Summary
denying motion to dismiss but noting that a mere showing that defendants "came to the station house after [plaintiff] had already been detained and asked her questions" would not be enough to hold defendants liable for false arrest
Summary of this case from Coward v. Town Village of HarrisonOpinion
No: 01 Civ. 6506 (GEL)
August 26, 2002
OPINION AND ORDER
In this civil rights action, plaintiffs Walter Hickey and his mother, Annie Hickey, bring suit on numerous federal and state grounds against the City of New York and a number of police officers and other officials in connection with an incident in which Walter Hickey was shot by police responding to a report of a disturbance at the plaintiffs' residence. Before the Court is a motion by two of the defendants, Queens County Assistant District Attorneys Peter Reese and James Delaney, for dismissal of the complaint as to them on grounds of absolute prosecutorial immunity. The motion will be granted in part and denied in part.
BACKGROUND
Plaintiffs' voluminous complaint alleges thirty-six different causes of action in fifty-two pages and two hundred and sixty-two numbered paragraphs. It is not always clear from the complaint which causes of action are asserted against which of the fourteen named individual defendants (as well as two municipal defendants and "Unknown John and Jane Does"). Reese and Delaney respond in kind, asserting a blanket immunity to all of the charges in the complaint, without pausing to sort out which of the causes of action are brought against them.
In sum, the complaint charges that Walter Hickey's ex-wife, Christine Brown, went to the house in Queens where Walter and his mother lived, demanded money, and became violent. (Compl. ¶¶ 17-25.) When Annie Hickey separated Brown from her son, Brown ran to the kitchen, called 911, and falsely reported that Walter had a gun and was shooting people. (Compl. ¶¶ 26-28.) After two police officers arrived in response to the call, they allegedly shot Walter without provocation, despite the efforts of Annie and Walter Hickey to explain to the police that they had done nothing wrong and that they posed no threat. (Compl. ¶¶ 30-41.) The complaint charges that the officers continued to beat, curse and threaten the plaintiffs, even after they had clearly been overpowered or disabled by the police. (Compl. ¶¶ 42-56.) Thereafter, while Walter was still bleeding in the front yard, Annie Hickey was allegedly taken into custody and transported to the 105th precinct station house. (Compl. ¶¶ 57-71.)
The complaint says little about Reese and Delaney. Essentially the only substantive allegation is that they "illegally questioned" Annie Hickey while she was being detained at the precinct, "and tried to make her change her story, in an effort to cover-up the wrongful shooting of Mr. Hickey and . . . to deprive Mr. Hickey and Ms. Hickey of their civil rights." (Compl. ¶¶ 72-73.) The complaint also charges, in stating the numerous causes of action, that the "defendants" are liable on a variety of theories for various illegal conduct. The only cause of action in which Reese and Delaney are charged by name is the Second, for the false arrest of Annie Hickey, which specifically states that Reese, Delaney, and others, "held Ms. Hickey against her will, detained her, and interrogated her while she was in custody." (Compl. ¶ 113.) This action is alleged to "have constituted a false arrest of Ms. Hickey, as defendants knew that Ms. Hickey had not, was not, nor was going to commit a crime, and they knew that they did not have probable cause to arrest Ms. Hickey." (Id.)
It is also alleged that "Reese or Delaney" instructed a police officer to make unspecified changes in an unspecified written statement prepared by the officer because ""it's not good enough' for what "we need."' (Compl. ¶ 76.) Nothing about that allegation describes or fairly implies any wrongful conduct. The complaint also makes conclusory legal assertions that, in their various actions, Reese and Delaney were acting in an investigative rather than a prosecutorial role and should not therefore be accorded absolute prosecutorial immunity. (Compl. ¶¶ 77-79.)
