsel against recognizing the same immunity in Sec. 1983 actions." Tower v. Glover, 467 U.S. 914, 920, 104 S. Ct. 2820, 2824, 81 L. Ed. 2d 758 (1984). See, e.g., Briscoe v. LaHue, supra, 460 U.S. at 336-46, 103 S. Ct. at 1116-21. For reasons that will become clear, only the first of these two steps requires consideration on the pending appeal.

The common law made a subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution--complaining witnesses--did not enjoy immunity. The distinction reflected the difference between the two causes of action by which those falsely accused sought to hold witnesses liable. In an action for defamation, the perjurious witness was sought to be held liable only for the defamatory effect of his testimony, and in such an action he enjoyed absolute immunity upon a threshold showing that the allegedly defamatory statements were relevant to the judicial proceeding. See Briscoe v. LaHue, supra, 460 U.S. at 330-32 & n. 11, 103 S. Ct. at 1112-13 & n. 11. This immunity applied to grand jury as well as trial testimony. See Schultz v. Strauss, 127 Wis. 325, 329, 106 N.W. 1066 (1906); Kidder v. Parkhurst, 3 Allen 393, 396 (Mass.1862); Sands v. Robison, 12 Smedes & M. 704, 20 Miss. 704 (1849); King v. Skinner, 1 Lofft 55, 56, 98 Eng.Rep. 529, 530 (K.B.1772); Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 488 n. 78 (1909). However, in an action for malicious prosecution, the complaining witness was sought to be held liable for his role in initiating a baseless prosecution, and "complaining witnesses were not absolutely immune at common law," Malley v. Briggs, supra, 475 U.S. at 340, 106 S. Ct. at 1096. See, e.g., Dennis v. Ryan, 65 N.Y. 385 (1875); Fitzjohn v. Mackinder, 9 C.B. (N.S.) 506, 142 Eng.Rep. 199 (1861); see generally W. Prosser, Law of Torts Sec. 119 (4th ed. 1971).2

Indeed, courts and commentators often distinguished between the two actions precisely in terms of the availability of immunity. In Hastings v. Lusk, 22 Wend. 410 (N.Y.1839), the court described that class of communications entitled to absolute "privilege," i.e., immunity, in a defamation suit:

To this class, also, belong complaints made to grand juries and magistrates, charging persons with crimes, for which no action for slander will lie, although express malice as well as the absolute falsity of the charge can be established by proof. But the law has provided a different remedy in cases of that kind, where, in addition to what has before been stated, it can be proved that the party who made the complaint had no probable cause for believing that the charge was true.

Id. at 417 (emphasis added). In 1860, another New York court offered a similar analysis:

In the case of judicial proceedings ... words spoken or written by a party, by counsel, by a judge, a juror or a witness, although false, defamatory and malicious, are not actionable if they were uttered in the due course of the proceeding, in the discharge of a duty, or the prosecution or defense of a right, and were pertinent and material to the matter in hand. It is unquestionable that a person who institutes a groundless proceeding, whether civil or criminal, against another, upon false or defamatory charges, is liable to an action for the injury he occasions. But that the action must be for the malicious complaint, indictment or action, and not for the words.

Perkins v. Mitchell, 31 Barb. 461, 468 (N.Y.Sup.Ct.1860). See also, e.g., Kidder v. Parkhurst, supra, 3 Allen at 396 (Mass.1862) (dismissing libel claim on immunity grounds while considering malicious prosecution claim on the merits); Torrey v. Field, 10 Vt. 353, 415 (1838); Veeder, supra, 9 Colum.L.Rev. at 471 (discussing alternative remedies available despite absolute immunity from defamation). See generally Harper, Malicious Prosecution, False Imprisonment and Defamation, 15 Tex.L.Rev. 157 (1937) (comparing actions).3

