Giraldo v. Kessler, et al.

11-2367-cv
Giraldo v. Kessler, et al.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Argued: June 12, 2012 Decided: September 14, 2012) 4
Docket No. 11-2367-cv 5
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KARLA GIRALDO, 7 Plaintiff-Cross-Defendant-Appellee, 8
9 - v. - 10
11 SCOTT EVAN KESSLER, Assistant District Attorney, Bureau Chief of 12 Domestic Violence, individually and in his official capacity, 13 KESHIA ESPINAL, Assistant District Attorney, in her official 14 capacity, 15 Defendants-Cross-Defendants-Appellants, 16
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18 CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, SEAN WARD, 19 Detective, in his official and individual capacity, THOMAS 20 FITZGERALD, P.O., in his official and individual capacity, 21 Defendants-Cross-Defendants, 22
23
24 SAFE HORIZON, INC., ENIDIA SEOANE, RICHARD A. BROWN, Queens 25 County District Attorney, individually and as the District 26 Attorney of Queens County, NORTH SHORE LONG ISLAND JEWISH HEALTH 27 SYSTEM, INC., DAWNE KORT, M.D., SUSAN CABIBBO, R.N., DANIEL 28 FROGEL, DR., 29 Defendants-Cross-Defendants-Cross-Claimants. 30
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33 B e f o r e: WINTER, CABRANES, and CARNEY, Circuit Judges. 34
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Appeal from a denial of absolute prosecutorial immunity by the 1
United States District Court for the Eastern District of New York 2
(John Gleeson, Judge). We vacate and remand. 3
ELIZABETH S. NATRELLA (Leonard 4 Koerner, on the brief), of counsel, 5 for Michael A. Cardozo, Corporation 6 Counsel of the City of New York, 7 New York, New York, for Defendants- 8 Appellants. 9
10 CHRISTOPHER BELLISTRI, Cronin & 11 Byczek LLP, Lake Success, New York, 12 for Plaintiff-Appellee. 13
14 Janet DiFiore, District Attorney, 15 Anthony J. Servino, Richard 16 Longworth Hecht, Steven A. Bender, 17 Assistant District Attorneys, of 18 counsel, Westchester County 19 District Attorney’s Office, White 20 Plains, New York, for Amicus Curiae 21 District Attorneys Association of 22 the State of New York in support of 23 Defendants-Appellants. 24
25 WINTER, Circuit Judge: 26
Queens County Assistant District Attorneys Scott Evan 27
Kessler and Keshia Espinal appeal from Judge Gleeson’s denial of 28
absolute immunity in an action brought under, inter alia, 42 29
U.S.C. § 1983. Karla Giraldo, the plaintiff-appellee, alleged in 30
her complaint that appellants’ interrogation of her following the 31
arrest of her boyfriend, former New York State Senator Hiram 32
Monserrate, violated her civil rights. 1 We vacate and remand. 33
34
1Although appellee did not identify her “boyfriend” by name in the
complaint, the district court took judicial notice that the references are to
Monserrate. No party disputes the truth of that conclusion.