It is unclear to what extent, if any, plaintiffs allege liability on the part of Reese and Delaney in connection with the other causes of action. Although many of them refer generally to "defendants," some, such as the various excessive force and battery charges involving the shooting, clearly did not involve the prosecutors in any way, as they are not alleged to have played any role in or been present for those events. Similarly, the charges of deliberate indifference to the medical needs of the prisoners do not refer to actions of Reese and Delaney in any way. Others, such as the false imprisonment and malicious prosecution allegations, involve conduct in which it can be inferred from the allegations of the complaint that the prosecutors did play apart.
DISCUSSION
I. Absolute Immunity
Reese and Delaney move to dismiss pursuant to Rule 12(b)(6). In assessing such a motion, the Court must accept as true the allegations of the complaint. Jackson Nat'l Life Ins. v. Merrill Lynch, 32 F.3d 697, 699-700 (2d Cir. 1994). Thus, the question here is not whether these defendants are liable for any misconduct, but simply whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998) (internal citations omitted).
Defendants' principal argument is that as prosecutors they are absolutely immune from suit. (Def. Br. 3-6.) The scope of prosecutorial immunity is undoubtedly broad. Since Imbler v. Pachtman, 424 U.S. 409 (1976), it has been established that a prosecutor is absolutely immune from civil suit for any activities that are intimately associated with the judicial phase of the criminal process, such as "initiating a prosecution and. . . presenting the state's case." Imbler, 424 U.S. at 431; Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (holding same). The scope of that prosecutorial immunity extends beyond the trial, to the appellate stage of criminal prosecutions. Parkinson v. Cozzolino, 238 F.3d 145 (2d Cir. 2001). A prosecutor is also absolutely immune for making a decision not to prosecute an individual for alleged crimes. Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993); Schloss v. Bouse, 876 F.3d 287 (2d Cir. 1989).
It is equally clear, however, that "[t]he actions of a prosecutor are not covered by absolute immunity merely because they were performed by a prosecutor; rather, the question is whether the actions "are part of a prosecutor's traditional functions"' Parkinson, 238 F.3d 145, 150 (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996)). "In determining whether a prosecutor enjoys absolute immunity against any particular claim for damages, the courts are to apply a "functional approach' examining "the nature of the function performed, not the identity of the actor who performed it."' Id.
The case law draws a distinct line between the investigative and administrative functions of prosecutors, which are not protected by absolute immunity, and the advocacy functions of prosecutors, which are so protected. Increasingly, prosecutors play a vital role not only in bringing charges, trying cases and advocating the positions of the government in court, but also in participating in the investigations of crime. See Rory K. Little, Proportionality as an Ethical Precept for Prosecutors in Their Investigatory Role. 66 Fordham L. Rev. 723, 724 (1999). Nevertheless, when prosecutors involve themselves in functions that have typically been performed by police officers or investigative agents, they are as much (or as little) subject to suit as such officers. Investigations, searches, arrests, and giving advice as to the existence of probable cause for warrantless arrests have been held to be functions to which absolute immunity does not extend. See Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997) (holding prosecutor not entitled to absolute immunity for sworn affidavit to establish probable cause for arrest); Burns v. Reed, 500 U.S. 478, 493 (1991) (holding prosecutor not entitled to absolute immunity for providing advice to police in investigative phase of criminal case); Ying Jing Gan, 996 F.2d at 533 (finding prosecutor not entitled to absolute immunity for unreasonably exposing witness to risk of retaliation and for failure to provide adequate protection to witness); Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987) (finding prosecutor not entitled to absolute immunity when supervising and interacting with law enforcement agencies in acquiring evidence that might be used in a prosecution); Robison v. Via, 821 F.2d 913, 918 (2d Cir. 1987) (finding arrests and searches are generally police functions); Barr v. Abrams 810 F.2d 358, 362 (2d Cir. 1987) (recognizing distinction between filing criminal information and procuring an arrest warrant, and executing arrest warrant).
As stated above, the core of the allegations against Reese and Delaney is that they participated in arresting and detaining Annie Hickey without probable cause. This is specifically alleged in ¶¶ 13 of the complaint, and the paragraphs describing their questioning of her, read fairly and in context, imply that this was part of an effort to detain her illegally and conspire falsely to arrest her and her son. (Compl. ¶ 73.)
