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Lesson Plan – Rehberg v. Paulk

Certiorari granted by the United States Supreme Court on March 21, 2011 Oral arguments scheduled for November 1, 2011

Outline:

The Parties

Petitioner: Charles A. Rehberg 

                                      v.

Respondent: James P. Paulk, Kenneth B. Hodges, and Kelly R. Burke
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FantasyCast

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The Questions Presented

A government official knowingly provides false testimony to a grand jury that results in the arrest of an innocent citizen. Is that government official entitled to absolute immunity from a civil lawsuit?
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Case Background

From September 2003 to March 2004, Petitioner Charles Rehberg sent anonymous faxes to the management of Phoebe Putney Memorial Hospital in Albany, Georgia that criticized the way the hospital was conducting its business. Rehberg alleged that the hospital was being financially dishonest. Respondent Ken Hodges, who was the District Attorney of Dougherty County, Georgia, allegedly had political ties to the hospital management and agreed to investigate the anonymous faxes as a favor. He and Respondent James Paulk, the District Attorney’s Chief Investigator, believed that Rehberg was responsible for the faxes, so they created several fake, but official-looking subpoenas (orders, often made by a grand jury, which require the recipient to produce specified documents) for Rehberg’s phone records and gave them to his telephone companies.  Hodges and Paulk  also created a similar fake subpoena to obtain electronic data from Rehberg’s e-mail provider. The subpoenas claimed that a grand jury (a body of citizens which is tasked with determining, before trial and without the defendant present, whether there is enough evidence to charge an individual with a crime) had been assembled and was requesting the documents, even though no such grand jury actually existed at the time.

On December 14, 2005, the District Attorney produced enough evidence for the grand jury to charge Rehberg with assault, burglary, and harassment.  Rehberg was arrested as a result.  Respondent Paulk, the only witness to the grand jury, testified that Rehberg had broken into Dr. James Hotz’s house and assaulted him, although there was no evidence to support the truth of these statements. Paul lied. Later, Paulk admitted that he never interviewed any witnesses or collected evidence that Rehberg had committed the crimes, and that his testimony to the grand jury was false. After Rehberg challenged the evidence supporting his indictment, the Prosecutor dismissed the case.

Over the next year, Rehberg was indicted by a grand jury for assault and harassment two more times, each using the false testimony of Respondent Paulk. Both the second and third indictments were dismissed by the state trial court for lack of evidence.

At the District Court
Rehberg filed a lawsuit against Hodges and Paulk for violate his constitutional rights under § 1983 by making up subpoenas, lying to the grand jury, and trying to improperly prosecute him. Hodges and Paulk filed a motion to dismiss the lawsuit because they claimed that they were absolutely immune from suit; that is, as government officials, they could not be sued for performing their governmental duties. The trial court disagreed and found that, because Paulk had acted as a complaining witness in the grand jury trial--rather than as a government official--he was not immune from suit.
Opinion of the Court of Appeals
Paulk appealed the denial of absolute immunity to the United States Court of Appeals for the 11th Circuit. The appeals court reversed the trial court’s decision and ruled that the Respondents could not be sued for their actions because they were acting as government officials, and government officials enjoy absolute immunity. Rehberg appealed the decision of the appeals court by filing a petition requesting a writ of certiorari from the United States Supreme Court. The petition argued that different appellate courts were divided on the question of whether government officials who provide false testimony are entitled to absolute immunity from civil lawsuits. Some appellate courts, like the 11th Circuit in Rehberg’s case, ruled that officials are entitled to absolute immunity, while other courts held that officials were only entitled to a lesser degree of immunity, called qualified immunity. Rehberg - now referred to as the Petitioner - argued that the Supreme Court should hear the case to settle the dispute between the appellate courts. On March 21, 2011, the U.S. Supreme Court granted the petition and agreed to hear the case. The Court will hear oral arguments for this case on November 1, 2011.
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The Law

Fourth Amendment to the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Title 42 of the United States Code, Section 1983; Civil Actions for Deprivation of Civil Rights

Every person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Absolute Immunity

This immunity for prosecutors applies to civil (non-criminal) cases brought under Title 42 of the United States Code, Section 1983. The general rule is that a prosecutor is absolutely immune from suit for improperly prosecuting someone (known as malicious prosecution). In Section 1983 actions, prosecutors have absolute immunity for any activities the prosecutor undertakes in his or her representation of the government and which are associated with the adversarial aspects of the criminal process. In other words, prosecutors cannot be sued for things they say or do in front of a judge or grand jury when the prosecutor is fulfilling his or her duty as the government’s representative in court.