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BACKGROUND 1
We view the facts alleged in the complaint in the light most 2
favorable to appellee. See Warney v. Monroe County, 587 F.3d 3
113, 116 (2d Cir. 2009). We also take judicial notice of 4
relevant matters of public record. See, e.g., Shmueli v. City of 5
New York, 424 F.3d 231, 233 (2d Cir. 2005); Fed. R. Evid. 201(b) 6
(permitting judicial notice of facts “not subject to reasonable 7
dispute”). 8
On December 19, 2008, appellee suffered a laceration above 9
her left eye requiring twenty stitches to close. Monserrate 10
brought her to a hospital emergency room for treatment. There, 11
she was seen by defendants Dr. Kort and Dr. Frogel. Appellee 12
told them that she was injured as a result of an “accident” that 13
occurred when her boyfriend brought her a glass of water that 14
broke, causing shards to fly and cut her forehead. Doctors Kort 15
and Frogel suspected domestic abuse and contacted the New York 16
City Police Department. Appellee also told Nurse Susan Cabibbo 17
that she was not in need of protection and that she was not 18
involved in an altercation. The nurse nevertheless contacted the 19
police and informed them that appellee was a victim of domestic 20
violence. 21
Soon afterward, Police Officer Fitzgerald and another 22
unidentified officer arrived at the hospital and interviewed 23
Monserrate and appellee separately. Officer Fitzgerald then 24
arrested Monserrate. After the completion of appellee’s 25
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treatment, Kort and Frogel did not allow appellee to leave and 1
had her transported to the 105th Precinct where she was kept for 2
more than five hours. At the precinct, Detective Ward 3
interrogated appellee regarding her injury, and she consistently 4
responded that it was the result of an accident. Detective Ward 5
then “ordered” appellee to sign a statement accusing Monserrate 6
of assaulting her, but she refused. Appellee continued to be 7
interrogated by police personnel. 8
After the police interrogation, appellee was taken against 9
her will to the Queens District Attorney’s office, where she was 10
interviewed by appellants. Appellee states she told appellants 11
that she did not want to talk, but that they nevertheless 12
continued to interrogate her. After two hours of interrogation 13
by appellants, appellee was released. 14
Meanwhile, on the day of the injury and arrest, Monserrate 15
was arraigned and bail was posted. See People v. Hiram 16
Monserrate, Docket Number 2008QN067420 (felony complaint filed 17
and dated December 19, 2008, charging two counts of felony 18
assault in the second degree and one count of misdemeanor 19
criminal possession of a weapon in the fourth degree; Monserrate 20
posted bail on December 19, 2008); see also Shmueli, 424 F.3d at 21
233 (“The New York State . . . prosecution of Shmueli is a matter 22
of public record, of which we take judicial notice.”); cf. 23
Warney, 587 F.3d at 118 (taking judicial notice of federal habeas 24
corpus petition on appeal). 2
25
2We may also take notice of the fact that Monserrate was convicted of
third-degree assault in connection with the incident. See People v.
Monserrate, 90 A.D.3d 785, 785-86, 934 N.Y.S.2d 485, 487-88 (2d Dep’t 2011),
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Appellants moved to dismiss the complaint on various 1
grounds, including absolute immunity. The district court denied 2
the motion. On the merits, the court held that appellee’s 3
allegations of being “unlawfully detained, held against her will 4
and maliciously interrogated” by appellants in violation of her 5
right to be free from unreasonable seizures stated plausible 6
Section 1983 claims. The court also held that appellee could 7
bring claims against appellants in their individual capacities, 8
but that she could not proceed against them in their official 9
capacities because doing so would constitute an impermissible 10
action against the Queens District Attorney’s office. Finally, 11
on the issue before us, the court rejected appellants’ argument 12
that absolute immunity shielded them from liability, finding that 13
their “conduct in this case [was] more closely linked to the 14
prosecutor[s’] investigative duties [rather] than to [their] role 15
as government litigator[s] . . . .” 16
This appeal followed. 17
DISCUSSION 18
This is, of course, an interlocutory appeal. However, 19
because prosecutorial immunity is intended to shield prosecutors 20
from legal proceedings, as well as liability, a denial of 21
immunity is final as to the need to proceed with the action and, 22
at least as to matters of law, is reviewable under the collateral 23
order doctrine. See, e.g., Hill v. City of New York, 45 F.3d 24
653, 659-60 (2d Cir. 1995); Kaminsky v. Rosenblum, 929 F.2d 922, 25
925-26 (2d Cir. 1991); see also Nixon v. Fitzgerald, 457 U.S. 26
lv. denied, 18 N.Y.3d 996, 968 N.E.2d 1007 (2012).