Other early cases illustrate the point with special pertinence to the pending appeal by permitting a plaintiff to recover in an action for malicious prosecution based in part upon the defendant's appearance before the grand jury. See Dennis v. Ryan, 65 N.Y. 385 (1865); Fitzjohn v. Mackinder, 9 C.B. (N.S.) 506, 142 Eng.Rep. 199 (1861). In Fitzjohn, the Court of Exchequer Chamber ruled that an action for malicious prosecution would lie against a defendant who was bound over to prosecute the plaintiff and who prosecuted by repeating false testimony before the grand and petit juries. The issue was whether one bound over to prosecute by a judicial authority nonetheless may be held liable for having caused the prosecution. A majority of the justices answered affirmatively, and the fact that the defendant falsely and maliciously preferred the indictment before a grand jury was critical to that holding "on the ground that the defendant was not bound by his recognizances to give false evidence, or indeed to continue the prosecution after preferring the bill before the grand jury." H. Stephen, supra, at 17. In the words of Lord Chief Justice Cockburn: "And, as a true bill could not have been found, or a case to go to the jury have been made out, without a repetition of the defendant's former [false] evidence, it must be taken that the defendant, both before the grand jury and on the trial, again produced the forged document and renewed the perjury of which he had before been guilty. Upon these facts, I am of the opinion that the defendant is liable in this action." 9 C.B. (N.S.) at 527, 142 Eng.Rep. at 207.4

This common law background has special relevance to the issue of immunity for public officials sought to be held liable under section 1983 for initiating baseless charges.5 The Supreme Court, recognizing that the common law did not extend immunity to "complaining witnesses," Malley v. Briggs, supra, 475 U.S. at 340-41, 106 S. Ct. at 1096, has denied immunity to police officers sued under section 1983 for wrongfully initiating the criminal process by applying for arrest warrants. The absence of immunity for such action stands in marked contrast to the availability of immunity where liability is asserted solely because of an officer's role in testifying at a judicial proceeding. Thus, immunity has been recognized against a section 1983 suit based on an officer's trial testimony, Briscoe v. LaHue, supra. We have recently afforded immunity against a claim based on testimony at a pretrial suppression hearing, Daloia v. Rose, 849 F.2d 74 (2d Cir.1988), and had previously indicated in dictum that immunity would be available to a grand jury witness. See San Filippo v. U.S. Trust Co., supra, 737 F.2d at 254; cf. Dale v. Bartels, 732 F.2d 278, 282 n. 5 (2d Cir.1984) (noting that question remains open after Briscoe ).

Numerous decisions have similarly afforded immunity to officials charged under section 1983 with testifying falsely at various types of pretrial proceedings, although the decisions have not been careful to recognize that such immunity is available only where the constitutional tort is simply giving false testimony. See Williams v. Hepting, 844 F.2d 138 (3d Cir.1988) (adversarial pretrial proceedings); Holt v. Castaneda, 832 F.2d 123 (9th Cir.1987) (same), cert. denied, --- U.S. ----, 108 S. Ct. 1275, 99 L. Ed. 2d 486 (1988); Macko v. Byron, 760 F.2d 95 (6th Cir.1985) (per curiam) (grand jury); Kincaid v. Eberle, 712 F.2d 1023 (7th Cir.) (per curiam) (same), cert. denied, 464 U.S. 1018, 104 S. Ct. 551, 78 L. Ed. 2d 725 (1983); Briggs v. Goodwin, 712 F.2d 1444 (D.C.Cir.1983) (grand jury motion hearing), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984); see also Strength v. Hubert, 660 F. Supp. 878, 885-87 (M.D.Ala.), modified in part, 670 F. Supp. 322 (1987) (grand jury); Dale v. Bartels, 552 F. Supp. 1253 (S.D.N.Y.1982) (grand jury, pre-Briscoe ), aff'd in part, rev'd in part on other grounds, 732 F.2d 278 (2d Cir.1984). But see Anthony v. Baker, 767 F.2d 657, 663 (10th Cir.1985) (Briscoe inapplicable to grand jury proceeding); Wheeler v. Cosden Oil & Chemical Co., 734 F.2d 254, 261 & n. 16 (5th Cir.) (Briscoe inapplicable to probable cause hearing), modified on other grounds, 744 F.2d 1131 (1984). Where, however, the constitutional tort is the action of a police officer in initiating a baseless prosecution, his role as a "complaining witness" renders him liable to the victim under section 1983, just as it did at common law, and the fact that his testimony at a judicial proceeding may have been the means by which he initiated the prosecution does not permit him to transpose the immunity available for defamation as a defense to malicious prosecution.