Qualified Immunity Qualified immunity is a lesser degree of immunity than absolute immunity.  It shields government officials who perform discretionary governmental functions from civil liability so long as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.
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Relevant Precedents

Briscoe v. LaHue, 460 U.S. 325 (1983) In Briscoe, the Supreme Court answered the question of whether a criminal defendant may sue a police officer under Section 1983 when the officer provides false testimony during a criminal trial.  When Briscoe was convicted of burglary in Indiana state court, LaHue, an Indiana police officer, testified against him. However, Briscoe believed that LaHue had lied at trial and sued LaHue under Section 1983.  LaHue claimed that, as a witness testifying at trial, he was absolutely immune from suit.  The Supreme Court agreed, holding that, as a trial-witness, LaHue was entitled to absolute immunity regardless of his status as a police officer.  Non-governmental witnesses are granted absolute immunity from suit under Section 1983 and a government official is no different than a non-official when he offers testimony at trial.  The Court also expressed significant concern that allowing criminal defendants to sue police officers who testified at trial might open the door to a flood of lawsuits brought by disgruntled defendants who had lost their criminal trials.Malley v. Briggs, 475 U.S. 335 (1986) Malley, a Rhode Island state trooper, submitted an arrest warrant, criminal complaints, and affidavits to a judge alleging that Briggs and others illegally possessed marijuana.  Based on this, Briggs was arrested.  However, after Briggs was arrested, a grand jury did not indict Briggs and the charges were dropped.  Briggs soon thereafter sued Malley under Section 1983.  In the Supreme Court, Malley argued that, as a complaining witness, he should be absolutely immune from suit.   The Court rejected this argument because complaining witnesses were not entitled to absolute immunity in 1871, the year in which Congress passed the Civil Rights Act.  Instead, the Court held that government officials who act as complaining witnesses and whose arrest warrant affidavits do not establish probable cause for arrest, are only entitled to qualified immunity from suit.Kalina v. Fletcher, 522 U.S. 118 (1997) A prosecutor was trying to get a warrant to arrest Fletcher for burglary. He submitted an affidavit in which he swore to tell the truth, under penalty of perjury (lying under oath), detailing the evidence against Fletcher in order to show probable cause. The judge granted the warrant and Fletcher was arrested. It was later shown that the prosecutor made several inaccurate statements about the evidence and Fletcher was released. Fletcher filed a lawsuit against the prosecutor for violating her constitutional right to be free of unreasonable seizures. The U.S. Supreme Court ruled that a prosecutor who makes false statements of fact in an affidavit for an arrest warrant is not protected by absolute immunity.Buckley v. Fitzsimmons, 509 U.S. 259 (1993)
Prosecutors were trying to make a case against Buckley for rape and murder. Police had found a boot print at the scene of the crime and prosecutors tried to connect the boot print to Buckley, but three separate lab studies failed to make a reliable connection. The prosecutors were able to find one expert witness, Robbins, who made a positive identification connecting Buckley to the scene of the crime, but Robbins had a reputation for being willing to make up unreliable expert testimony. After a mistrial, Robbins died and the prosecutors were unable to make a case against Buckley so they released him after he had been in prison for three years during the trial. Buckley sued the prosecutors for fabricating evidence. The U.S. Supreme Court held that the prosecutors were not protected from lawsuits by absolute immunity for fabricating evidence.

Van de Kamp v. Goldstein, 555 U.S. ___ (2009) Goldstein, who was serving time in a California prison after being charged with murder, was released after it was found that his conviction was based largely on the false testimony of a notoriously untrustworthy prison informant. After his release, Goldstein sued various officials involved with his arrest and prosecution, including the prosecuting attorney and chief deputy, saying that these individuals failed to adequately share with his lawyer information about the identity of the jailhouse informant. The prosecutor and deputy argued that they had immunity and could not be sued, but the District Court disagreed, holding that the actions Goldstein addressed in the lawsuit were not “prosecutorial” actions, therefore the defendants could not claim immunity solely because of their role as prosecutors. In a unanimous opinion, the Supreme Court held that the prosecutor and deputy were entitled to absolute immunity from the case, regardless of whether their actions were exclusively “prosecutorial.”

