Is official who lied to grand jury immune from liability? U.S. Supreme Court to decide

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The justices of the U.S. Supreme Court are set to decide whether a government official who gives perjured grand jury testimony against a defendant is entitled to absolute immunity.

The case of Rehberg v. Paulk involves certified public accountant Charles A. Rehberg, who sought to expose a hospital’s unethical billing and accounting practices by sending anonymous faxes documenting the mismanagement to lawmakers, hospital officials and the public.

The district attorney and his chief investigator, James P. Paulk, investigated the anonymous faxes, discovered that Rehberg was the source and initiated what would be the first of three grand juries to indict Rehberg on a multitude of charges.

Paulk testified at all three proceedings, and two of the three grand juries returned indictments against Rehberg for burglarizing the home of a hospital doctor, assaulting the doctor and engaging in harassing phone calls (in sending faxes).

But Paulk’s testimony was entirely false and he later admitted that he did not gather evidence in the case. The indictments were dismissed, and Rehberg brought suit against Paulk, alleging civil rights violations under §1983, malicious prosecution and several other state law claims.

Paulk moved to dismiss, arguing that he was entitled to absolute immunity because the alleged actions were taken in his official capacity.

The district court denied Paulk’s motion, but the 11th Circuit reversed.

Rehberg sought and was granted certiorari by the Supreme Court.

Looking to 19th century law 
During oral arguments on Tuesday, the attorneys for the parties and the justices turned to the past – 1871, specifically – to determine if the common law provided immunity for officials who acted as “complaining witnesses” in criminal proceedings.

Andrew J. Pincus, a partner in the Washington office of Mayer Brown, argued on Rehberg’s behalf that “complaining witnesses were subject to damages liability at common law in 1871 when §1983 was enacted.”

But Justice Samuel Alito noted that it is not a witness who decides to bring an indictment in a case like this, it’s the prosecutor and the grand jury.

“I don’t see how there is a ‘complaining witness’ in that sense in the traditional grand jury context,” Alito said.

Pincus argued that Paulk was the driving force behind the indictments.

“The common law concluded that, both in 1871 and in the present, there can be a person who is the motivating force behind the prosecution.”

“Is the prosecutor a complaining witness?” asked Justice Antonin Scalia.

“The prosecutor can’t be a complaining witness because the complaining witness is the person who provides the impetus,” Pincus replied.

“Who instigates the prosecutor,” Scalia clarified.

“Yes,” Pincus said.

“What about the person who instigates the instigator?” Scalia asked.

“At common law, that person could be liable,” Pincus replied.

“And you know what the next question’s going to be, right?” Scalia said. “The instigator of the instigator of the instigator! I mean, does this go back forever?”

Pincus said that could happen, and argued that courts have been applying such proximate cause standards under tort law for centuries.

“I don’t think the Court is writing on a blank slate here,” he said.

Piercing the veil of immunity 
John C. Jones, a Marietta, Ga.-based attorney, stressed that all Paulk did was give testimony.

“That there has to be some evidence other than the mere testimony,” he said. “And if there is evidence other than the mere testimony, indeed you can go forward with a 1983 claim.”

Jones distinguished the case from a situation where an investigator “takes[s] and plant[s] evidence in of a crime. [T]hat is a separate and distinct cause of action and that might very well cause the prosecution or the district attorney to act.”

“But there’s always something else” other than testimony, Justice Stephen Breyer said. “He didn’t think of this thing for the first time in the grand jury room.”

Justice Sonia Sotomayor turned to her past experience as a prosecutor to ask whether giving false statements to the prosecutor before the grand jury is enough to cost you immunity.

“I rarely called a witness to a grand jury, when I was a prosecutor, who I hadn’t spoken to before,” Sotomayor noted. “Is the story before an independent act sufficient to bring a malicious prosecution claim?”

Jones said that was possible, but would depend on “whether you would need a witness or can get [the prosecutor] to testify.”

A decision from the Court is expected later this term.