Remarkably, defendants assert "there are no-allegations that Annie Hickey was arrested." (Def. Br. at 5.) In fact, the complaint is emphatic on this score, plainly stating, "without any probable cause or reason to believe a crime had been committed, was being committed, or was about to or going to be committed, defendants illegally arrested Ms. Annie Hickey" (Compl. ¶ 112), and repeating similar allegations in numerous places (Compl. ¶¶ 57-61, 63, 66-67, 69, 71-72, 73, 75, 77-78).
Participating in an arrest and detention clearly is not part of the traditional advocacy functions of a prosecutor. If a police officer can be held liable for such conduct, there is no reason why a prosecutor who engages in the same activity should be held to be absolutely immune. And so the courts have held — denying absolute immunity for participation in illegal arrests, even when the participation was the lawyerly function of giving legal advice about the propriety of an arrest, Burns, 500 U.S. at 493, and certainly when the prosecutor is physically involved in the detention process, Robison, 821 F.2d at 918. of course, the factual allegations here are slim. If all that can be shown regarding Reese and Delaney is that they came to the station house after Ms. Hickey had already been detained and asked her questions, that may not be enough to establish, as charged in this complaint, that they actually "held [her] against her will [and] detained her." (Compl. ¶ 113.) But that conclusion must await development of the evidence. The complaint asserts that the prosecutors participated in an illegal detention, and it cannot be said that no facts can be proven consistent with the allegations of the complaint that could establish that claim. Accordingly, absolute prosecutorial immunity does not extend to the charged conduct.
As for the other causes of action, the situation is less clear. Although Reese and Delaney are not specifically named in the state law false arrest claim, or in the constitutional and state law false imprisonment claims, these causes of action are closely associated with, and apparently based on the same factual allegations as, the constitutional false arrest claim discussed above. It is logical to conclude that the general references in these causes of action to "defendants" are meant to encompass Reese and Delaney. Since the presence or absence of absolute immunity turns on what the prosecutor is alleged to have done, and not on the legal theory advanced or the label attached to the cause of action, these claims, too, may not be dismissed. The same applies to the various, rather vague, conspiracy allegations, at least to the extent that the prosecutors are held to have participated in the alleged conspiracies by their actions in connection with the allegedly illegal arrest of Ms. Hickey itself.
Defendants move to dismiss the conspiracy counts in particular. (Def. Br. at 6-7.) Their argument appears to be that if the prosecutors themselves are charged only with acts for which they are immune, they cannot be brought into the complaint merely by vague charges of conspiracy with other non-immune actors. Since, as determined above, Reese and Delaney are charged with personal participation in actions that are outside the scope of absolute immunity, the premise of this argument fails.
The complaint, however, also charges actions that are fully within the scope of prosecutorial immunity. The Eighteenth Cause of Action alleges a broad conspiracy to obstruct justice. However, the only specific participation alleged against Reese and Delaney is their failure to prosecute the officers who shot Walter Hickey. (Compl. ¶ 212.) Absolute immunity clearly attaches to the decision not to prosecute an individual for alleged crimes. Ying Jing Gan, 996 F.2d at 531. The more general obstruction of justice allegations seem to involve actions aimed at the prosecution of crimes and the misleading of courts and/or grand juries. Any action taken by prosecutors in these fora would also be protected absolutely.
Oddly, plaintiffs claim that they "have not brought claims against [Reese and Delaney] for failing to prosecute the police involved." (P. Mem. at 5.)