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731, 742-43 (1982) (jurisdiction to review denial of absolute 1
immunity under the collateral order doctrine if the denial 2
involves only a question of law). We review such issues of law 3
de novo. See Warney, 587 F.3d at 120. 4
Absolute immunity bars a civil suit against a prosecutor for 5
advocatory conduct that is “intimately associated with the 6
judicial phase of the criminal process.” Imbler v. Pachtman, 424 7
U.S. 409, 430 (1976). This immunity attaches to conduct in 8
court, as well as conduct “preliminary to the initiation of a 9
prosecution and actions apart from the courtroom.” Id. at 431 10
n.33. 11
An official claiming immunity bears the burden of showing 12
that the particular immunity claimed applies. See Burns v. Reed, 13
500 U.S. 478, 486-87 (1991). In determining whether absolute 14
prosecutorial immunity attaches, we apply a “functional 15
approach.” Hill, 45 F.3d at 660. “Prosecutorial immunity from 16
§ 1983 liability is broadly defined, covering ‘virtually all 17
acts, regardless of motivation, associated with [the 18
prosecutor’s] function as an advocate.’” Id. at 661 (quoting 19
Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). The Supreme Court 20
has explained that a prosecutor’s functions preliminary to the 21
initiation of proceedings include “whether to present a case to a 22
grand jury, whether to file an information, whether and when to 23
prosecute, whether to dismiss an indictment against particular 24
defendants, which witnesses to call, and what other evidence to 25
present.” Imbler, 424 U.S. at 431 n.33. 26
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Analysis of a claim of immunity requires us to view the 1
relevant circumstances as would a reasonable official in the 2
claimant’s position. 3 See Hill, 45 F.3d at 662 (“[T]he 3
‘functional’ test for absolute immunity is an objective one; it 4
does not depend upon the state actor’s subjective intent.”); 5
Dory, 25 F.3d at 83; see also Burns, 500 U.S. at 487-88 6
(allegations that prosecutor “deliberately misled the Court” 7
during preliminary hearing were deemed irrelevant where the 8
prosecutor’s objective act –- presenting evidence at the hearing 9
–- enjoyed absolute immunity). The relevant question, therefore, 10
is whether a reasonable prosecutor would view the acts challenged 11
by the complaint as reasonably within the functions of a 12
prosecutor. If the generic acts are within those functions, 13
absolute immunity applies to protect the prosecutor even in the 14
face of a complaint’s allegations of malicious or corrupt intent 15
behind the acts. See id. at 489-90. Otherwise, the absolute 16
immunity would not be absolute. 17
Under a functional approach, actions are not shielded by 18
absolute immunity merely because they are performed by a 19
prosecutor. “A prosecutor’s administrative duties and those 20
investigatory functions that do not relate to an advocate’s 21
preparation for the initiation of a prosecution or for judicial 22
proceedings are not entitled to absolute immunity.” Buckley v. 23
Fitzsimmons, 509 U.S. 259, 273 (1993). In Buckley, the plaintiff 24
3In many cases, of course, the underlying circumstances may be in
dispute. See, e.g., Grp. Health Inc. v. Blue Cross Ass’n, 793 F.2d 491, 497
(2d Cir. 1986) (dismissing defendant’s claim of absolute immunity on appeal
where questions of fact were at issue). However, the allegations of the
complaint here are sufficient to resolve the issues in this case.
