For example, the prosecutor as investigator has been the subject of considerable litigation. In Robichaud v. Ronan,149 a much quoted pre-Imbler decision which involved a prosecutor accused of various attempts to intimidate the plaintiff while in custody to confess to a murder she didn't commit, despite the lack of probable cause to hold her, the Ninth Circuit held that the investigative activities of a prosecutor are protected only by a qualified immunity.150 The Seventh Circuit, in another pre-Imbler case, Hampton v. City of Chicago,151 explicitly used the Robichaud approach to reject the prosecutors' claim of absolute immunity. In Hampton, plaintiffs' complaint could have been read as alleging that the prosecutors and others had conspired to plan and execute a raid in order to kill certain members of the Black Panther party. The court read the complaint more narrowly as alleging the planning and execution of the raid in order simply to obtain evidence. Still, the court rejected the contention that "evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity."152
A recent post-Imbler district court decision followed Robichaud and Hampton in holding that absolute immunity was not available to a prosecutor who allegedly forced the plaintiff to become a police agent and informant through threats and coercion.153 The court simply characterized this activity as "of a police/investigative nature,"154 However, Imbler casts some doubt upon the propriety of a "bright line" test which simply asks whether the activity is of the kind in which police engage.155
In addition to the investigatory role of prosecutors, courts have distinguished the advocacy role from still other prosecutorial activities.156 The District of Columbia Circuit held, albeit in a non-1983 case, that the U.S. Attorney General's role in directing law enforcement activity was not absolutely protected from liability for damages for alleged Fourth and Fifth Amendment violations.157 The prosecutor's role as advocate has also been distinguished from situations in which a corporation counsel allegedly failed to issue an advisory opinion which would have permitted plaintiff to speak at a public gathering.158 A similar conclusion was reached when a prosecutor sent a critical letter to a legislative investigating committee, with copies to the press, about the plaintiff against whom a murder charge had been dismissed and no judicial proceedings were pending or contemplated.159 It was stated in these post-Imbler cases that there was no judicial or quasi-judicial significance to the defendants' conduct. A pre-Imbler Ninth Circuit case reached a similar conclusion about an allegedly wrongful advisory opinion given by a city attorney which resulted in plaintiff's discharge from his job.160 The court refused to extend absolute immunity "to a lawyer in a public law office giving legal advice to a public entity in respect of matters that are not the subject of pending litigation. The purpose of according judicial immunity is to protect the integrity of the judicial process... not to shield lawyers... when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process."161
The Third Circuit recently noted what it called the "thorny issue" of prosecutorial immunity in connection with still another prosecutorial role: the defendant's firing of plaintiff, his first assistant, for publicly contradicting him about his role concerning a concluded criminal case.162 The defendant argued "that prosecutorial immunity should be held to cloak administrative actions such as the discharge involved here. The hiring and firing of the subordinates through whom he acts... is the District Attorney's ultimate discretionary act in his service to the public..."163 But the court avoided being "pricked", and ruled against plaintiff on the merits. It would appear, though, that the defendant's act was clearly administrative and not taken in his role as advocate. Just as a legislator's discharge of an employee was held not protected by a legislator's absolute immunity, because it was not a legislative act,164 so too in all likelihood would this defendant's conduct be unprotected by a prosecutor's absolute immunity because it was not an advocate's act.
Situations may arise in which the prosecutor is found to have acted not as a prosecutor, but rather as an individual. A 1977 Third Circuit decision indicated that a special prosecutor without authority to act as prosecutor in the plaintiff's case would not be absolutely immune from liability for damages arising from a claim that he had conspired with others to bring false criminal charges against the plaintiff'.165 In another Third Circuit decision that same year, the plaintiff, a former congressman, sued a United States Attorney for allegedly attempting to destroy him politically by deliberate leaks to the press of false information in connection with grand jury proceedings.166 In holding that the defendant was protected only by a qualified immunity, the court left open the scope of prosecutorial immunity in a non-advocate context. Instead, the court found that the allegations of deliberate leaks not only went beyond the advocate's role but also exceeded that of the prosecutor as investigator and administrator.167 The court failed to mention the prosecutor's role as a public official who is accountable to the public at large.