Moreover, neither side's brief refers to the fact that the "defendants" generally are charged with constitutional malicious prosecution and abuse of process in connection with the prosecution of Walter Hickey (Eleventh and Twelfth Causes of Action, Compl. ¶¶ 164-175), and related state law theories (Twenty-Sixth and Twenty-Seventh Causes of Action, Compl. ¶ 238). The general reference to "defendants" presumably includes Reese and Delaney, who in the normal course would be expected to have played a role in that prosecution. To the extent that these causes of action charge such actions as "initiat[ing] Mr. Hickey's prosecution" (Compl. ¶ 166), they fall clearly within the scope of absolute immunity. Imbler, 424 U.S. at 430-31. Similarly, the Thirty-Fourth Cause of Action, for defamation, charges "the relevant defendants" with making "knowingly false statements about Mr. Hickey, falsely accusing him of crimes." (Compl. ¶ 251.) Nothing in the complaint, however, refers to any statements made by Reese or Delaney at all, except implicitly to the charging documents themselves. Absent any allegations of statements made out of court, this cause of action also falls within absolute prosecutorial immunity. See, e.g., Buckley, 509 U.S. at 277-78 (prosecutor's allegedly false statements made during public announcement of indictment receive only qualified immunity because not tied to judicial process); Powers v. Coe, 728 F.2d 97, 103 (2d. Cir 1984) (prosecutor's statements to the press entitled only to qualified immunity).
II. Qualified Immunity
In a footnote, defendants also raise a claim of qualified immunity. (Def. Br. at 3 n. 2.) This claim is premature. It is certainly correct that, like the other defendants, Reese and Delaney are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But the mere fact that "Reese and Delaney became involved only after plaintiff Walter Hickey was arrested" (Def. Mem. at 3 n. 2), the entirety of their argument for qualified immunity, does not suffice as a matter of law to meet this standard. The complaint alleges that the two prosecutors participated in the illegal arrest and detention, not of Walter Hickey, but of his mother, Annie Hickey. There is no question that the right not to be arrested and subjected to lengthy involuntary detention in police custody without probable cause to support the arrest is firmly established, Dunaway v. New York, 442 U.S. 200, 205-07 (1979); Florida v. Rover, 460 U.S. 491, 499-500 (1983); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996), and any reasonable police officer, let alone prosecutor, would reasonably be expected to know that. See Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997) (citing Cook v. Sheldon, 41 F.3d 73, 88 (2d Cir. 1994)).
Once a factual record is developed, it may turn out that the prosecutors had reasonable grounds to believe either that Ms. Hickey was voluntarily present at the police station, or that, if detained, there was probable cause for her arrest. Under qualified immunity analysis, "officers can have reasonable, but mistaken, beliefs as to probable cause.., and in those situations courts will not hold that they have violated the Constitution." Saucier v. Katz, 533 U.S. 194, 205 (2001). See also Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995) (officer entitled to qualified immunity where he reasonably but mistakenly concluded that probable cause existed); Caldarola v. Calabrese, 2002 WL 1759778 (2d Cir. July 31, 2002) (officer entitled to qualified immunity for alleged false arrest where probable cause determination was based on materials compiled by private investigators at request of officer's superiors). But the fact-intensive question of what the defendants knew or reasonably believed, or indeed whether there is any material dispute about that question, can only be addressed on a fuller factual record, at summary judgment or trial. For now, the complaint specifically alleges that the defendants were aware that the arrest was illegal and without probable cause. If such knowledge can be proved, then qualified immunity would not apply.
CONCLUSION
For the reasons set forth above, the motion of defendants Reese and Delaney to dismiss the complaint as to them is granted as to the Eleventh, Twelfth, Twenty-Third and Twenty-Fourth and Thirty-Fourth Causes of Action. The motion is denied as to the Second, Fourth, Sixteenth, Nineteenth, Twenty-Sixth and Twenty-Seventh Causes of Action. All other causes of action are construed as not alleging any involvement of these defendants, either because they specifically name or otherwise identify only other defendants or categories of defendants, or because they rest upon actions in which these defendants are not alleged to have personally participated.
The complaint denominates each of two related but slightly different causes of action as the "Nineteenth." The motion is denied as to both of them.