Appellants also contend that the role of both the public prosecutor and the grand jury in advancing the prosecution of White necessarily insulated them from liability for malicious prosecution. We disagree. The intervening acts of a grand jury have never been enough to defeat an otherwise viable malicious prosecution claim, whether or not the grand jury votes a true bill or even returns an indictment ultimately determined to be deficient as a matter of law. See H. Stephen, supra, at 10-13 (discussing English cases). And though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence. See Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300, 164 N.E. 104, 106 (1928); Dennis v. Ryan, supra, 65 N.Y. at 388-89; W. Prosser, supra, Sec. 119, at 846; Restatement (Second) of Torts Sec. 664(2) & comment b (1977).

The public prosecutor's role in the prosecution likewise does not affect our immunity analysis, though again it may affect appellants' ultimate liability on the merits. No doubt, the availability of the malicious prosecution action has been curtailed with the growth of the office of the public prosecutor. Unlike the private prosecutor, see Note, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 Yale L.J. 209, 232-33 & n. 127 (1955), the public prosecutor "is absolutely immune from suit for malicious prosecution," Imbler v. Pachtman, supra, 424 U.S. at 437, 96 S. Ct. at 998. See Yaselli v. Goff, 12 F.2d 396 (2d Cir.1926), aff'd, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927) (per curiam). The exercise of independent judgment by the public prosecutor and his active role in initiating criminal prosecutions may decrease the likelihood that a complaining witness will be considered to have "caused" or "procured" the prosecution, thus defeating grounds for liability under this initial prong of the common law standard. See W. Prosser, supra, Sec. 119, at 837 ("If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer ... the [defendant] is not regarded as having instigated the proceeding...." (footnote omitted)); Restatement (Second ) of Torts, supra, Sec. 653 comment g.

As with the grand jury, however, the public prosecutor's role in a criminal prosecution will not necessarily shield a complaining witness from subsequent civil liability where the witness's testimony is knowingly and maliciously false. See Hopkinson v. Lehigh Valley R.R. Co., supra, 249 N.Y. at 300-01, 164 N.E. at 106; Dennis v. Ryan, supra, 65 N.Y. at 388-89; see also Russo v. New York, supra, 672 F.2d at 1018 (presumption of probable cause arising from arrest warrant disappears where warrant is issued on the basis of sworn accusations of defendant in malicious prosecution action); W. Prosser, supra, Sec. 119, at 837; Restatement (Second) of Torts, supra, Sec. 653 comment g. "It is quite clear," wrote two English commentators in the early part of this century, "that a defendant who has misled a tribunal by dishonest evidence and thereby caused it to act to the prejudice of the plaintiff is liable, even though he may not have purported to be the prosecutor," J. Clerk & W. Lindsell, supra, at 639 (citations omitted).6

Though the appellants are not entitled to immunity simply because they participated as witnesses before the grand jury that indicted White, they may yet be entitled to immunity if further exploration of the facts demonstrates that they did not play a sufficient role in initiating the prosecution to be liable for the constitutional tort of malicious prosecution. Clearly, the plaintiff has alleged a claim of malicious prosecution and appears to have a factual basis that will defeat a claim of immunity from liability for this tort. Whether that turns out to be the case cannot be determined at this stage. Since the availability of immunity cannot now be determined as a matter of law, we lack jurisdiction over this interlocutory appeal and are obliged to dismiss so that the matter may proceed in the trial court.

The appeal is therefore dismissed.