This concern with the varied roles of the prosecutor is unique. Unlike legislators and judges whose exposure to potential liability will generally arise in connection with either legislating or judging, the prosecutor not only prosecutes, but investigates, administers, executes and the like. His exposure to potential liability will arise in varied situations which seem to admit of no straightforward immunity approach which is relatively easy to apply.168 Therefore, to the extent that Imbler's rationale is tied to the prosecutor's broadly construed role as advocate and is based on a concern with independent decision making, retrying criminal offenses and the adverse impact on the criminal justice system, distinctions will inevitably have to be drawn between this role and all the others. If, however, the policy underlying Imbler's rationale is based more on protecting honest prosecutors and avoiding the diversion of a prosecutor's attention, then so long as the prosecutor is acting within a traditional prosecutorial role,169 he will be accorded an absolute immunity. It is a fair prediction that at least the prosecutorial role of investigator will be accorded absolute immunity and assimilated into the advocate's role, in part because of the difficulty in drawing a satisfactory line between the prosecutor as advocate and as investigator where there are pending or contemplated criminal matters. The Supreme Court may eventually hold that if absolute immunity for prosecutors is to be effective, a prosecutor should not have to guess whether what he is doing is advocative or investigative.170
Regardless of where the Imbler absolute immunity line is drawn, it is clear that one of the major purposes of absolute immunity is to avoid implicating the merits of the allegations of unlawful conduct against a prosecutor. Thus, the reasoning in pre-Imbler cases about prosecutorial conduct which is "clearly beyond the proper exercise of his authority and exceed[ing] any possible construction of the power granted to this office"171 is no longer to be followed. It improperly focuses on the unauthorized or ultra vires nature of the conduct and not on the role of the prosecutor. Such reasoning led to a result in a 1974 Seventh Circuit decision which is also now clearly incorrect after Imbler.172 There, the refusal of a prosecutor to assist the plaintiff in regaining his property by prosecuting those unlawfully possessing it was characterized as outside the scope of the prosecutor's duties and illegal and hence protected by qualified immunity only.
Consequently, it is surprising that the Ninth Circuit recently used this very approach in a post-Imbler case. Briley v. State of California173 was a 1983 action for damages brought against a trial judge, prosecuting attorneys and others for alleged violations of the plaintiff's constitutional rights. The plaintiff had been charged with child molestation but was offered the opportunity to plead guilty to a lesser offense provided he consent to castration. The plaintiff consented to this surgery even though the plea bargain was never recorded and a court order was never entered approving it. As to the immunity issue, the plaintiff' argued that there was no legal authority whatever for district attorneys to require castration and therefore absolute immunity was inappropriate. Agreeing with this approach to prosecutorial immunity, the Ninth Circuit remanded to determine whether the state trial judge "would have arguably had some common-law or statutory basis for ordering Briley to submit to castration had he been convicted for the child molestation charge. If such authority is found and, thus, judicial immunity attaches, the district attorneys... would be immune from §1983 liability for misrepresentations.... "174 The court cited the Seventh Circuit opinion in Stump v. Sparkman (prior to reversal by the Supreme Court)175 and the district court decision in Wade v. Bethesda Hospital176 as "persuasive authority that a court, at least when ordering the extreme remedy of sterilization, must have specific legislative or common-law authority for doing so,"177 and then made the district attorneys' immunity dependent on the judge's.
After Imbler, however, and even without the Court's decision in Stump, it is clear that district attorneys should be immune when they act as advocates in connection with a specific criminal case. To make their immunity dependent solely upon the judge's not only misdirects the inquiry but also, to the extent it focuses on statutory or common law authority, necessarily implicates the merits. Yet Imbler was designed to preclude just such an inquiry where a prosecutor acts as an advocate. Furthermore, the Court's decision in Stump now makes abundantly clear that the "legislative or common law authority" approach to judicial immunity is wrong. Consequently, Briley's approach is similarly incorrect.
It should be noted, finally, that this discussion of Imbler and its reception in the circuits is limited to prosecutorial immunity for liability for damages. For reasons similar to those discussed earlier in connection with injunctive relief against legislators and judges,178 it is likely that injunctive relief is also available even after Imbler against prosecutors in appropriate situations.179 A post-Imbler Third Circuit decision broadly stating the contrary in connection with the plaintiff's request for injunctive relief' against a prosecutor appears incorrect.180 Because there the plaintiff sought to have his conviction set aside, the case is better treated more narrowly as one in which the prosecutor did not have authority to grant the requested relief.
The Immunity of Public Defenders
In two post-Imbler cases involving claims that public defenders had breached a plea bargain and had failed to respond to requests for help in connection with the preparation of a habeas corpus petition, the Fourth and Ninth Circuits 183 followed Brown and the clear implication of the Court's language in Imbler regarding the need for broad trial discretion for "both the prosecution and the defense."184 They accordingly held that public defenders are protected by absolute immunity. The Seventh Circuit's contrary result in a pre-Imbler case185 was always suspect, because it both relied on a qualified immunity rule for prosecutors186 and misread the Third Circuit's decision in Brown.187 It has now been expressly repudiated by the Seventh Circuit.188 The trend therefore is to apply absolute immunity to both prosecutors and public defenders. It is worth noting, however, that the previously discussed line drawing problems relating to different prosecutorial roles will similarly arise in connection with public defenders.