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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Buckley v. Fitzsimmons (1993) Kalina v. Fletcher (1997) Van de Kamp v. Goldstein (2009)
Roberts Not yet on Court NP P
Scalia NP NP P
Kennedy P NP P
Thomas Not yet on Court NP P
Ginsburg Not yet on Court NP P
Breyer Not yet on Court NP P
Alito Not yet on Court Not yet on Court P
Sotomayor Not yet on Court Not yet on Court Not yet on Court
Kagan Not yet on Court Not yet on Court Not yet on Court
P The Justice voted that the government official is protected by Absolute Immunity.
NP The Justice voted that the government official is not protected by Absolute Immunity.
Not yet on Court The Justice was not yet on the Court when the case was decided.
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The Arguments

Rehberg (Petitioner)

On appeal to the Supreme Court, Rehberg  presents three arguments.  First, Rehberg argues that Paulk is not entitled to absolute immunity from suit because no such immunity existed at common law in 1871, the year in which Congress passed Section 1983.  Rehberg argues that the Court’s precedent and other state court opinions from the 1860s and 1870s demonstrate that a complaining witness, such as Paulk, is only entitled to qualified immunity, regardless of whether the witness orally testifies before a grand jury or submits a written affidavit.

Second, Rehberg argues that a complaining witness performs a different function than a prosecutor or a trial witness and accordingly is only entitled to qualified immunity.  Although prosecutors are generally entitled to absolute immunity, they are only entitled to qualified immunity when they act as a witness rather than a prosecutor.  Here, a complaining witness functions much more like a trial-witness than a prosecutor and should thus only be entitled to qualified immunity.

Rehberg finally argues that the question of whether a government official is entitled to either absolute or qualified immunity should not rest on whether the official verbally testified before a grand jury or signed a written affidavit.  Such a distinction is arbitrary and could lead to unfair results depending on the peculiarities of different states’ laws.  Further, granting government officials only qualified immunity in these circumstances would discourage officials from bringing baseless or vindictive criminal charges.
Paulk, Hodges, and Burke (Respondent)
The Respondents argue that they are entitled to absolute immunity, and cannot be sued.
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Oral Arguments

Coming soon.

The Court's Opinion

Coming soon.
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Blog Topics

Write the Opinion - Rehberg v. Paulk Badge (200 Points)

Pretend you are the Justices of the Supreme Court. Vote as a class how this case should be decided, and write an opinion discussing how this case should be resolved. If your classmates do not all agree, write concurring and dissenting opinions to explore all of your different understandings of the case. Each opinion should be at least 250 words, and reference at least three of the cases listed in the Relevant Precedents section.

Friend of the Court - Amicus Brief  Badge (150 points)
Pretend that you are a lawyer and you represent either a supporter of a victim rights group that wants to make it easier to sue police officers, or a group supporting police officers, who want to limit suits against public officials. Write a 200 word Amicus (latin for Friend of the Court) Brief, arguing why the Court should consider the interests of your client. The goal of an amicus brief is to provide information to the court about the implications of their decision beyond the affect it will have on the two parties who appear before them.  Be sure to include citations to the cases, and make a strong policy argument why your side should win. Write a blog post of at least 150 words exploring this issue.
Congressional Intent - Constitutional Law Badge(150 points)

The Supreme Court has held that a government official is entitled to immunity only if that immunity existed in 1871, the year in which Congress passed the Civil Rights Act.  This method of judicial reasoning, similar to the idea of originalism, is referred to as “legislative intent” and requires that judges interpret laws based on what judges believe the legislature --- here, Congress --- intended the law to mean when the law was passed.  What are the reasons which might support this method of legal interpretation? What are the reasons against it?  Should judges attempt to figure out what Congress meant 140 years ago or should they apply modern understandings? Is one method more democratic?  Pick sides with your classmates and write a blog post in which you debate the strengths and weaknesses of each position. Write a blog post of at least 150 words exploring this issue, citing the text of the Civil Rights Act.

Everyone (Doesn't) Get Her Day In Court  - Justice Badge (50 points)

The majority in Briscoe v. LaHue relied in part on a common argument against expanding certain legal rights: if the Court entitles police witnesses to only qualified immunity and not absolute immunity, there will be a flood of lawsuits brought against police officers by angry criminal defendants.  Is this a valid reason for refusing to broaden a right?  Is it worth denying a small number of people their due recourse because a large number of people might clog the proverbial wheels of justice with baseless claims?  On the other hand, is it fair to those with legitimate claims to have to wait while the courts sort through mounds of meritless lawsuits? Choose one side, and write a blog post of at least 150 words exploring this issue. Please reference Briscoe in your post.

Official Immunity and Section 1983 - Civil Rights Badge (50 points)

42 U.S.C. Section 1983 - often referred to as “Section 1983” - very clearly states that “[e]very person” acting under the color of law who deprives a citizen of their rights shall be liable to that citizen.  In light of this, why do you think the Supreme Court allows certain government individuals to be absolutely immune from suit? Would it change your answer to learn that Congress passed Section 1983 in large part as a response to violent Ku Klux Klan problems in the South after the Civil War, but that the law is now typically used to remedy everything from allegedly unconstitutional prison conditions to claims of police misconduct? Write a blog post of at least 150 words exploring this issue.

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Additional Resources

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