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sought damages from prosecutors for, inter alia, allegedly 1
“fabricating evidence during the preliminary investigation of a 2
crime.” Id. at 261. In holding that the prosecutors were not 3
entitled to absolute immunity, the Court stated that a prosecutor 4
“neither is, nor should consider himself to be, an advocate 5
before he has probable cause to have anyone arrested.” Id. at 6
274. 7
“[A]ctions taken as an investigator enjoy only qualified 8
immunity.” Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000). 9
“Although all investigative activity could be considered in some 10
sense to be ‘prepar[ation] for the initiation of judicial 11
proceedings,’ the Supreme Court has sought to draw a line between 12
those preparatory steps that a prosecutor takes to be an 13
effective advocate of a case already assembled and those 14
investigative steps taken to gather evidence.” Smith v. 15
Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley, 509 16
U.S. at 273). The Supreme Court “has identified ‘evaluating 17
evidence and interviewing witnesses’ as falling on the absolute 18
immunity side of the line, leaving ‘searching for the clues and 19
corroboration’ that might lead to a recommendation for an arrest 20
on the qualified immunity side.” Id. at 94 (quoting Buckley, 509 21
U.S. at 273). 22
Therefore, not every interview, interrogation, or other act 23
by a prosecutor with the potential of revealing new information 24
is an investigative act entitled to only qualified immunity. See 25
Warney, 587 F.3d at 124 (prosecutors’ actions to deal with post- 26
trial initiatives challenging a criminal conviction, even though 27
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they could be seen as investigative and administrative, were 1
“also integral to the overarching advocacy function”). Good 2
prosecutors may –- usually should –- perform acts reasonably 3
characterized as investigative at all phases of a criminal 4
proceeding. The investigative acts that are entitled to only 5
qualified immunity are those undertaken in the phase of law 6
enforcement that involves the gathering and piecing together of 7
evidence for indications of criminal activities and determination 8
of the perpetrators. Smith, 147 F.3d at 94. 9
In contrast, investigative acts reasonably related to 10
decisions whether or not to begin or to carry on a particular 11
criminal prosecution, or to defend a conviction, are shielded by 12
absolute immunity when done by prosecutors. To be sure, as the 13
Supreme Court cautioned in Buckley, even the presence of probable 14
cause “does not guarantee a prosecutor absolute immunity from 15
liability for all actions taken afterwards.” 509 U.S. at 274 16
n.5. Such acts are shielded by absolute immunity only when they 17
are of a kind reasonably related to the ordinary functions of a 18
prosecutor with such probable cause. 19
Viewed through the eyes of a reasonable prosecutor, 20
appellants’ acts in the present case were well within their 21
legitimate functions as prosecutors. Monserrate had been 22
arrested prior to appellants’ interview of appellee. Once the 23
arrest took place, legal decisions at the core of the 24
prosecutorial function -- pursuit of the charges, arraignment, 25
bail, etc. -- had to be made by appellants and made quickly. The 26
interview of appellee was clearly in a “pending or in preparation 27
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[of] a court proceeding in which the prosecutor acts as an 1
advocate.” Warney, 587 F.3d at 123. 2
Appellee was obviously an important witness with regard to 3
the proceeding against Monserrate. That she claimed her injuries 4
resulted from an accident hardly weighed against interviewing 5
her. Viewing the circumstances objectively, her claim that her 6
injuries were the result of an accident might well cause a 7
reasonable prosecutor to believe that interrogation was even more 8
necessary than would have been the case in more common 9
circumstances. A reasonable prosecutor easily could –- should –- 10
have viewed a first-hand interview and personal weighing of the 11
credibility of appellee’s self-propelled-shattering-glass story 12
as necessary. While questioning an important witness may 13
accurately be described as investigative, appellants’ interview 14
was an integral part of appellants’ advocatory function as 15
prosecutors protected by absolute immunity. See, e.g., Imbler, 16
424 U.S. at 430. 17
Because the objective circumstances triggered absolute 18
immunity, appellee’s allegations that the interview was in 19
furtherance of a conspiracy to “create statements that would 20
falsely implicate [Monserrate] of a crime and falsely state 21
comments that were allegedly made by [appellee]” are irrelevant. 22
See, e.g., Hill, 45 F.3d at 662. 23
24
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CONCLUSION 1
For the foregoing reasons, the order of the district court 2
dated May 27, 2011, denying absolute immunity to the appellants 3
is vacated and remanded for proceedings consistent with this 4
opinion. 5
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